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Video Surveillance: Used Fairly to Kill Personal Injury Cases?

Video Surveillance: Can they do that?
Video Surveillance

Anyone with any type of personal injury claim knows or should know that insurance companies use video surveillance to look for behavior that might contradict the claim of injury.

Often used in workers compensation claims, investigators armed with small video cameras follow those making injury claims, waiting to catch them lifting, bending, carrying and in other ways exerting themselves physically in activities potentially contrary to medical reports.

Later, brought into court, the video is dangerous.

Insurance industry insiders explain that they do the video to fight insurance fraud.  And, if catching true “cheaters” were the only result, who could object?  But, has the insurance industry over aggressively pursued video snooping?  Has the insurance industry overreached in secretly tailing injury victims with video cameras?

Video Surveillance and Workers Compensation Benefits

Consider the case of a 58 year old heavy laborer who injured his back while attempting to lift a manhole cover with a co-worker.  An impartial medical examiner found the man in severe ongoing pain and permanently partially disabled.

Insurance investigators followed the man with a video camera.  He was shown “driving women to a store”.  He was taped waiting outside the store, where he stood and walked.  Later he drove the women back to a residence, making one trip from the vehicle to the home while carrying several small shopping bags.

At a hearing on the employee’s claim, insurance attorneys showed the video.  The judge cut off the man’s workers compensation benefits as of the date of the video.  The court noted that the impartial doctor’s opinions were based to some degree on the doctor’s assessment of the employee’s credibility, credibility apparently shattered in part by the surveillance.

But that holding was reversed on appeal and the man’s benefits were restored.  A three-judge reviewing board found the judge erred by assuming that because the impartial medical examiner’s opinions were based at least in part on the employer’s credibility at the time of the exam, the doctor would have changed his mind if he had watched the video.

The reviewing board called that assumption arbitrary, first because the insurance company never asked the doctor about the video.  The record of the case points out the video is less than 13 minutes, while investigators watched the man for nearly an hour.  Further, there was no way of knowing how heavy the shopping bags were and there was no evidence on that point.

Video Surveillance: Quick Conclusions or Evidence?

The review panel found the case similar to another claim in which benefits were cut off based on “inferences” drawn from viewing a surveillance video.  That video showed the injured person standing for an extended period of time at a soccer match and carrying a cooler.  But that decision was overturned because the judge was found to have substituted his conclusory assessment from watching the video in place of actual evidence showing, as required, improvement in the man’s medical condition or vocational ability.

Video Surveillance: Out of Context Snippets?

After suffering an injury, most people desire a return as close as possible to their pre accident normal life.  They sometimes push themselves to do so just as an insurance investigator, lurking nearby, catches a moment of exertion on video.  However, that snippet in time is not likely to indicate the individual’s true overall level of activity, nor can a video show the level of pain experienced by the subject at that time or later.

As long as investigators video a subject in public, they violate no law.  Video in the two cases here occurred at a shopping center and a soccer game.  I’ve addressed violation of privacy by video cameras in another blog article.  Finally, the main case here represents a reviewing board decision, still subject to further appeal.  But it is unlikely the case would have followed the tortured path that it did without the video.

Photo Credit:  Watching You Watching Me by Todd Huffman on flickr. Photo license.

The two cases summarized above are:

In Re: Araujo, DIA Reviewing Board, 036858-10, November 25, 2014.

Jaho v. Sunrise Partition Sys., Inc.,  23 Mass Workers Comp Rep. 185 (2009).

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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

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