Smart Phone Recordings: Double Standard from the Petitioner's Bar?

Thursday, January 17, 2013 | 0

We recently had an inquiry regarding a petitioner, at the request of his counsel apparently, surreptitiously recording the interaction and discussions during an independent medical examination. It is unclear to the writer if the M.D. didn’t put two and two together until after the exam as he did not object and there was clearly no discussion of the recording of the exam by petitioner before or during the exam.
 
We have had numerous discussions with opposing attorneys over the years regarding obtaining recorded statements from claimants as part of the initial or follow-up accident investigation. The majority of the members of the Plaintiff/Petitioner bar in Illinois workers' compensation advise their clients to avoid voluntarily providing recorded statements, even if counsel is on the call or recording. For our readers and claims handlers from other states, we have no Rule or portion of our Illinois Workers' Compensation Act that can “force” a claimant to provide a written or recorded statement, even if they have counsel present on the recording. It is one of the factors leading to what we call “trial by ambush” in our Illinois workers' compensation system—we don’t truly know what a claimant is going to say until they testify under oath.
 
While we understand and share an overall general dislike of being recorded, there have been multiple occasions where a simple and relatively brief recorded statement, as part of an accident investigation, would have cleared up numerous questions regarding the claim. In some instances, a refusal to participate in a recorded statement appeared in this writer’s view to be nothing except a refusal to be held to one version of events regarding a claim. Arguably the refusal to allow complete investigation should justify a subsequent refusal to issue workers' compensation benefits if questions regarding the claim cannot be answered alternatively. In our view, a claimant should participate in a short and simple recording with their counsel on the agreed call/recording to “protect” them if they were to stray too far afield. Everyone should then receive a copy of the recording.

There was also the question of legality and as a refresher to the M.D. performing the IME referenced above and our readers, a reminder serves to confirm Illinois is a two-party-consent state to recordings, so Illinois makes it a crime to use an "eavesdropping device" to overhear or record a phone call or conversation without the consent of all parties to the conversation. The law defines an "eavesdropping device" as "any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communication whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." 720 Ill. Comp. Stat. 5/14-1, -2. In our view, cell/smart phones are included. In addition to subjecting you to criminal prosecution, violating the Illinois wiretapping statute can expose you to a civil lawsuit for damages by an injured party.

You may have noticed recent articles in the news regarding recording public activities, and this article is not purported to cover general public activities as you generally are permitted to photograph or record video of people without permission in most public places as part of an overall right to take photos or videos/recordings with sound in public places. Any attorney who suggests their client record a private meeting should make sure their advice follows the prevailing state law and confirms the need for consent.

A simple reading of Section 12 of the Workers' Compensation Act provides no guidance on recording an IME exam, so it is simply based upon the agreement of the parties—we would argue an individual who refuses to consent to an IME if the physician performing it does not agree to recording is subjecting themselves to denial of the right to ongoing workers' compensation benefits due to the refusal to reasonably submit to the exam as stated under Section 12 of the Act. How our Illinois Workers' Compensation Commission might rule on the issue is anyone’s guess but isn’t worth the time and delay needed to fight. On the other side, we could foresee doctors wanting to protect themselves if claimants all start routinely doing this—the IME doc might want to start recording the IME also as protection against an edited version of the exam.

Shawn R. Biery is a partner with Keefe, Campbell, Biery & Associates, a Chicago workers' compensation defense firm. This column was reprinted with permission from the firm's client newsletter.