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You’re Under Surveillance

If you’ve been injured on the job, you’re entitled to receive medical treatment and lost wages. Depending on the significance of your injuries, that treatment could go on for months or years. If you fall into the latter category where your treatment has been continuing and is expected to continue, the probability of being under surveillance is almost 100%. It’s not expensive for a carrier to pay for someone to follow you around (night or day) or to sit outside your house and record your activities.  Doing so is not considered an invasion of privacy because the activities are done in public.  As you undergo treatment with doctors authorized through the worker’s compensation carrier, you will be assigned restrictions.  These are physical restrictions that state what kinds of activities you are to avoid.   Such things as lifting over a certain amount of weight are common types of restrictions.  Restrictions are based on the type of injury or injuries you’re treating for and your pain complaints when seeing the doctor.  So, if you’re experiencing significant pain, and explain such to your doctor, he/she will make a note of the level of pain you’ve expressed.  Now, when it comes to surveillance, here is how what you’ve been given as restrictions, and what complaints of pain you’ve made to your doctor come in to play – the insurance carrier wants to obtain footage of you:

  1. Doing activities outside of your restrictions.
  2. Doing activities you told your doctor, adjuster, or nurse case manager you cannot do.
  3. Doing activities that are inconsistent with the complaints of pain you described.
  4. Working at another job if you have indicated you are not working and not earning income.

If you’ve been told by your doctor not to lift anything over 20 pounds, surveillance video shows you carrying around 60lb bags of concrete, we’ve got problems.  Your case will essentially be worth nothing.  In addition, you may be subject to criminal fines and prosecution for insurance fraud.  During the course of your claim, you will receive a request to report your earnings every 2 weeks.  The form is officially known as a DWC – 19.  You must fill these out and return them to the carrier every two weeks or they can suspend your lost wage benefits.  If you complete the forms in a way that reflects you are not earning any other income besides the work comp benefits that needs to be true.  If you’re earning income from another source by working at another job with another employer, again, we’ve got problems.  Here’s a common scenario – you suffer a workplace accident.  Your employer at the time of the work accident does not have an accommodating position, or told you not to return to work until you were 100%.  Either way, the only income you have is what the carrier pays every 2 weeks.  You are injured, you are in pain, but you have an obligation to support your family, pay bills, essentially live life in a way that is as close to the life you were living before the accident.  You find out about an opportunity to work with another employer.  Whatever the job is, you believe you can perform the essential functions of the job.  You begin work.  You’ve got the guy doing surveillance for the insurance carrier following you around.  He films you going into a building designated as a business.  Another more clear cut scenario is if the surveillance footage shows you actually performing work.  In the first instance, people have tried to explain that they were only going into the office building, and remaining there for hours, because they were visiting with a friend who either owns or works there.  Because there is no footage of them actually working, this excuse is the most common.  This excuse may work if you went there one time.  However, repeated visits to a business, especially wherein you remain for hours each time, does not look favorable.  Throw in the fact that the business happens to be providing a type of service you’re capable of doing, and things look even worse.  As to the situation where footage shows you actually performing work, there’s not much that can be done to explain such activity.

Be aware of some of the circumstances we’ve encountered:

  1. An insurance carrier slashes a guy’s car tire while he’s away from his vehicle. Video is taken of him changing his tire.  The purpose was to enter the video footage into evidence in order to try and argue that he was more physically capable than what he described.  Claimant testified that he needed to attend a doctor’s appointment.  He did not want to miss the appointment and be considered medically non – compliant.  Plus, he needed the treatment to heal.  He did not have any choice but to change his tire.  He testified to the pain he experienced while doing so, and that lingered after.  We were able to have that surveillance footage dismissed as not indicative of the claimant’s intent to mislead his physicians, or otherwise exaggerate his pain complaints in an attempt to obtain worker’s compensation benefits.
  2. A claimant testifies in a deposition that she cannot use her left arm. She testifies that she does not even use her left arm while driving.  The carrier takes surveillance footage of her driving.  Then they play the footage back into a mirror in order to reverse what is shown on the film, and make it appear as though the claimant was driving with her left arm.  A close inspection of the footage revealed the scheme.  Her vehicle license tag showed up backwards in the footage making it obvious that the footage had been tampered with.  The surveillance footage was thrown out.
  3. In New Jersey, a claimant testifies he’s only capable of limited physical mobility. He is a single guy in his late 20’s.  His birthday comes around.  In an attempt to cheer him up, his friends take him to a local bar.  The insurance carrier hires an attractive female to enter the same bar while the claimant is there.  Claimant was sitting down, but the female begs, pleads, and otherwise persuades the claimant to join her on the dance floor.  Claimant reluctantly complies with the request.  Insurance carrier takes surveillance of the claimant dancing with the female in an attempt to argue that he was more physically capable than what he had testified to, and what he had informed his doctors he was capable of.  The outcome of how this footage impacted his case is uncertain because it is not one we handled and did not occur in Florida.  We provide the example as a warning and indication of what you can expect.

When you are undergoing treatment for your work related injury, we advise our clients to act as though they are playing a part on a reality show.  Pretend as if they are on film all the time.  Keeping such a mindset helps avoid them from doing anything that would prejudice their claim.  Talk to us by calling 727-451-6900 or visiting our website dolmanlaw.com.