Surveillance in Workers’ Compensation

By Rosalind Asch-Hobeck

Insurance Carrier Paying You Benefits? They Might Be Watching.

If you're receiving lost wage benefits due to a job-related injury, it's crucial to understand that insurance carriers often employ surveillance as a standard practice. This isn't necessarily a sign of distrust, but rather a tool they use to ensure the legitimacy of claims and manage their financial risk. Don't be surprised if you notice unfamiliar vehicles or individuals in your vicinity.

Is My Insurance Company Having Me Followed? Understanding Surveillance in Workers' Compensation.

Insurers frequently resort to surveillance when there's a discrepancy between your reported limitations and their assessments. This is particularly true when:

• Severity of Injuries is Questioned: If the insurer believes your injuries are less severe than claimed, they might use surveillance to gather evidence.

• Conflicting Medical Opinions: Discrepancies between your doctor's restrictions and the findings of the carrier's Independent Medical Examiner (IME) can trigger surveillance.

• Suspected Fraud: Insurers are vigilant about potential fraud, especially in cases where they suspect exaggeration of injuries for financial gain.

The Perils of Exaggeration: WCL Section 114-a and Its Consequences.

New York Workers' Compensation Law (WCL) Section 114-a addresses fraudulent claims. If a judge determines that you intentionally misrepresented your injuries to receive benefits, you could face severe penalties, including:

• Loss of indemnity payments (lost wage benefits).

• Potential legal repercussions.

• While medical treatment should continue under NYS medical treatment guidelines, your financial support is at great risk.

• While WCL Section 21 grants you a presumption that your case is work-related, the extent of your injuries can still be in question.  The insurance carrier may utilize surveillance to monitor the extent of your physical capabilities and compare your activities to those of the various doctors to whom you have reported your limitations.

Example Scenario:

Imagine you tell your physician you can only walk short distances and lift minimal weight. However, surveillance footage shows you engaging in strenuous activities like jogging or heavy lifting. This discrepancy could lead the insurer to accuse you of fraud, potentially jeopardizing your benefits.

Protecting Yourself: Truthfulness and Documentation.

The best defense against surveillance-related issues is transparency. Always be truthful with your doctor about your limitations. If your abilities change or you exceed your reported limitations on a particular day, document it with your doctor immediately. This creates a clear record that can counter any potentially damaging surveillance evidence.

Does the Carrier Have the Right to Use Surveillance? Understanding Legal Boundaries.

Yes, insurance companies have the legal right to conduct surveillance within reasonable boundaries. This may include:

• Following you in public places.

• Observing your activities while driving or shopping.

• Taking video or photographic evidence.

However, they cannot engage in illegal activities like trespassing or invasion of privacy. Trying to evade surveillance can raise suspicion and damage your credibility.

When in Doubt, Consult Your Attorney.

If you have any concerns about surveillance or what constitutes fraud, seek legal counsel immediately. An experienced workers' compensation attorney can:

• Explain your rights and obligations.

• Advise you on how to handle surveillance.

• Represent your interests in any legal proceedings.

• Help you understand the nuances of WCL Section 114-a.

Additional Considerations:

• Social Media: Be mindful of your social media activity. Insurers may monitor your online presence for evidence that contradicts your claims.

• Consistency: Maintain consistency in your statements and actions. Any inconsistencies can be used against you.

• Communication: Keep open communication with your legal counsel.

If you aren’t sure, ask your lawyer.

Ultimately, if your reported limitations are accurate, surveillance shouldn’t harm your case. If you’re unsure about what constitutes fraud, consult your attorney.

If you found this information helpful, you might also be interested in reading Why Would My New York Workers’ Compensation Claim Be Denied?