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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 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 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.
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 proscribed 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 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.
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