If there is one aspect in defending Workers’ Compensation claims that many Employer/Carriers misinterpret is video surveillance. It is a powerful tool in litigation, but should be applied delicately, lest it be barred from trial by a judgefor discovery violations. Let me cite as an example one of my cases.
Currently, I am working on the defense of a claim where we procured very effective surveillance. Prior to that, Claimant alleged extreme pain in both arms and even underwent the implantation of a dorsal column stimulator in his neck (a severe procedure to say the least). He testified at deposition that his pain in his arms is so great he cannot even shake hands or do simple household chores like yard work.
Of course, video surveillance revealed otherwise. . .
Over the course of six months, a private investigator was able to capture Claimant driving a tractor lawn mower, handling a shovel and trash can, and driving the tractor lawn mower some more. Considering his statements at deposition and his doctors were wildly different, the Employer/Carrier was ecstatic, to say the least, about the surveillance results.
Yet, it was important for the defense of the case to temper our excitement and carefully orchestrate how and when the Employer/Carrier was to use the surveillance. For any misstep in the process could reverse our fortunes entirely.
The natural inclination with surveillance is to show it to the authorized doctors in the claim. They can then reassess Claimant’s current medical condition based on the video. However, an Employer/Carrier must avoid certain pitfalls when presenting the evidence to a physician. A Claimant still has patient rights with his W/C doctor, even though the Employer/Carrier can obtain information from said doctor. Should the Employer/Carrier reveal surveillance to Claimant’s doctors without Claimant’s knowledge, a judge could rule this as a discovery violation, by creating an “adversarial relationship” with the doctor and patient (Claimant).
The best way to avoid this pitfall is to be diligent about the presentation of the video to Claimant’s doctors. The way we handled surveillance in this case I think works best in avoiding any form of discovery violations. I have translated our use of the video into some handy-dandy tips:
Tip #1: Make sure you have surveillance of more than one day. This is so you capture a whole story or mosaic of Claimant’s activities. This also avoids the common excuse from Claimants that “they were having a good day” and “you should’ve seen me the next day, I could hardly move.” Multiple dates reveal a broader picture to the judge rather than a simple snapshot.
Tip #2: Collect as many statements from Claimant as you can before the big reveal. This would include recorded statements, intake forms at doctor’s offices, discussions with doctors, discussions with the Employer, and of course, at deposition. If a Claimant paints a wholly different picture of his condition in these statements than is shown in the video surveillance, the effect of the video will carry so much more weight when viewed by the doctors and ultimately the Judge.
Tip #3: Do not show the video surveillance to the authorized doctors (even your own medical expert) until you have shown Claimant and his attorney. This is the big misstep many Employer/Carriers make. The “gotcha!” moment, the excitement is too much to bear and they rush the video to the doctors. The First DCA has ruled that an Employer/Carrier can not show the video to a W/C doctor ex parte, that is, without the Claimant knowing about it.
If the Employer/Carrier has any intent to use the video to influence the doctor’s opinions, then the courts will interpret this as an intent to use the video at surveillance at trial. And, if the intent is to use the video at trial then Claimant must have access to the video. If Claimant does not, a court can rule the video evidence as inadmissible. To avoid this trap, an Employer/Carrier should show Claimant the video first and then forward it to the doctors.
I know its easier to have the doctors see the video beforehand, but an ex parte communication with them–outside the presence of Claimant–will be seen as a discovery violation. The goal behind discovery rules is that no party is surprise or “gotcha’d!” by the other party. This is why I urge patience when successful surveillance is obtained.
In my case, our goal is to push Claimant toward a favorable settlement while preparing for a trial. Obtaining favorable opinions from his doctors is our goal, but we should not lose sight of the end game by rushing into the defense of our case.
I should also note that surveillance is just one tool for the Employer/Carrier. There are other various tools to use in defending a claim, particularly a claim for permanent total benefits. What I am saying is that surveillance is not the “be all, end all” many think it is. It should be used in conjunction with other defensive strategies and with patience.