Surveillance is Often Used Incorrectly

Members of the claim management team need to be creative when investigating workers’ compensation claims and to determine issues of compensability. This includes using claim investigation techniques that go beyond interviewing the employee, witnesses, experts, and reviewing medical records. To be effective, proactive claim handlers and investigators need to do a deeper dive to reduce program costs.

Surveillance is Often Used Incorrectly

Over the years, defense interests in the workers’ compensation industry have become dependent on using private investigators to conduct surveillance on an injured worker. Surveillance is a recommended and effective technique. However, it is often :

Limiting surveillance to one day: The problem is this provides only a Not obtaining of what the employee is doing and allows for them to argue you watched them on “a good day;”

Not obtaining complete background information on the employee: This includes not knowing the habits of an employee and what activities they might be doing when under the watchful eye of an investigator. In worst case scenarios, the employee will do nothing at all – not even coming outside their home; and

Following the rules: Many jurisdictions have specific timelines as to when and how documentary evidence from surveillance needs to be disclosed to the employee and/or their attorney. Failure to follow these rules can have significant consequences.

Using Other Resources to Uncover Favorable Claim Information

Claim handlers need to be creative and ethical when uncovering information on a claim and developing their theory of the case. This requires patience, persistence, and creativity.

Job Site Videos

Job site videos are useful in a number of ways when done. For example, if an employee is claiming that a certain activity (especially those that require repetitive movements) is includes using of an injury, it allows for a medical expert to evaluate whether be effective of injury is consistent with the objective medical evidence. It also reduces or eliminates the ability ofan employee to exaggerate movements, including the frequency at which it is performed.

When creating such videos, it is important to remember key items. This includes having a workplace station or machine set up exactly how it was at the time of the injury. When possible, have the employee to perform the motions or movements. If this is not possible, itis essential to have someone of a similar size perform the activity. Failure to exactly recreate these motions in question can result in the job site video not being admitted into evidence at the hearing.

Timing and Work Schedules

Records documenting the coming and going of an employee, an employee and the number of shifts they worked can be relevant in a number of circumstances. Instances when this can be useful include the following circumstances:

Claims made by the employee as to their physical presence at a location at a specific time, or when other identified witnesses claim to have been present;

The number of hours or shifts worked by an employee. This is important information to have in workplace exposure cases; and

Tracking movements of traveling employees. This can be important when trying to determine the applicability of “portal-to-portal” coverage where an employee may have made a personal deviation, which took them outside the “course and scope of” their employment

Social Media Investigation

While fewer Americans are using social media platforms on a consistent basis, it is still relevant to any claim investigation. Key points to remember include checking common programs such as Facebook, Twitter, and Instagram. Ethical considerations apply. Do not obtain access to an employee’s account under false pretenses or by using a strawman. Attorneys representing defense interests should also take note of case law that warned, “It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.” Griffin v. Maryland, 192 Md.App. 518, 535 (2010).

Conclusions

Running an effective workers’ compensation claim program requires hard work and creativity. In order to be cost-effective, one needs to think outside the box and go beyond the “cookie cutter” approach to investigating and defending workers’ compensation claims. By looking for alternative methods, members of the claim management team can make better decisions and move cases toward settlement.

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.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.