There are jurisdictions where workers comp is very employee-friendly, and it seems the employee can do no wrong. In the mind of a judge, it is the employee who suffered a great loss while working for your company. They are in daily pain because of injuries suffered on the job site. They are trying to make ends meet on reduced wages.
For the most part, this is correct. But every adjuster has a few cases where there is that gut feeling that something is not right. But, if the medical adds up to supporting ongoing disability, and a nagging feeling still exists, then it is time to run surveillance. But how does it work to help in a specific case? There is no question the claimant is injured. More than 10 seconds of video of the claimant getting the mail is needed. Here are 5 ways to think about surveillance and its benefits.
Use a Surveillance Firm that Boasts Results
There are many surveillance firms available. Some of them specialize in legal backgrounds in law enforcement, some with military backgrounds, and some with insurance backgrounds to name a few. Whatever the case may be, a reputable firm must be chosen. Video evidence of the claimant doing something outside of the medical restrictions must be obtained. Showing this as repeated behavior is key.
Obtaining this kind of evidence to help the case is partially due to luck. But this is where a skilled investigator plays a huge role. Through a background search including social media and understanding the person’s habits, one can begin to theorize how and when the subject will be active. For example, if the claimant has pictures of deer on a Facebook page, it can be reasoned the Fall season is likely an outdoor time for the worker to be active.
Feedback from peers in the specific industry and carriers is helpful. Some carriers now have their own surveillance unit, and it can be considerably less costly to use a carrier’s firm than to go outside of the network. This is a large expense. But if good video is recorded, it can save so much more in overtime cost and is a wise investment.
Plan on 3-5 Days Worth of Surveillance
As mentioned above, the person must be shown breaking medical rules. If the claimant has restrictions of no lifting over 15 lbs and is caught at the grocery store lifting 2 bags of groceries, that is not exactly case-changing evidence. But, if the worker is lifting groceries one day, then going home and doing yard work for 2 hours, helping a neighbor the next day cut a tree down, then waxing the car a day later followed up by working with a friend to remodel a kitchen, now potential evidence is building to show a pattern. It shows the worker living a normal life with little to no medical problems.
The scenario of finding evidence is probably not going to happen on every file, but it is amazing to discover what people are doing on their spare time. Some people hole up in houses and only stick arms out to retrieve mail from the bin by the front door. Those people may have experienced having surveillance used on them! While others are out golfing, playing softball, deer hunting, or boating with a shoulder injury to name a few scenarios. Whatever it may be, the employer needs enough video to justify the person breaking medical restrictions as often as possible. This is especially helpful when an IME supports an ongoing disability. Then after video is successfully recorded, it is sent to the IME doctor for review. And the doctor may change an opinion to show no ongoing medical disability. If there is a suspicion that a claimant is not 100% truthful with a disability, and the right video and doctor’s opinions coincide, then the adjuster’s suspicions are justified.
Be Sure Reports Detail All Activity
Just the video alone can be enough to swing an opinion to deny ongoing benefits. In addition to the video, record every activity, action by action. Sometimes the events unfold before the investigator can get the camera rolling. Or the investigator cannot get a shot due to location. Investigators should still document the activities of the subject in great detail. Chances are the agency may be deposed on the case at a later date, so most reputable firms are extremely detailed in every fact and activity on the case. In these cases, it is preferred to have too much information than not enough.
The Video Obtained Has to be Clear
Getting video of the claimant is very important, but it can be worthless if the claimant is out of view or the picture is fuzzy. A lot of this comes down to the investigator’s experience and the quality of the equipment the firm uses. Ask for examples of video and reports to gain an idea of how a case is handled.
The Subject Has to be Violating their Restrictions Frequently
We mentioned above getting 3-5 days worth of video to show the subject breaking restrictions on multiple occasions. There are cases of a judge viewing a video of the claimant breaking restrictions on one occasion and then turning to the subject and saying “Why were you lifting 40 lbs when your restrictions state you should only lift 20 lbs?” The response is usually something like, “Boy I must have been having a good day that day because I could hardly lift anything at all.”
It may seem unbelievable, but depending on the jurisdiction, some judges believe it. Show the judge the worker’s behaviors are not just a one-time thing. The person is violating restrictions on a daily basis for 4 straight days. Imagine if surveillance could be done for 30 days in a row, so much evidence of restriction violation would exist. Malingering would be simpler to prove.
And that is the goal and challenge when recording a person doing the wrong thing more than one time. It shows a pattern and makes the point the person is leading a normal, pain-free life, despite reporting otherwise to the doctor. If blatant disregard is evident through the use of video on multiple occasions, there is a great chance of getting the desired result — terminating the fraudulent claim.
Surveillance can be a useful tool to help confirm a claimant’s honesty. But to benefit from it fully, certain guidelines must be followed. First, a reputable firm must be used making sure the firm is descriptive and up on the latest technology. Try to obtain as much video as possible and then tie it into the case defense. Although not every person “doing fraud” will be caught, chances are those violating the medical restrictions and working second jobs under the table will be caught.
Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center.
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