We have posted heaps of articles about surveillance in workcover claims, however feel the urge to share this ‘interview’ with a (US) private investigator, as it highlights again that workcover insurers are increasingly turning to Social Media (such as Facebook and Twitter) in an attempt to discredit injured workers….
How they use surveillance in workcover claims
How To Use Surveillance in Workers’ Compensation Cases
August 13, 2014
by alex | published on SEAK (SEAK is a continuing education, publishing and consulting company in the US)
How To Use Surveillance in Workers’ Compensation Cases: An Interview With Stephen Kelly of Scope Investigations, a Longtime SEAK Exhibitor
Interviewer: I’m here today at the SEAK National Workers Compensation and Occupational Medicine Conference with Stephen Kelly of Scope Investigations. Stephen, what kind of investigations and surveillance are available in workers comp cases?
Stephen Kelly (assumed PI): We do everything from straight surveillance of injured workers. We do Internet investigations. We do background investigations, neighborhood canvases, activity checks, that sort of thing.
Interviewer: Okay. You mentioned Internet investigations. Tell me about how you might use social media in workers comp investigations.
Interviewer: Let’s talk about video surveillance which you mentioned in workers comp cases. Could you tell me one or two success stories that you’ve had using video surveillance in workers compensation cases.
Stephen Kelly: Sure. We do countless surveillances in the course of a year. A lot of surveillances aren’t necessarily slam dunk homeruns you get the person that’s out working when they should be out on a claim, that sort of thing. But, you do find that a lot of people… One thing we’ve had just recently this summer was a case where there was a woman out on a stress claim, couldn’t work. It was a workers compensation case. She couldn’t come to work. She’s got four kids. We followed her. We picked her up about 7:00 in the morning and they took off and they went to an amusement park. Spent the entire day in the amusement park toting four kids around just herself, no support staff, nobody else, four kids. We probably ended up with four or five hours of videotape on this case of her just on rides doing all kinds of things in the amusement park. That was probably about a month ago. Then, you always have the one that kind of sits with you. This one was probably about six months ago. Again, snowstorm, guy out with a bad back. We show up at his house. He comes out with his 16 or 17 year old son and they take off walking up the street. They went to about ten different homes and shovelled snow – driveways, the whole nine yards, just shovelling snow with a shovel, not a snowblower or anything else, shovel, him and his son. Again, another one of those situations where they shouldn’t be out working and they were.
Interviewer: Last question. What should employers and insurers know about surveillance in workers compensation cases?
Stephen Kelly: Well, I think that the more information that a surveillance vendor can be given from the employer or the insurance company the better. I know in talking to people that a lot of times I get some response from an employer or insurance company that says I’ve gone out and done surveillance, it doesn’t work. They don’t get anything. I think a lot of times we get set in doing things a certain way. Show up at 6:00 in the morning, work until 2:00 in the afternoon, and all we get is them coming out to get the mail. That’s not necessarily how you want to do surveillance. You want to cater it to what we know about these people. If he’s a hunter, we want to be out there at 4:00 in the morning during hunting season. If they are somebody that was known to be 23 years old, 24 years old, and they’re out for the last eight months, they’re probably not working at 6:00. We would want to get out there maybe a little later in the day, work them into the evening. Maybe we want to do Friday Saturday surveillance to do surveillance that way, solely because they’re 23 years old. They’re going to probably be more active in the evening than they are in the morning. You know, if they have kids we may want to cater it to weekend work when the spouse is not working so that we can get them out doing that sort of thing. It becomes a relationship between us and the employer. The more information that we can get we can cater that surveillance and not fall into patterns of doing it, and the successes will be a lot better.
Interviewer: Thank you very much, Stephen.
Stephen Kelly: Oh you’re welcome.
A few thoughts:
WorkCover will also scrutinise and monitor an injured worker’s social media for any “outrageous” comments or picture(s) and will use these to intimidate injured worker or worse.
Quite often, the workcover insurers will highlight a comment from a doctor’s report (whether the injured worker’s own treating doctor or an IME) or, even, a previously written or recorded statement about the/a change in the injured worker’s condition/ life. The defense (i.e. workcover lawyers) will then, of course, suggest to the court that based on what they have found on social media that “things can’t be all that bad..given that…”
The truth about an injured worker’s life is (generally speaking) not fully reflected on Facebook nor Twitter or any other internet site – nor is the extent a person is suffering from a psychological injury reflected on a day out at an amuzement park (!)… but workcover insurers will use ANYTHING against you. It is no wonder injured workers always feel as though they are doing/ or have done something wrong or feel they are a fraud, just because they try to live another day.
If you have medical restrictions from work because of a work injury, it’s very important to follow your treating doctor’s orders.
Workcover insurance companies will often try to find out whether an injured worker is really, really, really telling the truth about his or her injuries. They may set up surveillance video in order to observe and record injured workers in their everyday lives, to see what they are really “capable” of. If they find that you’re lifting what you’ve been restricted from lifting, for example, they’re not going to want to continue paying weekly wages for you to not work at a job where you need to lift.
However surveillance videos are not necessarily something to be afraid of or concerned about. They shouldn’t pose a problem for you, as long as you follow a few important rules:
1. Be honest and open about your physical (and/or mental) limitations. Lying isn’t acceptable under any circumstance. When it’s done to exaggerate a workcover injury, it can only end up hurting your case and getting you into big trouble.
If you tell your doctor you can’t do something physically, and you’re caught on surveillance doing something more strenuous, you lose all credibility and likely lose you case. Then any real injury you may have will not get treated as it should. This can be small things. For example don’t tell your doctor that you can’t drive, if you occasionally drive a very short distance, with modifications (i.e. steering knob, cushion etc). Simply tell your doctor how it is, say for example :”I find it very difficult to drive because…but if I really need to I will occasionally drive up to the (shop/pharmacy), some 2-5 KM…” That way if you get “caught” driving, you did nothing wrong as you stated you can drive a little bit, in discomfort, whatever. But if you told your doctor that you can’t drive…and they ‘catch you’… then you may be in trouble.
2. Don’t try to take on more than you should or are allowed to do. If your doctor places restrictions on your activity, follow those restrictions. First, if you don’t, you could set back or permanently damage your body while it’s trying to heal. Second, if you make your injury worse or hurt yourself trying to compensate for your limitations, then you could risk losing your benefits.
But another result of trying to do activities beyond your limitations is that you could harm your case permanently if you are seen on surveillance video. Even where you are just trying to push through the pain and do something quickly, you could be hurting yourself both physically (and financially!) if that moment is captured on video.
It’s much better in the long-run to just ask for help to do physical work that needs doing, and to put off activities that you shouldn’t do until your doctor lifts your restrictions.
3. Don’t be overly afraid of the prospect of the surveillance video. If you’re being honest, and listening to your doctor, you should be fine. And if there is something caught on tape that the insurance company is trying to spin against you, it can ususally be explained or disproved.
An injured worker was not long ago cut off from benefits after she was recorded doing some “work in her garden, raking leaves, including rolling in a garbage bin”. But when the video was fully examined, it showed that it really didn’t go against anything that she was actually claiming she couldn’t do. Looking at the video closely can show that just because you engaged in an activity that looks physical, you may have done it in a way that supports your claim for your injury.
Sometimes the video can seem to contradict what you’re claiming you can’t do, but even then you have an opportunity to explain what is really happening. Maybe you were really in a lot of pain when you were lifting or bending, or you had to rest every time you moved and the tape doesn’t show that.
We, injured workers, need to continue to live our life as best as we can. We can’t hide in our home just because we are worried about a surveillance video making us look ‘bad’.