Belly aching.  Exaggerating.  Symptom magnification.  We’ve all heard injured workers complaining more about their pain than the objective findings reveal, especially if the E/C possesses successful surviellance that shows otherwise.  But, is this tantamount to fraud?  

According to the First DCA, no it is not.

Diuejeste v. Dodd Plumbing was one of the oral arguments I stayed to watch after my oral argument last month.  It was interesting to watch the appellate panel examine the facts of the case.  From what I witnessed firsthand, yesterday’s ruling was of no surprise.

Mr. Duijeste injured both his knees in a compensable accident.   He ultimately had surgery to one of the knees and was being recommended for a total knee replacement of the other knee.  At two depositions, Mr. Duijeste testified that he needed to use a cane to ambulate. . . sometimes.  He testified of severe knee pain.  Even his own doctor reported Claimant’s subjective pain complaints and the off and on use of the cane. 

Subsequent surveillance revealed Duijeste carrying a laundry basket and not using the cane until just before he steps into his doctor’s office.  Yet, none of his doctors testified that the behavior in the video surveillance was inconsistent with Duijeste’s statements or presentations to them.  Despite this evidence, the JCC found fraud because Claimant was attempting to portray himself much more disabled than the surveillance revealed.

What the First DCA panel (composed of Judges Davis, Benton, and Padavano) kept questioning the E/C  was: where are the statements?  And, E/C could not point to any. 

Under sections 440.09(4) and 440.105(4), there must be oral or written statementsby Claimant to obtain benefits to justify misrepresentations or fraud.  The JCC and the E/C asserted that Claimant’s nonverbal actions justified the fraud ruling, but the First DCA clearly disagreed.  In other words, just because a Claimant is belly aching about more pain than he truly has, without a definitive statement it is not fraud.

This is one aspect that I advise adjusters on.  As per my previous post about surviellance:   

“[It] is just one tool for the Employer/Carrier.  There are other various tools to use in defending a claim. . . 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.”

Without statements contradicting the behavior on video surveillance, a fraud case is non-existent.  However, surveillance can be a useful tool in establishing Claimant’s disability.  The video might only show improvement beyond what the authorized physicians are seeing, and to that end it has its uses. 

The key is not getting wrapped up in the “gotcha” moment of the video or swing for the fences in an effort to end the claim with a fraud defense, because clearly judges are going to be looking for a concrete specific and specific statement to point to in a fraud ruling.