Can My Employer Surveill Me in a Workers Compensation Case?
For the majority of the population, the idea that you may be surveilled at any point in your life sounds ludicrous. That’s the kind of thing that typically happens to spies and movie heroes, not to everyday people.
Yet if you’re involved in a workers compensation case, surveillance is a likely outcome. It’s important to understand this, and to account for it.
When is surveillance likely to start?
It could start at any point during your case, but the time when it most often happens is when you’ve reached maximum medical improvement and have been given a set of permanent restrictions by your doctor. This is especially true if you haven’t been able to go back on the job because they don’t have light duty available for you.
In many workers compensation cases this is the point where the case is about to be settled, and it becomes the point where the insurance companies want to do whatever they can to pull the plug on paying you anything at all. They are going to want to find reasons to gut the case. Often, documenting the worker’s own behavior is the best way to do this. If they can catch you doing something that is prohibited by your doctor’s list of restrictions then their position becomes very powerful.
What should you do if you know you’re being surveilled? Can anything be done about it?
The only thing you should worry about doing is complying with the restrictions given to you by the treating physician. Even if you spot the PI or investigator who is following you around there’s not much you can do.
Your attorneys cannot call the investigator off, and confronting the investigator does no good. It’s not against the law to surveil you.
In many cases you will never find the person who has been sent to watch you in the first place.
What happens if you’re found doing something you shouldn’t be doing?
There are a couple of consequences to being caught ignoring your restrictions.
Sometimes the insurance company sends the footage to your treating doctor. As this doctor usually works with and for your employer anyway that is often a signal to the physician that you’ve been lying about your pain or symptoms.
They might well instantly release you back to full duty, which can be disastrous if you can’t actually do the job. It would also mean an end to your workers compensation case.
The footage will absolutely come into play if the case goes to trial. It will allow the insurance company lawyer to cross examine you about your activities. It will turn juries against you and cause you, in most cases, to lose your workers compensation case. The existence of footage may make it impossible to settle your case out of court.
How can you prevent problems caused by surveillance?
The only way to prevent problems caused by surveillance is to follow your doctor’s instructions to the letter. Really think about your restrictions before you do anything. It’s common to fudge them just to try to get through a daily routine when it’s inconvenient (i.e., restrictions about using stairs), but don’t fudge anything.
Wait until your case is over. Make arrangements to avoid everything on the list. You don’t have to be an active fraud to run afoul of surveillance. All it takes is one moment of carelessness.
See also:
Should You Settle Your NJ Workers Compensation Claim?
When Can a New Jersey Employer Deny Your Workers Compensation Claim?
What to Do If Your Employer Violates Doctor’s Orders in New Jersey
