Surveillance Investigations of Injured Workers
Thursday, February 24, 2011 | 0
By Virginia Hunt
It is not unusual for an insurer or self-insured
employer to hire investigators to videotape injured workers for the
purpose of showing that the worker is not as injured as he or she claims
to be. Investigators typically park in front of an injured worker’s
home to get a few minutes of the worker going to the mailbox, entering
their vehicle, or doing household tasks. These investigators are not
violating the law so long as they are not trespassing, and they may
videotape the injured worker in public places as well.
The real
problem with these investigations is that an adjuster will then forward
edited DVD’s and investigation summaries to the injured worker’s
treating doctor without the knowledge of the patient. It is only when
the injured employee receives a letter that benefits have been abruptly
terminated that the employee discovers that their doctor has been
influenced by a DVD or an investigator’s conclusions. The employee is
often released by the doctor and has no opportunity to discuss the
contents of the DVD with the doctor. Additionally, unless the employee
has an attorney, the employee usually has a very difficult time even
obtaining a copy of the DVD.
I have seen DVD's where the person
videotaped is not the injured worker, and I have found that many times
the doctor will not bother to watch the actual DVD. It takes time to
watch these DVD‘s, as the investigator usually has to catch a minute
here and there over several days to compile a DVD. On the other hand, I
have seen cases where the injured worker has claimed severe disability,
but is then caught doing very strenuous physical activity that is
completely inconsistent.
My complaint is not so much that
adjusters and employers hire investigators to sit outside injured
workers’ homes. Again, there is nothing illegal with that activity.
Instead, my concern is that it is unfair to the injured worker not to
provide her and her attorney with a copy of whatever the adjuster sends
to the treating physician. An injured worker should not be discovering
weeks later when benefits are denied or terminated that their physician
viewed a surveillance video. The injured worker and his attorney should
have an opportunity when the DVD or investigation report is sent to the
doctor to view a copy of whatever is sent to the doctor.
I wrote
to the Division of Industrial Relations recently and asked whether DIR
has reviewed this issue to formulate a policy. I was told that DIR has
not taken a broad position on the manner in which surveillance videos
are sent to doctors, but only investigates particular complaints on a
case-by-case basis if a complaint is filed by an injured worker. I will
be continuing my discussions with DIR on this issue, as I interpret
existing law (NRS 616D.330, NRS 616B.528) as requiring that the insurer
send a copy of a DVD and any investigation reports to the injured
worker and his attorney when they are sent to the doctor. As an
attorney, I have always succeeded in ultimately obtaining a copy of
whatever is sent to the doctor, but not all injured workers have
attorneys or the ability and energy to fight for themselves.
Virginia
Hunt is a sole practioner representing claimants in Las Vegas. This
column was reprinted with her permission from her blog, http://www.nevadaworkerscompensationlaw.com/
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