Can The Insurance Company Conduct Surveillance On Me After A Workers’ Comp Claim?

November 5, 2020
Stern & Cohen
insurance surveilance on workers compensation cliam
This is a very common question that I get from new and existing clients.  The answer is very simple:  “yes.”  Insurance companies have the right to conduct surveillance on the activities of an injured party that is making a claim for monetary/medical benefits.  This usually comes in two different forms.  The first is video surveillance.  As long as you are in a public space, you have no expectation of privacy under the law.  So, your front yard, shopping locations, driving, etc. are fair game for surveillance efforts.  You cannot be surveilled inside your home.  So, the investigator may not come up to your window and attempt to film you inside.  I had a case once where the investigator filmed my client in a house of worship.  I argued that this evidence should be precluded and the Judge agreed with me.  But, by-in-large, most surveillance is admissible in court.

How Often Do Insurance Companies Utilize Surveillance?

I always counsel my clients not to have a lot of angst about video surveillance.  First, it is extraordinarily expensive.  Insurance companies hate spending money and use surveillance very judiciously.  Otherwise, they can end up spending a ton of money.  So, when a client tells me that they have been under surveillance for a month straight, I explain that they should call the police on that vehicle because it is clearly not an investigator hired by the insurance company.  A month of surveillance would be outrageously expensive!  Thus, although it is not rare for the insurance company to do surveillance on my clients, I would also not describe it as common.

Should I Be Worried About Surveillance?

I tell my clients not to be worried about it!  As long as you are not engaged in activities outside of what you and your doctor think you are capable of performing in a work setting, then it really becomes irrelevant.  If an insurance company gets video of my client carry light bags of groceries or wheeling a trash can to the curb and my client’s pre-injury job requires lifting 50 or more pounds frequently, then what possible relevance is there of such a video?  However, the flip side of the coin is that if your job is light to medium and you carry a bedframe to the corner, you may have trouble convincing a Judge that you cannot do that job.  Just be mindful of your limitations and carry on with your life within those restrictions.  Becoming anxious or fixated on video surveillance is not healthy.

Working While on Workers Compensation

It goes without saying that if you are caught working on surveillance and you are collecting your full workers’ compensation payments or you have made a sworn claim that you are not working, that would be very bad.  You could be subject to criminal prosecution.  Even if you escape that, your case will take a devastating blow.  Contrary to how insurance companies will try and deceive the public with commercials on television depicting fraud, this is actually exceptionally rare.  I have literally handled tens of thousands of workers’ compensation cases and I have maybe had a grand total of 2-3 situations where something like this happened.  Truth be told, I see fraud occurring far more often by insurance companies than insured workers – but, that is a good subject for another blog post in the future!

Social Media

The second type of surveillance that we see is social media reviews.  Investigative companies will dive into injured workers’ social media accounts to see what they find.  They may even try to “friend” the worker if the account is private.  I caution clients to be very careful about their activity on social media.  I do not say this since we may have something to hide, but rather, things can be taken out of context.  If you post a video of you cliff diving in the Caribbean two years ago, the fact that you are re-posting it now could draw the illusion that you were doing this while you were injured.  Something you post might be suggestive of the fact that you are looking for work, even though you are claiming that your injury disables you.  Perhaps that is not how you meant your post, but it is not worth taking the chance.  I tell clients to back off posting to these accounts.  Once again, I find my clientele to be honest and truthful.  I rarely encounter a situation where a social media post becomes evidence in a case, but it has happened.
In summary, surveillance is not something that I spend a lot of time being worried about and neither should my clients.  Honesty and transparency and following doctor’s advice is a recipe for not having to be anxious about this.  I am always happy to have a conversation with a client about this concern in their case.  We pride ourselves on our accessibility to our clients to discuss any issue in their case.