July 26, 2011
A Word about Surveillance
No one likes the idea that someone is watching them. But, when you get hurt at work, your employer (and their Workers' Compensation insurance carrier) have the right to make sure that you are acting in a manner consistent with your disability.
This means that they can hire a private investigator to follow you, as well as take pictures and/or video of you as you go about your daily activities. Did you tell your doctor on Monday that you can't lift anything over 5 pounds? If so, you don't want to be in a position where you have to explain to a Judge, why on Tuesday, you were loading 50 pound bags of mulch into your car. The Judge is probably going to assume that you were not being honest when you spoke to your doctor, and that you are able to lift much more than 5 pounds. Taking this one step further, if the Judge is also being asked to decide if you have fully recovered from your work injury, they probably will do just that based on the opinion of your employer's medical expert (the IME doctor).
What does this mean to the injured employee? Use common sense. If you are having a good day, resist the urge to go out and do those chores that have been piling up. Don't overdo it. Not just because you are worried about surveillance, but because you need to give yourself a chance to recover completely from your work injury. As you get better, tell your doctor and let them decrease your restrictions. This will allow you to do more as you continue to improve. It also allows you to explain to the Judge that, what you are doing in the surveillance video is entirely consistent with your restrictions.
For example, I had a defense attorney hand me video surveillance of my client digging a hole with a pick-axe. My client had a bad back and should never be swinging a pick-axe over his head. Lucky for my client, I had their IME doctor confirm that my client was not violating his doctor's restrictions. You see, the video showed my client on his knees, with the pick-axe in his lap, dropping the point of the pick-axe onto the ground to break up the dried out dirt in his garden. My client had just returned from his father's funeral and was trying to plant flowers from his father's garden. Clearly, opposing counsel should have watched the video and not relied on the investigator's report!
Just so you know, the majority of surveillance does not show anything significant. It will show you getting in and out of your car, driving your car, walking into a (IME) doctor's office, or carrying groceries to your car. Most people who have work injuries do not look like they are disabled if you were to pass them in the street. A person with a bad back can walk. If you have carpal tunnel syndrome, you can drive a car. That being said, surveillance is an opportunity for the adjuster to confirm that you are still injured. Think of it this way, use your common sense, and don't lose any sleep over this issue.
