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  1. #11
    Join Date
    Feb 2007
    Location
    florida
    Posts
    625

    Default Re: Workers Compensation Surveillance

    Surveillance does happen in wc claims. That is a fact. It is not as routinely used as many think but it does occur. It is all legal as well as long as the surveillance company does not violate any laws. As for shooting them or kicking their butts that would not be recommended as it could lead to legal issues from your arrest and civil lawsuits.

    This is further evidence surveillance is done and used by carriers.

    Use Of Surveillance Causes Reversal Of Award

    In a case from New York, which has a similar anti-fraud
    statute to that of New Jersey, the claimant, Wesley
    Church, alleged that he injured his back in April 2003
    while lifting boxes in a warehouse. He underwent
    substantial back surgery in September 2003. He
    received wage replacement benefits in 2003. In
    December 2005, the compensation carrier sought to
    suspend payments based on surveillance, IMEs, and the
    allegation that petitioner had voluntarily removed himself
    from the labor market.
    The Workers’ Compensation Law Judge found
    claimant to be permanently partially disabled. The carrier
    appealed and contended that the claimant “knowingly
    made false statements and representations as to a
    material fact for the purpose of influencing the
    determination of workers’ compensation benefits in
    violation of Section 114-a.” The Workers’ Compensation
    Board rescinded the benefits awarded to the claimant for
    the period from April 9, 2005 to May 18, 2006 and
    disqualified him from obtaining future benefits.
    Claimant appealed the decision of the Workers’
    Compensation Board to the State of New York, Supreme
    Court, Appellate Division. The court noted that claimant
    testified in a hearing before the Workers’ Compensation
    Law Judge that he had so much pain in his leg that he
    walked with a limp most of the time and that his activities
    were extremely limited. He said that he could only lift a
    little and that his pain was aggravated by sitting, lifting
    and bending.
    The IME for the carrier revealed that the claimant
    appeared to be magnifying his symptoms, particularly
    with respect to the pronounced limp. The doctor noted
    that during the examination the claimant walked “with a
    severe antalgic gait and a limp of his right leg.” However,
    the doctor observed the claimant leaving his office and
    walking steadily with only a trace of a limp and a much
    improved gait.
    Surveillance on the claimant showed him bending and
    picking up and swinging his grandchildren and walking
    with only a very slight limp. The court held that
    petitioner’s credibility was a matter to be decided by the
    Workers’ Compensation Board. It, therefore, left the
    decision of the Board intact and approved the rescission
    of benefits for the time periods noted above. It found
    that the claimant was in violation of Workers’
    Compensation Law Section 114-a. With respect to
    sanctions, however, the court found that the carrier did
    not prove that there was a direct link between false
    statements by the claimant and the receipt of workers’ compensation benefits and, therefore, no sanctions were approved.
    The case is instructive in several respects since the language of the New Jersey Fraud Statute, N.J.S.A. 34:15-57.4, is almost identical to that of the New York Statute. In addition, the case shows how surveillance can be used to lower the value of a permanency award or eliminate it entirely where a claimant has grossly exaggerated his or her complaints in testimony or in medical examinations. This case can be found at Church v. Arrow Electric, 3rd App. Div., New York Supreme Court, No. 503836, January 7, 2010.

  2. #12
    Join Date
    Jul 2008
    Location
    California
    Posts
    1,898

    Default Re: Workers Compensation Surveillance

    Quote Quoting kelly38 View Post
    [url]

    Below is an article that I have posted before, from Applicant's Attorney Julious Young. This may be the direction we need to go in to stop this unwarrented harrassment.

    This is an interesting article writen by a California applicant attorney about private investigators investigations, and questions if some of these investigations are legal?HOLD THAT CAMERA?

    Sunday, January 25, 2009, 08:24 PM - Understanding the CA WC system
    The applicants attorneys conference in San Diego drew to a close today.

    In some coming posts I'll be commenting on some of the nuggets from the CAAA confab.

    Hold that video?

    That's the upshot of today's interesting presentation by Los Angeles attorney Lawrence I. Stern of Mallery and Stern.

    Defendants in California workers' comp frequently secure sub rosa films and videos of injured workers. Like most attorneys, several times each week I'll find a DVD or VHS tape of clients in my mailbox.

    The client may have been filmed from a van parked down the street from his house. Or the client may have been followed to the mall or the park or the beach. One client was followed from the doctor's office in the Bay Area to a casino in the foothills of the Sierra.

    As cameras and microphones and night vision equipment have gotten smaller, video surveillance techniques have become much more sophisticated. And often much more invasive. Stuff the CIA had several decades ago may now be a tool in the hands of your local investigator.

    While the videos can sometimes significantly undermine the worker's case, the videos are many times not really that significant.

    But are they legal? Can the carrier take film pretty much whenever and wherever they choose to? Are there legal standards that must be met before video surveillance can be initiated? Or is the carrier able to commission video whenever and under whatever conditions it chooses, from public settings to invasive videos taken inside structures, from malls, stores and stadiums to dwellings?

    It should be noted that the surveillance process sometimes causes embarassment and disruption in the worker's neighborhood. Neighbors
    sometimes become involved since they observe unknown vehicles loitering around the neighborhood or following the worker. Neighbors may fear for the worker's safety or their own safety.

    The worker's reputation in the community can be damaged in the process, as the worker "loses face". The worker and his friends and family may be put at risk where the worker is followed on the highway.

    If shown to the treating physician, even benign videos may cause some physicians to become uncomfortable, not wanting to "get involved" if they feel the worker is "under the microscope".

    Thus, surveillance video can have some significant collateral consequences.

    In essence, can the carrier commission a fishing expedition of surveillance in hopes of catching the worker in a lie about activity? Does an injured worker lose all expectation of privacy?

    Probably not.


    After all, the cases of Allison v. WCAB (1999) 64 CCC 624 and Pettus v. Cole (1996) 61 CCC 975 both contain extensive reference to privacy rights. Privacy is central to the California Confidentiality of medical Information Act (Civil Code 56 et seq.) and is part of the California Constitution, Article I, Section I.

    Stern reminded the audience (which contained a large number of defense attorneys) that there is a foundational requirement for films and videos.

    Civil Code 1708.8(g) requires that there be a "showing" that is supported by "articulable suspicion of suspected illegal activity, violation of an administrative rule, fraudulent insurance claim, or other suspected fraudulent conduct or activity". Business and Professions Code 6521 requires that investigators be licensed
    .

    Civil Code 1708(g) would appear to require that the decision to take film or video be based on an articulable suspicion, not simply on a generalized hope that something will turn up in the surveillance.

    Such an articulable suspicion might be generated by a tip from a witness, co-worker or informant or at the suggestion of a treating doctor or QME. Other investigatory techniques such as an internet search or credit check may reveal evidence that the claimant may be working while claiming disability.

    In those instances, a Civil Code 1708(g) showing of "articulable suspicion" would appear to be easy to establish.

    But not so in many other instances where films or videos are obtained.

    One wonders whether surveillance is actually generated in many cases at the whim of a claims adjuster or attorney, to "see if we can get something on this guy". Perhaps the worker or worker's attorney has irked the defendant. The defendant may think the "injury has gone on too long". The employer may be suspicious of the worker's doctor who is certifying the disability and treatment. The carrier or defense firm may have policy of doing surveillance on most cases from time to time in order to "turn up an occasional fraud".

    In none of those instances does it appear that an "articulable suspicion" was established before the surveillance. Without such a showing, the films/videos may be inadmissible.

    In the future I expect that we will see more challenges to the admissibility of film and video.

    We'll see applicant attorneys demanding that the "articulable suspicion" be revealed before the applicant attorney will stipulate that the video/film be shown to the QME or AME.

    We'll also see efforts to impose civil Superior Court liability on carriers and law firms that initiate video where there was no basis for articulable suspicion.

    Not every bogus video will generate a viable claim for civil damages. But in the future I predict we will see some significant civil liablility in egregious cases where there was no "articulable suspicion" and where the very act of doing surveillance essentially became a harassment tool against the worker. In such cases it will be noted that the privacy violation was compounded by the carrier sending the films/videos to the treating doctor. If shown in the video, the family and friends of the worker may attempt to state a claim as well.

    Carriers, beware. Sometimes it may be better to hold that camera.
    Julius Young

    As I posted before, in California if the claims adjuster decides to hire PI's on a fishing expedition....they may catch more than expected, a civil suit.


    Civil Code 1708.8(g) requires that there be a "showing" that is supported by "articulable suspicion of suspected illegal activity, violation of an administrative rule, fraudulent insurance claim, or other suspected fraudulent conduct or activity". Business and Professions Code 6521 requires that investigators be licensed[/B].

    Civil Code 1708(g) would appear to require that the decision to take film or video be based on an articulable suspicion, not simply on a generalized hope that something will turn up in the surveillance.

  3. #13
    Join Date
    Feb 2008
    Posts
    156

    Default Re: Workers Compensation Surveillance

    If you have a ligitament claim and are truly injured then you have nothing to worry about. Stay within your restrictions and i could care less what they take a picture of.

    The poster was referring to pictures. A picture tells nothing. It doesnt speak. I know there are some fraudulent claims out there and they will be caught. I was referring also to the stories of a PI following people or siting outside there home. Whats legal about that? How do i know there not a child molester?

    ADJ, like i said i was referring to the part about pictures. I was also speaking of following and sitting outside someones house. I ask you again Wheres the leagal part im missing? I f someone follows you or sits outside your house call the police. Like i stated before i dont care if its legal or not, THEY COME ON MY PROPERTY THERE FAIR GAME!!!!!!

    Adj, do you thinks its leagal to follow or sit outside someones home or to come on there property? Thats what people are saying there concerned about. Im saying they have no right to and there is no law that says they do.

    Stalking
    N.C. Gen. Stat. § 14-277.3. Stalking. 1991. Amended 2003.


    (a) Offense. -- A person commits the offense of stalking if the person willfully on more than one occasion follows or is in the presence of, or otherwise harasses, another person without legal purpose and with the intent to do any of the following:

    (1) Place that person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates.

    (2) Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment, and that in fact causes that person substantial emotional distress.

    (b) Classification. -- A violation of this section is a Class A1 misdemeanor. A person convicted of a Class A1 misdemeanor under this section, who is sentenced to a community punishment, shall be placed on supervised probation in addition to any other punishment imposed by the court. A person who commits the offense of stalking when there is a court order in effect prohibiting similar behavior by that person is guilty of a Class H felony. A person who commits the offense of stalking after having been previously convicted of a stalking offense is guilty of a Class F felony.

    (c) Definition. -- For the purposes of this section, the term "harasses" or "harassment" means knowing conduct, including written or printed communication or transmission, telephone or cellular or other wireless telephonic communication, facsimile transmission, pager messages or transmissions, answering machine or voice mail messages or transmissions, and electronic mail messages or other computerized or electronic transmissions, directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose

  4. #14
    Join Date
    Jul 2008
    Location
    California
    Posts
    1,898

    Default Re: Workers Compensation Surveillance

    Quote Quoting babyhub View Post
    If you have a ligitament claim and are truly injured then you have nothing to worry about. Stay within your restrictions and i could care less what they take a picture of.
    I agree, stay within your retrictions and you have nothing to worry about.

    Be carful when describing your limitations to doctors, or in a deposition. If you use the words can't, don't, never, wont, when you are describing your limitations... this is where PI can use pictures to discredit you. If you say you can't bend, (but you really mean it hurts to bend, and you do it as little as possible...they will take attempt to get a picture of you bending). If you say you can't do something that means to the insurance company 100% of the time. They take the words out of context.

    The same thing with sitting for example. If you say I can't sit for more than 10 minutes at a time due to pain, they will attempt to film you driving somewhere over 10 minutes. What you most likly meant was... it is difficult for you to sit over 10 minutes at a time, and you try to limit this as much as you can, and when you do sit for more than 10 minutes you are in pain for hours afterward.


    The poster was referring to pictures. A picture tells nothing. It doesnt speak. I know there are some fraudulent claims out there and they will be caught. I was referring also to the stories of a PI following people or siting outside there home. Whats legal about that? How do i know there not a child molester?
    .
    There are very few instances of work comp claimant fraud. In my state it is less than 1%.

    I agree with babyhub, call the police when those guys are sitting in front of your house. They may not be a PI. There are child molesters and other criminals, that case houses.

    I still believe in some instances, the PI's are used as intimidation tactics. I think the insurance companies waste their money on them. I would like to see a one year study on the return of investment (ROI) with the use of PI's with an insurance company.

  5. #15
    Join Date
    Feb 2008
    Posts
    156

    Default Re: Workers Compensation Surveillance

    THIS IS FOR THE POSTER THAT SAID THE PI CONTACTED HIM AT HIS HOME AND HE HAD AN ATTORNEY. IF THIS IS TRUE THEN REPORT THE DEFENSE ATTORNEY AND THE PI. ITS NOT LEGAL.

    Why might an attorney be accountable for his/her PI contacting the client of an opposing attorney? The legal idea behind this is simply that the boss is ultimately responsible for the employee’s actions. In states where PIs are licensed, it may indeed be the case that both the attorney and the PI would be punished for intruding on another attorney-client relationship (one needs to check if this is the case with that state’s PI licensing statutes or that state’s attorney’s code of professional responsibility).

  6. #16
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,017

    Default Re: Workers Compensation Surveillance

    THIS IS FOR THE POSTER THAT SAID THE PI CONTACTED HIM AT HIS HOME AND HE HAD AN ATTORNEY. IF THIS IS TRUE THEN REPORT THE DEFENSE ATTORNEY AND THE PI. ITS NOT LEGAL.
    Can you post a link to the authority you are relying upon for the statement ''It's not legal"...please.

  7. #17
    Join Date
    Feb 2008
    Posts
    156

    Default Re: Workers Compensation Surveillance

    I have family that work for a PI firm. He most of his investigations are related to divorces. lol haha. He has taken alot of pictures. He has never dealt with a WC investigation. He told me if they did, WC would give a retainer and do a 2 or 3 day survellence or about 24 hours. Not necessarly in continously. He also said he did a case of insurance fraud. A guy claimed his rims and tires were stollen. The insurance company was not local. He said he went to the guy's house and the rims were sitting on his porch. lol thats a dumb crook. He said if he did do a WC survellence he would film for about 8 hrs and have no time lapse. In otherwords, he would have to show the whole tape. He would never approach anyone. He want risk getting sued or get a harrasment charge. He also said the NCM was the PI. lollolol. I guess he has a point.

  8. #18
    Join Date
    Feb 2007
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    Calif
    Posts
    18,017

    Default Re: Workers Compensation Surveillance

    That's great story... however, it doesn't provide the answer to my question.
    What are you relying on to support your opinion of what you said....''It's not legal"...

  9. #19
    Join Date
    Feb 2007
    Location
    florida
    Posts
    625

    Default Re: Workers Compensation Surveillance

    The phrase that comes to mind is "a picture is worth a thousand words". I agree that if you see someone sitting on the street across the street call the cops. Do not take the law into your own hand. If they come on your property then all bets are off.

  10. #20
    Join Date
    Feb 2008
    Posts
    156

    Default Re: Workers Compensation Surveillance

    Chapter 50C.

    Civil No‑Contact Orders.

    § 50C‑1. Definitions.

    The following definitions apply in this Chapter:

    (1) Abuse. – To physically or mentally harm, harass, intimidate, or interfere with the personal liberty of another.

    (2) Civil no‑contact order. – An order granted under this Chapter, which includes a remedy authorized by G.S. 50C‑5.

    (3) Nonconsensual. – A lack of freely given consent.

    (4) Sexual conduct. – Any intentional or knowing touching, fondling, or sexual penetration by a person, either directly or through clothing, of the sexual organs, anus, or breast of another, whether an adult or a minor, for the purpose of sexual gratification or arousal. For purposes of this subdivision, the term shall include the transfer or transmission of semen.

    (5) Repealed by Session Laws 2004‑199, s. 50, effective August 17, 2004.

    (6) Stalking. – On more than one occasion, following or otherwise harassing, as defined in G.S. 14‑277.3A(b)(2), another person without legal purpose with the intent to do any of the following:

    a. Place the person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates.

    b. Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress.

    (7) Unlawful conduct. – The commission of one or more of the following acts by a person 16 years of age or older upon a person, but does not include acts of self‑defense or defense of others:

    a. Nonconsensual sexual conduct, including single incidences of nonconsensual sexual conduct.

    b. Stalking.

    (8) Victim. – A person against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B‑1(b). (2004‑194, s. 1; 2004‑199, s. 50; 2007‑199, s. 1; 2009‑58, s. 6.)

    PLEASE READ 6, 6A, 6B

    ADJ, I think were on the same page. Its just some of the stories being told really get to me. People have no right to follow you around or come on your property,gps,etc..... Sounds to me like some of this is not a PI. People need to be careful. Someone in your neighborhood, we need to get involved and get them out of our neighborhoods. Some are up to no good. Peple think there PI's and some or most are not,there criminals.

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