As a workers' compensation insurance attorney, I end up talking to a lot of workers' compensation claimants about their cases. When they are unrepresented, the most common complaint that they make about their case is that their insurance adjuster will never respond to their calls. Another common complaint is a suspicion that the workers' compensation insurance adjuster has been spying on them.
We will set aside the problem of insurance companies who don't have time to return calls, but have plenty of time to do other things to undermine your claim for another occasion. For now, I'd like to focus on the often extreme methods that carriers will use to set up a situation where the claimant is supposedly "caught" doing something that they are not supposed to do because of their injury.
Insurance carriers don't spy on a claimant in every workers' comp case. In fact, I would say that surveillance only plays a significant role in about 5-10% of the cases that are brought to my office. Usually, however, there is a fairly clear situation where the insurer decides to undertake surveillance: First, the claimant has usually not reached maximum medical improvement. Second, the claimant is receiving ongoing temporary (disability-based) benefits because their doctor has taken them off work. Third, those disability benefits have been paid for a relatively long period of time (say, more than three months). These are red-flag type situations to insurance companies, because they represent a substantial drain on their claim reserves, which takes a bite out of their profitability. They want to get the money out of the claimant's pocket, where it is often paying for food and other necessities for the injured worker and their family, and back into the insurance company's bank account. However, as long as the claimant's doctor has placed them on restrictions, the carrier's options are limited.
The idea behind the surveillance is to come up with either a photo or a video of the claimant doing something that is outside of the ongoing restrictions that are prescribed by their doctor. This supposedly proves that the worker is capable of returning to work, and therefore not entitled to the temporary (disability-based) benefits that the insurance company is paying.
There are two major forms of surveillance. The first is social media surveillance. This is where someone at the insurance company (usually, the adjuster assigned to the claim) browses through the claimant's social media accounts of the claimant in an effort to find entries that somehow suggest the claimant is doing something outside of their restrictions. Often, these are Facebook posts where the claimant shares a workout photo or a photo of themselves that appears to show them engaging in a recreational activity, such as hunting, fishing, or swimming. The photos, however, almost never tell the whole story. Some claimants will go to the lake with their family, for example, and do little more than sit in a chair watching their family fish and frolic in the water. But the photo can make it look like they were participating as well.
The second type of surveillance is as old as the private investigation business: the carrier hires a PI to follow the claimant and photograph or video the claimant doing anything suspicious. Over the years, I have waded through hours and hours of photos and videos showing injured workers getting in and out of cars, walking a short distance without their cane, or pushing a shopping cart through the grocery store. The photos and video are supposed to demonstrate the claimant can get out and do things, but it is again often misleading because it never shows the whole picture. For example, when you see that video of the claimant lifting a two year-old into a car seat, you don't understand that it was only done once or twice in the last three months, and always because no one else was available to transport the child to school or a doctor's appointment. They also don't show the claimant lying in bed in pain the next day after over-exerting themselves.
As a claimant, how can you protect yourself from the insurance company's efforts to obtain evidence that may be misleading? Here are a few tips:
Stop posting about your activities on social media while your claim is pending or, at least, make sure all of your social media accounts are private, and that you can identify all of your followers.
If you have been receiving temporary income benefits for more than 2-3 months, be conscious of your conduct any time you are in public. You should always follow your doctor's restrictions, but it is particularly important for you to do so in this situation.
Be on the lookout for suspicious vehicles parked in your neighborhood or around your house. Most of the time, if you are being followed by a PI, they will try to pick up your "trail" by watching for you to leave your house.
Be on high alert when going out for doctor's appointments or physical therapy visits. Since the private investigator knows you will be going out and where you will be going on these occasions, they are often considered to be prime opportunities to gather surveillance.
The good news is that, even if the insurance company successfully gathers some photos or video of you, it doesn't tell the whole story. In the end, you will get a chance to go in front of a judge to tell the full story about what happened before (and after) the event shown in the surveillance. However, by following these tips, you'll make it more likely that the judge will ultimately rule in your favor.