Workers Comp Zone


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
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Category: Understanding the CA WC system