Surveillance is now the norm, not the exception, in most injury cases, particularly in workers’ compensation cases. I don’t know whether insurance companies have tapped into some sort of federal grant money to pay private investigators, but if you have any significant case, you can be assured that you will be watched, and probably filmed, at some point in your claim.
In the 26 years or so I have been practicing law, it used to be that only a serious injury claim merited the time and expense of surveillance. However, lately I have received the gift of surveillance video in single arm, leg and even in a claim that involved only a hand injury.
I tell my clients that they need to be aware not only of their activities, but how their activities may appear if videotaped. In workers’ compensation cases particularly, perception is reality. For example, many times the PI will follow the client to the food store. When the client comes out of the store carrying a large bag, it is impossible to tell if the bag contains a 12 pack of toilet paper or a 12 pack of beer. Especially in cases where the accident itself is in dispute but also because in every workers’ compensation case the extent of the injury is in dispute, it is important to avoid even the appearance of activity beyond the medical limitations. As I tell clients, if you wind up in a situation where you are forced to try to explain that ‘this is not what it looks like’ at least part of your case is already in trouble. Remember, ‘a picture is worth 1,000 words’.
Many of these videos are virtually worthless to the defense. One video the defense recently submitted at a hearing showed the claimant slowly and painfully walking around with a crutch, picking up cans (one at a time) to sell for cash. The point the defense was trying to make was that the client was ‘working’ but it actually clearly established the extent of his injuries, even after surgery.
However, some of these videos can gut a claim, especially if the client appears to be (or is) engaged in activities above his or her medical limitations, or is engaged in questionable activities. For example, in one recent case, the client was on ‘sedentary’ work restrictions, and was given a sit down job scanning documents. He was questioned at deposition about his restrictions and stated he was unable to perform anything other than that extremely limited duty. Two days later, I received a video (in 5 parts) showing the client clearing large bags of debris from his yard, transporting them on a flatbed trailer to the dump, and heaving them up into the dumpster. This took place over the course of several hours. His claim went into the dumpster along with the debris.
In another case, the client was observed frequenting ‘drug dens’. The insurance company requested that his pain management physician drug test him at his next appointment. Not surprisingly, his test revealed a cocktail of drugs, 99% of them non-prescription.
Virtually all of my clients cannot and will not be filmed doing activities beyond their medical restrictions because they are simply not physically capable of doing so. However, it is still important to be mindful of how even innocent activities can look when filmed and presented out of context, especially in the difficult workers’ compensation climate today.
By John Roxon
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