Insurance Investigators: Using Video Surveillance

Insurance investigators often use video surveillance to watch people claiming to be injured.  It’s not paranoid, it happens as a matter of fact with some frequency.

They’ll watch you when you’re mowing the lawn. They’ll watch you when you’re carrying groceries.  They’ll watch you at a “big box” store or other places.  Keep reading for some actual real-life stories.

They then show damaging video in court in hopes of destroying the claim.

But in at one case, an insurance company went too far, and a judge who sided with the secret video saw his ruling reversed.

Insurance Investigators & One Video Case Study

A 52 year old construction worker felt sharp pain in his back after lifting a heavy manhole cover. Workers compensation benefits kicked in at some point to help him keep food on the table.  But after almost two years, insurance investigators used a video camera to observe the man.  Video obtained by American Zurich Insurance Company showed the man:

“ … using a hedge trimmer, using an electric drill, pounding the ground with a long-handled shovel, squatting to remove weeds, lifting a little girl, leaning into his vehicle’s middle area and back end, stepping over a 3-foot concrete barrier, and moving about in no apparent discomfort.”

Insurance company video shown to worker’s compensation judge.

A worker’s compensation judge wrote “seeing is believing” then found the worker not incapacitated as of one of the dates of the video surveillance. The decision held that the earlier industrial injury was not a major cause of disability or the need for ongoing medical treatment after that date.

Insurance Investigators Called to Question

But the appellate panel disagreed. The Workers Compensation Review Board accepted the worker’s argument that the judge erred by basing the decision on his viewing of the video.

One problem was that the worker had pre-existing degenerative disc disease, before the manhole injury. An impartial physician before the surveillance wrote a medical opinion that the work injury was at that time a major cause of the worker’s disability.  There was no medical opinion as to whether the ongoing disability was caused by the work related manhole accident.

Video Evidence versus Medical Opinion

So, on appeal, it was found that the judge’s finding amounted to a medical assessment. The error in the initial decision was that a court may not arrive at its own medical conclusion without actual medical evidence.

The facts in In Re: Perez, Nilso, decided on January 29, 2016 are unique, and it is highly likely the result will be appealed further. This blog will be updated should there be any change.  However, the fact remains that insurance companies often use video against those claiming injuries, and video can hurt a case.

The court in the above case emphasized that relevant surveillance videos can be presented to a physician, who then reviews the tape and considers what it shows as part of reaching an opinion on disability and its causes. The case stands for the point that it is error for a court to substitute its own opinion on the effect of activities shown in a video for actual medical evidence.  In other words the court in this case could not arrive at its own medical opinion based solely on the surveillance video; instead, actual medical opinion evidence is required.

Legal Issues in Getting Video Snooping Into Court

In a previous blog post we looked at the frequency of use of video surveillance by insurance companies and questioned the fairness of the use of video snippets later in court cases.   We questioned how and when video can be introduced into evidence under the rules of court.   We have looked at laws allowing video surveillance of unsuspecting people and how privacy violations occur only when a reasonable expectation of privacy is violated.     We’ve even examined evolving law on admissibility in court of electronically stored information of all types.

Video cameras are smaller and easier to hide than ever before. And despite the unique holding in the case described above, video can have a devastating impact on a case.  Consider the case of a person who testifies at deposition that because of their injury they can no longer grocery shop alone, reach items on the top shelf, carry bags to the car or up the stairs.  Later video then shows that individual going alone into a grocery store, lifting jars and bottles from a high shelf into a grocery cart, then loading bags into the car, and finally carrying them up the stairs to her home.

Unlike in the actual case we started with in this blog, the person in the grocery store has now brought their own credibility into question by contradicting not medical evidence, but statements given under oath.

Insurance Investigators & Video

Relevant evidence can always be admitted into evidence, assuming that all other evidentiary rules are followed. The key to its effectiveness and staying power to make or break a case lies with the proper under riding approach and strategy of the attorney, whether they represent the insurance company or the injured party.

Insurance companies spy. I’m not paranoid.  I’ve seen it time after time.  And I don’t blog this subject to make you paranoid, or to even suggest that you sit around on the couch inside all the time.  It’s just wise to be aware of the subject.  If you’re claiming disability it’s smart not to post a vacation volley ball game on Facebook.  If you’re having a good day, it’s smart not to overexert to the point where you’ll be sore and confined to bed later.  You get the idea.

Your case is important both to you but also to this office if we represent you. Our above blog articles summarize the subject.  If you want to know more about not only surveillance but other insurance issues crucial to your personal injury claim, please contact me.

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