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.
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.
This article was first published by WorkersCompensation.com.