Surveillance in workers’ compensation plays an important role in resolving claims and detecting fraud.  Given its expenses, there are various factors members of the claim management team need to consider before hiring a service provider to conduct surveillance.  If these issues are not considered, the bottom line of a workers’ compensation claims program will suffer.

Surveillance in Workers’ Compensation Basics

The purpose of hiring an investigator in workers’ compensation cases is to observe and document the movements of an injured employee.  This allows the defense interests to introduce first-hand evidence into a hearing on the merits to demonstrate what someone is doing and their functional abilities – when they do not think someone is watching.

The first and most important step in hiring a service provider to assist with this activity is to find someone who is credible, ethical, and experienced.  Failing to take these factors into consideration can result in adverse findings.

When Should Surveillance be Used?

Not every case requires the use of a private investigator.  Instances where surveillance in workers’ compensation can either be helpful or have an effective impact include the following:

• Instances where credible information of fraud is received and the injured employee’s movements and activities need to be closely monitored;

• Cases where the employee is working an unreported second job or engaging in “cash” driven business activities. This can include employees who might be more active in certain times of the year;

• Claims involving employees with a long history of work and other personal injuries. “Frequent fliers” should always be given special attention;

• Employee’s who exhibit signs of malingering or are presenting at their medical appointments with conflicting pain complaints; or

• Injuries that occur under unique or interesting circumstances. Examples include the “Monday morning” injury, injuries that occur before or after lay-offs, or during times of labor disputes.

Getting the Right Background Information

Background information on the injured employee’s habits is important before using an investigator for surveillance in a workers’ compensation case.  Given the cost and time involved, it is important to know when someone will be at a particular location and at what times.  Information that can be useful and collected via discovery can include:

• Dates and times of doctor appointments;

• The date and location of the independent medical examination or various workers’ compensation proceedings;

• Places where the employee frequents such as attending religious services, social events and clubs, and restaurants or sporting events; and

• Hobbies and other activities such as gardening, other yard work, or coaching a sports team.

Other Sources of Free Information

The advent of the Internet has created a treasure trove of free information.  This includes where they were born, lived (including specific address), and photographing or postings commonly found on social media.  Members of the claim management team who use social media for background information on an injured employee should be mindful of some simple rules:

• Research on information open to the public is generally fair game when it comes to access by an adverse party. If someone does not closely lock down their security settings on platforms such as Facebook, Twitter, or Instagram, the information in the public domain can be used;

• Use of a third party or “straw man” to connect to an injured employee is generally unethical and can result in information obtained from the query to be inadmissible; and

• Asking for passwords from an injured employee is illegal in some states. That does not prevent defense counsel from bringing a motion to compel to obtain a court order for passwords.  Case law in this area is developing.

Interested stakeholders should look beyond social media and access genealogy websites.  Again, if information is published online and not obtained via mischievous means, it will likely be admissible.  Any useful information online should be printed and/or electronically stored immediately.  This is because information can be deleted, removed, or locked down just as quickly as it is posted.

Conclusions

Surveillance in workers’ compensation will always be a part of strong defense. When used, it should be done in an ethical and legal manner.  It must also be used in a cost-effective manner to avoid excessive spending and preserving the stability of a workers’ compensation program.

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/

©2019 Amaxx LLC. All rights reserved under International Copyright Law.

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

Central to successful leadership is attention to detail, solid work ethic and commitment.

Members of the claim management team and fully-engaged employers must exhibit these same traits when it comes to workers’ compensation claims.  All claims must be investigated promptly – by the book with no corners cut.  This process also includes the development of best practices to manage risk and control workers’ compensation program costs.

Responsibilities of a Claims Leader

There are several goals a good leader must undertake when developing a program.  This is something that can be done inside an insurance carrier or company.  Items to consider should include:

• Develop a program to sniff out fraud. This program includes being proactive to prevent it from taking place and detecting it early on to mitigate program costs;

• Update upper management within the organization on issues concerning the overall workers’ compensation program. This position should be able to effectuate and promote change;

• Understand how to conduct an effective investigation. This is especially important in more complex claims or those which involved special or unique circumstances; and

• Coordinate all efforts between defense counsel and the clients. This should include all interested stakeholders to promote an effective program.

Special Investigation Unit: Dealing with the Tough Claims

Not all workers’ compensation claims are the same.  Some claims are more difficult than others.  This can include instances where the employee sustains a severe injury, the circumstances surrounding the claim are suspect, but difficult to prove it did not occur or fraud.  Proactive claim management teams and employers can address these barriers by developing a “special investigation unit.”

Teamwork is key when working on special claims. It all starts with a dedicated leader who knows how to peel back the layers and get to the bottom of things.  Important characteristics of this leader should include:

• Someone with law enforcement or military background. These are people who faced difficult challenges in the past and are resourceful;

• A person who has a reputation for being fair and honest. Remember, all injured employees need to be treated with dignity and respect. Integrity is paramount;

• Knowledge of the law and other applicable tools to complete the goal. An attorney can be considered for this role, but not necessarily required; and

• A leader who can effectuate change within an organization.

Leading from the Front – Taking the Lead

The leader of a special investigations unit needs a strong supporting crew.  This can include assistance from the following departments:

• Human Resources: This area brings an understanding of other applicable rules and regulations together to assist in claim investigation and help an organization avoid countless pitfalls;

• Legal Department: An attorney can advise the unit on legal issues and provide advisory opinions, guidance and assist in the development of a legal strategy;

• Medical: Having an on-call nurse or doctor who can assist in complex issues such as utilization review of medication or other procedures will drive down costs.  They can also assist in injury response; and

• Management: It is important to include a representative from senior management. This person can help clarify the mission of an organization and desired results.

Conclusions

Workers’ compensation claims present challenges that call for special measures.  To be successful, proactive employers and insurance carriers can develop special units to tackle these matters head-on.  This includes engagement from a variety of areas within an organization to resolve claims and reduce workers’ compensation program costs.

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/

©2019 Amaxx LLC. All rights reserved under International Copyright Law.

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

Workers’ compensation fraud continues to be a problem.  Members of the claim management team need to be aware of this problem and develop a plan for its prevention.  They also need to create a plan to remedy the situation.  By taking steps to stamp out workers’ compensation fraud, programs will become more efficient and ultimately reduce costs program-wide.

Defining the Issue – What is Workers’ Compensation Fraud?

Malingering or showing signs of pain magnification is not workers’ compensation fraud.  Instead, it is defined by state law, and investigated and prosecuted by a state agency.  Other civil ramifications can also apply.

According to Webster’s Dictionary, “fraud,” occurs “when a person knowingly or intentionally conceals, misrepresents, or makes a false statement to obtain” workers’ compensation benefits or coverage, “or otherwise profit from the deceit.”

Workers’ Compensation fraud is not limited to injured employees.  Employers can commit acts of fraud by:

• Misrepresenting company payroll on underwriting forms;

• Paying an employee cash or not accurately reporting wages;

• Not accurately reporting their payroll staff; and

• Intentionally not reporting proper employee work classifications.

In sum, an employer commits fraud anytime it intentionally undertakes an action to reduce the cost of its workers’ compensation insurance premium.

Common Examples of Workers’ Compensation Fraud by Injured Employee’s

There are numerous examples of workers’ compensation fraud committed by an employee in the context of a claim.  Some of the more common examples include:

• Filing a claim for an injury that never occurred, or occurred outside the workplace;

• Delays in reporting a work injury with no explanation;

• Reporting an injury that occurred during another activity, such and an employee intentionally inflicting an injury and making a claim for benefits;

• Misrepresenting the nature/extent of a work injury to a medical provider; and

• Making a claim related to an injury that occurred following a job termination, layoff, or end of seasonal work.

Danger Ahead – Common Red Flags of Workers’ Compensation Fraud

There are numerous red flags members of the claim management team should look out for when investigating a claim.  It is important to work as a team and share information to help less experienced claim handlers detect it and avoid paying unnecessarily on a claim.

• Employment changes and terminations: Be mindful of claims that arise at the same time an employee changes positions within an employer or is terminated/seasonally laid off.  A complete review of whether the injury/incident was reported prior to termination or whether the employee was near the end of their unemployment benefits prior to reporting a claim is key.

• Beginning of week injuries:  It is often not a coincidence an employee is injured first thing Monday morning after arriving at the workplace.  This should make anyone scrutinize a claim to determine if it in fact occurred over the weekend.

• Unwitnessed incidents: This should be an area of concern when the claim is made by someone who would typically not be working in a particular area or performing a certain activity.  A review of security video should be a part of any investigation to monitor the activities of the employee immediately prior to the incident.

• Experienced claimants: These are individuals with a long and well-documented history of work injuries and other insurance claims.  A review of an insurance bureau index can track claims histories of a person and be a part of an investigation.

Other red flags include employee’s who give differing stories, work other side jobs (often as independent contractors), or may be experiencing financial difficulties.  It is also important to understand what hobbies or recreational activities an injured employee partakes in away from the workplace.  This can include someone playing in a sports league or enjoys “extreme sports.”  Proactive claim teams should have a plan in place to identify potential fraud issues and undertake a more exacting investigation.

Conclusions

Members of the claim management team need to be mindful of workers’ compensation fraud in all claims.  In addressing this issue, there are many red flags a claim handler must be aware of before accepting a claim and paying benefits.  By doing this, one can ensure that all valid claims are paid in a timely and correct manner.  It can also improve program performance and efficiency.

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/

©2019 Amaxx LLC. All rights reserved under International Copyright Law.

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

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/

©2018 Amaxx LLC. All rights reserved under InternationalCopyright Law.

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

Now and then one comes across a claimant who knows the twists and turns of the workers’ compensation system. The claimant could be a dependable and good worker, but the employee is dragging out their workers’ compensation claim.

The insurance industry calls these people “career claimants.” When a background check is done, they have a list of prior claims a mile long. Having many prior claims does not necessarily mean they are bad workers; perhaps they are injury-prone. It is very interesting, however, when claims are filed, they are sneaky enough to do just enough to keep the wheels turning and drag out their workers’ comp claim to remain out of work or on medical restrictions. Odd how that happens…

Adjusters can use their defensive tools to get these claimants off workers comp. Even when adjusters do IMEs, surveillance, and speak with the physicians providing the treatment, nothing seems to get this type of worker back to full duty.

When claimants know too much about how the system works, they drage out their workers’ comp claim by:

1. Having the Physician on their Side 

Physicians usually base opinions on evidence-based medicine. Tricky claimants know what to tell and what not to tell the doctor. They use the Internet as an information source. For example, if someone sustains a back strain, acceptable symptoms are researched to report without over-exaggerating the symptomology to cause the treating physician to see red flags.

Limited range of motion, muscle spasm, and bringing up pain complaints tell a doctor if the person is or is not hurt. The doctor proceeds presuming the patient is reporting honesty and may keep the patient on restrictions, on continuing treatment, and off work. This is where the independent medical examination (IME) comes into play. It is always good to have another opinion just in case the treating doctor is not being proactive in moving the patient along to full duty, especially if the subjective complaints do not match the objective evidence on examination.

2. Rescheduling Doctor and Physical Therapy Appointments

Everyone has a life outside of work. However, constant rescheduling of medical appointments is a red flag for the adjuster. Maybe now and then a physical therapy appointment is missed, especially when working light duty. But, it is important to remember legitimately injured workers want to get treatment, heal, return to full duty, and not drag out their workers’ comp claim.

A typical lumbar strain does not necessarily prevent a person from being active or running errands, but if a trend arises of constant rescheduling — THINK — what else is going on besides the injured worker’s schedule? Surveillance is a handy tool to confirm suspicions. It is especially helpful if the injured worker is caught in a lie. If the worker reports to the adjuster therapy is missed even when off work and surveillance shows the employee doing yard work instead of going to physical therapy, that is evidence to suspend the claim due to non-compliance with the treatment plan provided by the doctor.

Hot Tip: One therapy office has a policy of charging the patient the full amount of the missed appointment unless given 24-hour notice. They present patients with this written policy at the beginning of therapy and make them sign indicating they understand they will be charged and their insurance will not be billed.

3. The Claimant Knows the Lingo

One thing jumping right into the adjuster’s face is a claimant knowledgeable about the injury in medical terms. The average person does not use words like radiculopathy, impingement, and stenosis or know what they mean.

Even more striking is when a worker discusses a settlement or redemption early on in the claim. This behavior should lead the adjuster to believe the worker has been down the workers’ comp claim road before. Most times, when a background check is done, it shows prior litigation experience with prior employers. These are all red flags indicating you want to keep an eye on this claimant as they may be dragging out their workers’ comp claim.

4. The Claimant is Off Work and Cannot be Found

When a claimant has a legitimate injury and is off work for a while, it is a good idea to do surveillance to get additional information. After a few days, if the video only shows the worker poking a head out of the front door to retrieve the mail, it is always a red flag. The person may have a prior claim history, broke restrictions, and the claim was denied or suspended.

Or even worse, when you go to do surveillance, the worker cannot be found anywhere. The worker might be staying at another location or at another property. When you talk to the employee, excuses are made about how pain is so disabling all that can be done is to stay home and rest. However, something is awry if you go to do surveillance and the car is not in the driveway.

5. The Worker Misses a Few Therapy Appointments Every Week

Remember, injured workers with legitimate injuries want treatment so they can heal, return to work, and not drag out their workers’ comp claim.  In a red flag claim when a person goes to some treatment, but not all and not all the time, this means they are doing just enough to keep the claim alive, but missing just enough treatments not to get better.

The unsaid rule in claims is the longer a person is off work, the harder it is to get them back to work. This challenge is where a light-duty work program comes in handy. Light duty forces the worker to go to work. It also forces them to go to treatment, especially if one has to leave work to go to therapy and then return to work to finish the shift.

Doing just enough to keep the adjuster from disputing the claim shows the claimant knows a little bit about how the claims system works. As an adjuster, if a person makes 75 percent of the medical appointments, is that going to stand up in court if you pull the trigger and file a dispute or suspension?

Summary

Just one of these points does not mean your employee is cheating you and trying to drag out their workers’ comp claim. But, some smart claimants know how to work the system. If, as the adjuster, you spot one of these claims, it is your role to stay on top of every aspect of the claim. Make sure if workers miss appointments they have some documentation to support absences. The more pressure you put on them, the better result you will have in defeating unethical claimants at their own game.

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/

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

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

Members of the claims management team are called upon to investigate claims and make determinations of primary liability and the necessity of medical care and treatment.  This requires them to perform tasks on numerous occasions quickly and effectively.  It also includes the ability to be creative while cost-efficient.  Here are some tips to consider in order to succeed at this difficult task.

Obtain the First Report of Injury

The FROI contains important pieces of claims information that can be useful when starting an investigation on a claim.  While the information might not be accurate, it can lead to important information on the background of a claim.  Information to obtain from the FROI include:

• Body parts injured during the incident;

• Names and addresses of medical providers related to the work injury;

• The mechanism of injury;

• Location of the injury; and

• Potential witnesses.

While the FROI is not necessarily accurate, it can be valuable for claim development purposes.  It can also assist when it comes to understanding inconsistencies in the claimant’s recorded statement and future deposition.

Other Accident or Injury Reports

In many instances, there are other accident or injury reports that are generated following a work injury. This can include reports from the owner of the premises at which the injury took place, reports from law enforcement and emergency medical service providers and other interested parties.  Information obtained from these reports can move a claim investigation forward in a cost-efficient manner as they are usually free to obtain.

Accident reports also contain additional information that is helpful to an investigation.  This includes photographs and videos of the incident.  Information received from these reports can be priceless, especially if they contain information that contradicts allegations made by the injured worker.

Recorded Statements of the Employee

Most jurisdictions allow the workers’ compensation insurance carrier to take a recorded statement of the employee following a work injury.  It is important to follow the applicable statutes or rules to preserve evidence for future use.  A well recorded statement should follow a script to ensure all important questions are asked.  A seasoned member of the claim management team will also learn how to probe for information in a friendly and courteous manner.  When taking a recorded statement, listen carefully to what is being said and ask probing questions.

Authorizations for Medical and Other Records

Although workers’ compensation claims investigations are generally excluded from state and federal health care privacy laws, it still remains important to obtain properly executed authorizations when requesting medical, employment and other records.

• Medical: It is important to obtain a complete set of medical records for an injured party.  This should go beyond what is directly related to the work injury.  Obtaining a complete set of medical records can lead to other areas of investigation and allow your independent medical examiner to have a complete and accurate background of a claimant.

• Employment: These records are used for a variety of reasons.  Not only will it serve as a source to calculate the employee’s average weekly wage, but it will also allow one to understand an employee’s transferable job skills better and identify areas of vocational limitation.

• Industrial Commission: Records regarding prior workers’ compensation claims are generally stored at a state’s industrial commission.  These records include not only details of prior workers’ compensation claims, but the names of former employers and medical providers.

Other Sources of Investigation

There are countless other areas to investigate as part of any workers’ compensation claim.  Sources of research and investigation should include:

• Social media: Checking to see public activity a claimant has on social media is a must. Be cautious as ethical and legal issues can arise when claims investigation break laws to trick someone into giving you access to their accounts.

• Central Index Bureau Check: This is a clearinghouse where insurers and self-insured companies file reports of claims. It allows members to later search for information on prior injury claims based on one’s name and Social Security number.  Costs may apply for these searches.

• Surveillance: This is another tool that can be used. However, there can be significant costs associated with the hiring of a private investigator to research background information on a claimant and take undercover video.

Conclusions

The modern workers’ compensation claim handler needs to be creative when it comes to investigating a claim.  Technology has provided them with numerous resources to obtain information quickly, and in a cost-effective manner.  Performing a diligent investigation can reduce program costs and limit claims litigation.

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/

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

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

When fraud is suspected, or the injured employee appears to be malingering, surveillance by private investigators is often utilized to obtain information that can be used to move the workers’ compensation claim to a conclusion.   Surveillance properly conducted and documented can be very beneficial at settlement conferences, mediations, and hearings.

Surveillance is often used to:

• Obtain photos or videos of the injured employee working either at another job or is working around the home performing yard work, home maintenance, car maintenance, etc.
• Show the injured employee is not as disabled as claimed – for example, the injured employee uses a cane at each medical appointment but can go grocery shopping without the cane or other medical equipment.

The workers’ compensation claims adjuster should maintain an up to date knowledge of the status of the claim.  Surveillance is not a substitute for proper claims management.

10 Red Flags Indicating Need For Surveillance in Workers’ Comp

• If the adjuster notes any red flags during the course of the claim, surveillance should be considered.  Red flags indicating surveillance could be beneficial include:
• The injured employee is never at home when the adjuster calls
• The injured employee develops new complaints and symptoms weeks or months after the initial accident
• The length of recovery time is excessive for the nature or the extent of the injury
• There are rumors the employee is working elsewhere
• The employee is unwilling to attempt modified work/light work
• The employee’s spouse/partner is also collecting disability income of some type
• The physical therapy reports or the doctor office visit notes include comments that indicate the employee does not seem to be as injured as the employee claims
• The employee is receiving an excessive amount of narcotics
• If the adjuster has been properly working the claim and is up to date on the medical status of the claim, and knows the claimant is not malingering, surveillance is usually not justifiable if there are no red flags.

Need More than One Piece of Evidence to Help Prove Case

Unfortunately, surveillance often has a low “success ratio.”  This does not mean that surveillance was not justified, only that the surveillance did not occur at the same time the employee performed an activity that demonstrated the injury is not as bad as claimed.

When surveillance is successful, for example, the private investigator gets 2 hours of video of the claimant shoveling deep snow off his sidewalk, driveway and neighbors walkway, it makes it much easier to settle the claimant’s low back injury claim.  However, the adjuster should not act too quickly with the information obtained by surveillance.

When surveillance produces proof that the claimant is not injured as severely as claimed, further surveillance is needed.  One video of the injured employee working or walking without his cane is very much subject to the argument that the claimant “was having a good day,” and the video does not show the claimant spending the next week in bed after shoveling the snow.  To defeat the “one good day” rebuttal of the surveillance video, surveillance video or photos should be obtained on different days.

Share Videos with Defense Counsel

If defense counsel is involved in the claim, the video or photos should be shared with defense counsel.  A decision should be made as to when the surveillance documentation will be used in defense of the claim.  The information obtained through surveillance is normally subject to discovery.  Therefore, the adjuster and defense counsel should collaborate on the most productive time to make the information available to the employee and his/her attorney.

Surveillance companies are also utilized to perform civil and criminal background checks, obtain motor vehicle records, interview neighbors and friends to see if the employee has a history of prior medical issues related to the current injury claim, and obtain information on the employee’s educational and work background.

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/

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

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

Most workers compensation claims are legitimate. Unfortunately, there will be times when an employee will try to take advantage of the workers’ comp system. When an employee has a workers comp claim with the following characteristics, it is time to be extra diligent in your approach to the claim.

1. The Monday Morning Claim

When an employee reports an injury within the first few minutes of being on the job on Monday morning, there is a good chance the accident did not happen within those first few minutes but over the weekend while the employee was doing household chores or participating in a sporting activity or other physical exertion. This is especially true if the employee, who does not normally come in early, gets in and gets hurt before anyone else arrives on the job.

2. The Unwitnessed Accident

A disproportionate share of back injuries, neck injuries, and other musculoskeletal injuries seem to occur when no other employees are in the immediate area. Often these unwitnessed injuries occur to people who have degenerative disc disease, arthritis, or other musculoskeletal issues bothering them before the unwitnessed accident occurs.

If your “injured” employee works typically around other employees, and the employee is in an area where the employee normally does not work, when the unwitnessed accident occurs, an in-depth investigation will be needed.

3. The Late Report of Injury

When an employee is injured on the job, unless there is some really compelling reason to not report the injury, the accident will be reported the same day it occurred or at the latest the following day. When the employee reports an “accident” that occurred last week, last month, or longer, it most likely did not occur at work.

4. I Forgot the Details

When the employee tells the employer that the back injury happened to carry a box of parts, and then tells the emergency room doctor the injury occurred picking up a heavy piece of equipment, and then the lawyer claims the back injury happened while the worker was using a jackhammer, which version of the accident do you believe? If the accident version varies from medical report to medical report, most likely none of the accident versions are correct. The employee who forgets the details of the accident is most likely having workers’ comp take care of the aching back or another body part when the worker should be paying and submitting bills to the worker’s own health insurance.

5. The Unhappy Employee

Workers compensation is often abused by an unhappy employee. Sometimes employees may use a workers’ comp claim to keep from being laid off following a disciplinary action or to maintain a source of income when the union calls a strike, or when the factory is closing, or at the end of seasonal employment. When an employee is disgruntled about some aspect of the job, workers comp is often seen as a paid vacation.

6. The Cheat

While some of the fraudulent workers’ comp claims are to have workers’ comp pay for a real, but not work-related injury, many fraudulent claims are based solely on greed. For example: The employee is offered a temporary “under-the-table job” paying cash. Claiming workers comp indemnity benefits while working under-the-table is a good way of getting additional income while maintaining a job to go back to when the temporary work ends. Other variations of the cheat is the employee who has been working two jobs, but is ready to give the second job up. A workers’ comp claim drawing indemnity benefits from two jobs greater than what is made on only one job provides the excuse needed to make a phony claim.

7. The Migrating Injury

The migrating injury claim is often missed by an employer or adjuster. The employee starts out with a very real, very well-documented injury such as a falling object breaking a foot bone. The employee gets acquainted with the doctor and after several visits advises the doctor there is wrist pain. The doctor starts treating the wrist for carpal tunnel syndrome. When the doctor starts treating a body part that was not injured on the day of the accident, the additional medical treatment needs to be promptly identified and denied.

Any time you feel there is something just not right about an employee’s workers comp claim, your instinct is often correct. Any time a questionable claim is reported, do not just accept it. Report it to the claims office as questionable and explain why you think so. Ask for a complete investigation and involvement of the SIU (Special Investigation Unit) in the claim. Defeating the questionable claim will have a positive impact on your workers’ compensation costs.

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/

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