On the surface, it seems plausible. After all, anyone with an injury can have fluctuating symptoms. But this defense can be misused to mask malingering, symptom exaggeration, or outright fraud. The best way to counter this excuse isn’t through confrontation—it’s through long-term, thorough investigations that paint a complete and consistent picture.
The “Good Day/Bad Day” Problem
Imagine this: an employee claiming total disability is filmed mowing the lawn, playing basketball, or lifting heavy objects. At a hearing, instead of denying the activity, the worker admits to it—then explains they were simply having a rare “good day.” They testify that most days, their pain prevents them from functioning normally.
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This defense creates enough doubt to undermine the credibility of short-term surveillance. Judges and hearing officers may sympathize with the idea that pain comes and goes. Unless the employer has stronger, long-term evidence, the claim may still stand.
Why One-Time Surveillance Falls Short
Employers sometimes rely on a single surveillance video to dispute a claim. While it can be useful, one isolated clip is rarely decisive. Short investigations leave too much room for interpretation:
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Easy rebuttal: Claimants dismiss evidence by citing temporary improvement.
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Judicial skepticism: Judges recognize that recovery and chronic pain fluctuate.
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Missed context: A single snapshot doesn’t show how often the activity occurs or whether it contradicts medical restrictions.
The result? A costly investigation that doesn’t hold up in litigation—or worse, an inflated settlement based on an unchallenged claim.
How Long-Term Investigations Strengthen Your Case
To counteract the “Good Day/Bad Day” excuse, investigations need to extend over time and capture a pattern of behavior, not just a moment. Here’s why longer surveillance makes a difference:
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Consistency Over Time
Multiple recordings showing the claimant engaging in the same activities—lifting, exercising, driving long distances—demonstrate that these aren’t isolated incidents. -
Contradiction of Testimony
If the claimant says they can’t walk without assistance, but video repeatedly shows them walking unassisted, their credibility is significantly undermined. -
Medical Validation
Long-term evidence can be shared with treating physicians or IME doctors, who can compare the observed activity with medical reports. This helps ensure treatment and restrictions align with reality. -
Settlement Leverage
Strong evidence discourages prolonged litigation. Claimants and their attorneys are less likely to press for large settlements if confronted with repeated proof of inconsistent behavior.
Best Practices for Employers
Employers don’t conduct surveillance themselves, but they play an essential role in ensuring investigations are effective. Here’s how you can support long-term strategies:
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Communicate Early Suspicions: If you notice red flags—missed doctor appointments, refusal of transitional duty, or reports that don’t match the injury—notify your adjuster immediately.
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Request Ongoing Updates: Ask investigators to refresh surveillance before major hearings, depositions, or settlement negotiations. Claims can drag on for months or years, and outdated footage may no longer be persuasive.
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Balance Costs and Risks: While long-term investigations are more expensive, they are justified in high-exposure claims where fraudulent behavior could devastate your company’s finances.
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Work with Experts: Partner with experienced, licensed investigators who understand workers’ comp cases and know how to document activity in a legally defensible way.
What Not to Do
Employers must avoid missteps that could compromise an investigation or open the door to legal challenges:
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Relying on Rumors Alone: Tips and gossip are helpful, but they must be backed by hard evidence.
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Harassment or Obvious Surveillance: Making the claimant feel intimidated can backfire in court.
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Cutting Corners: Short, one-time checks may seem cost-effective, but they rarely withstand the “Good Day/Bad Day” defense.
The Bigger Picture: Protecting Program Integrity
Fraud and abuse are not just financial problems; they undermine trust in your workers’ compensation program. Every fraudulent claim that slips through takes resources away from legitimately injured employees and increases costs for your business.
Long-term investigations are about more than catching fraud—they’re about ensuring fairness. By countering the “Good Day/Bad Day” defense with thorough, consistent evidence, employers reinforce the principle that workers’ comp is there to support recovery, not exploitation.
Final Thoughts
The “Good Day/Bad Day” defense is one of the oldest tricks in the book, but it doesn’t have to derail your fraud prevention efforts. With long-term investigations, strategic employer involvement, and collaboration with your adjuster and investigators, you can build a strong case that withstands courtroom excuses.
When it comes to fighting fraud, a single snapshot won’t cut it—but a well-documented pattern tells the real story.
Michael Stack, CEO of Amaxx LLC, is an expert in workers’ compensation cost containment systems and provides education, training, and consulting to help employers reduce their workers’ compensation costs by 20% to 50%. He is co-author of the #1 selling comprehensive training guide “Your Ultimate Guide to Mastering Workers’ Comp Costs: Reduce Costs 20% to 50%.” Stack is the creator of Injury Management Results (IMR) software and founder of Amaxx Workers’ Comp Training Center. WC Mastery Training teaching injury management best practices such as return to work, communication, claims best practices, medical management, and working with vendors. IMR software simplifies the implementation of these best practices for employers and ties results to a Critical Metrics Dashboard.
Contact: mstack@reduceyourworkerscomp.com.
Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/
Injury Management Results (IMR) Software: https://imrsoftware.com/
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