Winter Workers Comp Surveillance Tips

 

Now that winter has arrived with a bang, it is always a ripe time for surveillance on those questionable claims.  The hustle and bustle of the Holiday season is over, and people settle in to their normal winter routines, waiting out the cold weather for the arrival of spring.
 
For those problematic claims out there, this time of year is always a busy one for surveillance companies.  Adjusters cannot wait to try and get some film of their injured claimant potentially violating their medical restrictions by shoveling out their driveways or partaking in a winter recreational sport.
 
Here are some tips to keep in mind for a successful hunt of trying to get that elusive film that can direct a claim from compensable to suspended:
 
 
  1. Strike Not Only After the Big Storm, but During It
 
If you are like me and do not own a snowblower, the best way to make shoveling your driveway easier is to do it a few times while the storm is going on.  This makes it a bit easier to heave all the snow off of your driveway.  True, the snow you are pushing may not weigh 500lb, but that is the point. Anyone with a lingering back injury is going to have a hard time pushing a shovel, and I think any doctor will lighten the medical restrictions if they see their patient spending a lot of time outdoors with a shovel. When caught, most claimants will try to say they were only pushing the snow, and not lifting the shovel.  However, any activity is showing that they are active, and it can be a way to get that person back to light duty work if they are currently on a no-work status.
 
 
  1. Use Snow Blowing to Your Advantage
 
If your claimant does indeed have a snowblower, this can mean that they are not actually lifting anything.  But they are on their feet, for long periods of time, pushing and pulling the blower around and being active in general.  This may not mean that they are 100%, but they are certainly capable of doing light duty or sedentary work.  Even if they claim that the snow blower is self-propelled, the claimant is still walking behind it, bending down, and doing this for a period of time. I would find it hard to believe that any doctor would keep this person from doing sedentary work if confronted with the video evidence. Use your tape to get them back to work, and doing something beneficial for your workplace.
 
 
  1. Watch For Potential Aggravation of Injury
 
Snow and ice are slick, and people slip and slide while shoveling and snow blowing.  They are also bent over while using the snowblower which could lead to an aggravation of your current back injury claim.  I am not injured, but I am sore after shoveling.  If I were to already have had a lingering back injury, this is only going to make it worse.  The same could be said if you are watching the video and your claimant slips and tweaks their back, or even worse they fall hard, probably making their current injury worse.  The best way to handle this is to wait to show the doctor the tape until after their next appointment.  In the medical notes, the claimant may show worsening signs of injury, and they probably will not tell the doctor that their symptoms worsened due to falling on their rear end while shoveling.  At this time you have good evidence to show that their injury wasmade worse by slipping and/or falling down.  Make sure you have the doctor be objective.  By showing the doctor the film, you have concrete evidence when paired with the worsened medical report that their injury is now exacerbated by their outside activity. This should allow you to be able to be aggressive in trying to end your comp claim and move it to a personal medical condition.
 
 
  1. Know if they Have any Outdoor Hobbies.
 
Since you know these people for a period of months or years, you may already know that they love to ice fish, or to snowmobile.  Snowmobiling is very arduous, since riding on the machine can lead to jarring of the back, resulting in a worsening of the injury.  Even if they do not claim to be medically worsened, if you can show them active on a snowmobile, then it would seem that they are healthy enough to return to work. The best evidence you could get is if the snowmobile gets stuck and they have to get off and lift the back of the machine to get it working again.  These machines weigh hundreds of pounds, and if you can do that, you should be good enough to be returning to work.
 
Ice fishing is not as arduous, in fact it is pretty lazy, but it can still show a person hauling their gear out to their fishing shack and sitting for long periods of time.  You want to show the doctor that this person is more active than they are leading on.  Once you can show that, you have some great evidence to show that this person is healthy and ready for a return to work in some capacity.
 
 
  1. If You Strike Out, Keep Trying
 
Getting some great surveillance film is luck of the draw.  Sometimes there will be times that you send your vendor out and they return with nothing.  That is OK, you won’t strike gold every time.  But be persistent. Watch the weather reports, be aware of local fishing and skiing competitions, and send your vendor out again.  If indeed you cannot gather any evidence then that is not necessarily a bad thing. This means your claimant is avoiding any activity that will make their pain worse or aggravate their injury.  My friend calls surveillance “the art of verification.”
 
 
Summary
 
There are a lot of people out there that love the snow and the winter weather.  I know people that have fishing shacks that are like a mini house, complete with TV and propane heaters.  Some people snowmobile for miles in the bitter cold, and they actually enjoy doing it.  This doesn’t mean that everyone out there is up to something bad, but it is a possibility.  So take my pal’s advice, and verify that your claimant is doing exactly what they are supposed to be doing–which is laying low, resting, and giving their injury time to heal before returning to work. 
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com
 
©2012 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

Know What to Look for in Surveillance Video Footage

Many adjusters will use surveillance on the cases to get an actual glimpse of what the claimant is up to on a day-to-day basis. Sometimes this can be helpful to the defense of the claim and other times it can yield no real pertinent results towards the actions on a case. 

But you must know what to look for, and how to use these results to your advantage, to assist in the defense of a claim. [WCx]

 
 
Look for consistency
One of the biggest things an adjuster will look for is consistent objective evidence of a disability. This can be in the way a person is walking, using a cane, or other assistive device, or are actually as disabled as claimed to the treating physician. It is almost a guarantee some surveillance will be initiated if a claimant is telling the adjuster he/she is stuck on the couch unable to move due to the injury, and it is more than a few weeks post-injury.
 
 
Keys to be looking for are in the overall way a person is moving. Just having some actual surveillance footage does not mean it works to the adjuster’s advantage. In fact, it can cement the fact that the person actually is in pain and limited in the overall daily activities which is good for the adjuster to know also. But, if there are some inconsistencies, it will contribute to the overall defense of a claim.
 
 
For example, a worker has a knee injury. Surveillance shows the employee walking normally without a limp. Then at the doctor’s or IME appointment, suddenly a noticeable limp appears. When brought to the claimant’s attention the claim of “having a good day that day” is made. Therefore, it is important to have multiple days of surveillance. If it can be shown that this person does not appear disabled or hindered in any way, except for when around a medical facility, then there may be a decent defense. Consistency is key. If holes are poked in this claimant’s statements of being “constantly disabled” and show with surveillance footage this is not so and the claimant is not being 100% truthful, the defense is greatly helped.

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Are canes and crutches being used? Are they being used correctly?
Sticking with the leg injury theme, if a cane or crutches are prescribed, it is always good to see if the person is actually using them, and using them correctly. There are countless cases where a cane is prescribed and, if the person is actually using it, it is used incorrectly. Sometimes the cane is carried when walking. If an attempt is made to use the cane, it is used incorrectly meaning not in a way helpful to the injury. Or even better, after leaving an IME appointment, the cane is tossed into back of the car and when surveillance people tail the worker back home, the cane is not used at any other time. Again, this is helpful to the defense.

Note: Ask the IME doctor before the appointment to examine the cane or crutches for wear and tear. If the person is indeed using it all the time, the bottoms will be worn, and the handle may have some evidence of wear. If the medical device appears new and unused, and the worker is saying it is being constantly used, then there is some good ammunition to use in the defense, or at least use this to base some additional investigation.



Is the claimant breaking the medical restrictions on a regular basis?

Another great piece of evidence is getting footage of the injured party violating prescribed medical restrictions. This can come about in a variety of ways, from lifting and carrying heavier weights than allowed, to walking and running more than recommended. There could be evidence of other prescribed behavior such as golfing or hunting. An agent once reported these scenarios:
 
 
A worker had a knee surgery, and mentioned he was an avid outdoorsman. When hunting season came around the agent sent out a surveillance team and sure enough, he was deer hunting a few weeks after his latest surgery. The treating doctor told him not to be on his feet for longer than needed, and certainly he was not to be climbing and walking over wilderness terrain.
 
 
In another case a person had a shoulder surgery and a few weeks after surgery was caught chopping wood with an axe all day! When the footage was sent to his doctor for comment, the doctor could not believe what he was seeing. Despite the fact that some people will say that these incidents are not prima facie evidence of fraud, they may be a factor in deciding whether to obtain additional video surveillance and continue the investigation – I would. Actually, I have, and was pleasantly surprised when my claimant gave me a real surprise — enough evidence to settle the claim for a fraction of the $100,000 demand, and a resignation. I might now have shown fraud because I didn't have video of the last two years showing he was not injured during that previous time, but I had enough so he did not want to pursue the claim further.
 
 
Be aware sometimes people say one thing about being disabled and being “bummed out” about not being able to return to work, when they are actually doing the opposite. When surveillance is done, real evidence is discovered of the claimant milking the claim for all it is worth.  
 
 
Again try to show that these violations are happening on a regular basis, not only one time. Just because there is footage of the claimant walking to the mailbox when he reports being bedridden due to pain, does not mean there is a slam-dunk defense that warrants a denial of ongoing benefits. There is a need to establish the fact that this person is committing these violations on a regular basis, if not every day. Be a supporter of getting regular surveillance on higher exposure cases, especially those that are post-surgical. This is especially true when there are other risk drivers supporting that the person is actually benefiting by being out of work. Some examples of these risk drivers include having newborn or infant children to save on daycare costs; subjective evidence of disability without the objective medical evidence support; and also use surveillance with claimants who have a checkered past of having a lot of workers comp and auto claims, with several carriers and several employers throughout the years. [WCx]
 
 
Summary
Surveillance can be a very helpful asset to the defense of a workers compensation claim. But you have to look for key pieces of evidence and these pieces have to be shown to be occurring on a regular basis. Most Judges will say that if the claimant is proved a liar when it comes to the activity level, and you can poke holes in their claims to further disability, then there should be a favorable decision for denial or defense of a workers comp claim. This may not be the case all the time, but if  some holes can be poked in the armor of the claimant, then this is closer to the right path of discovering the truth about if this person is as disabled as is claimed.  As one attorney told me, "Get as many Easter Eggs in your basket as possible!"
 
 

 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@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 or agent about workers comp issues.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

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