Private Investigators and Video Surveillance in Louisiana Workers Compensation
Louisiana workers compensation insurance companies frequently hire private investigators to perform video surveillance on injured employees, for the purpose of avoiding coverage and denying workers compensation benefits such as lost wages and medical benefits.
The workers compensation insurance companies will claim that they utilize private investigators and video surveillance in order to identify instances of fraud and that they are merely trying to make sure that the employee is not exaggerating any injuries or lying about them in an effort to obtain workers compensation benefits.
But in reality, these workers compensation insurance companies are usually just trying to find a reason to deny valid workers compensation claims under false pretenses, and will often take snippets of video out of context and try to prove in court that an employee’s injury is fake or exaggerated.
A typical workers compensation insurance company will hire private investigators to obtain video surveillance of an injured employee that shows the employee performing actions or activities that do not correspond to his or her injuries.
In other words, the workers compensation insurance company will try to obtain video surveillance of, for example, an injured employee pushing his lawnmower despite a physician’s order against physical activities.
Also, the workers compensation insurance company will often have the private investigator schedule video surveillance on days when the injured employee has a scheduled medical appointment or a deposition because the private investigator will know almost exactly when the employee will be leaving his or her home that day, and where the employee will be going, in order to easily surveil and capture video footage.
In fact, on the day of a scheduled medical appointment or a deposition, the injured employee should assume that all his or her activities will be videotaped – from the moment the employee wake up until the moment the employee returns to his or her home at the end of the day.
Then, once the workers compensation insurance company has obtained the video surveillance, it will use that video to assert a fraud defense against the employee in order to deny the employee all his or her workers compensation benefits, or even just to reduce the settlement value of the employee’s claim.
The insurance company does not care that an injured worker has good days and bad days, or that the worker was just pushing the lawnmower for a minute or two; the only interest to the insurance company is its bottom line, as that is what is required under law – to maximize profits for its shareholders.
WHEN ARE PRIVATE INVESTIGATORS TYPICALLY HIRED IN LOUISIANA WORKERS COMPENSATION?
The workers compensation insurance company will usually claim that it hires private investigators to perform video surveillance on an injured employee whenever it becomes suspicious of an employee’s claim.
But in reality, workers compensation insurance companies frequently hire private investigators to perform video surveillance even when there is no basis for suspicion on an injured employee.
And, workers compensation insurance companies frequently hire private investigators to perform video surveillance once they feel that a claim is entering settlement mode, or if the claim is a large claim, because even if they cannot assert a fraud defense to deny the employee all his or her workers compensation benefits, video surveillance at the right time can be enough to significantly reduce the settlement value of the employee’s claim.
A workers compensation insurance company will use the most trivial of events as a basis to surveil, such as:
- When there are no witnesses to the accident;
- When the employee didn’t receive immediate medical attention following an accident or injury;
- When there was a large lapse in time between when the accident occurred and when it was reported;
- When the employee repeatedly misses scheduled doctor or medical treatment appointments;
- When the employee claims an emotional injury;
- When the employee claims a soft-tissue injury; or
- When the employee claims a subjective injury that is hard to verify.
Also, the workers compensation insurance company will hire private investigators to perform video surveillance when it hopes to find that:
- The employee claims that he or she is too injured to return to work, but is actively participating in other physically strenuous activities;
- The employee claims that he or she is too injured to return to work, but is working elsewhere off the books while not reporting that income to the insurance company; or
- The employee claims that he or she was injured at work, but was actually injured somewhere else.
However, the workers compensation insurance company will initiate video surveillance, even if there are no such factual bases for the video surveillance, and even if the employee’s claim shows no red flags; the insurance company is simply looking for a reason to deny or minimize the injured employee’s benefits.
In fact, it is estimated that private investigators and video surveillance are used in approximately 25% of all workers compensation claims.
PRIVATE INVESTIGATOR SURVEILLANCE ACTIVITIES IN LOUISIANA WORKERS COMPENSATION
Private investigators hired by Louisiana workers compensation insurance companies will use a variety of methods and activities to surveil an injured employee.
When engaging in typical surveillance methods and activities, these private investigators will:
- Target an employee during his or her time off;
- Target an employee when he or she is supposed to be receiving medical treatment;
- Target an employee when he or she is supposed to be giving a deposition;
- Follow an injured employee to the grocery store in an effort to video the employee carrying heavy grocery shopping bags;
- Take the air out of an injured employee’s car tire, hoping to videotape the injured employee changing the tire;
- Take photographs or video of the employee’s activities, especially when the activities do not correspond with the employee’s reported injuries;
- Use sophisticated cameras and video equipment while tracking the movements of the employee;
- Contact the employee at his or her residence under false pretenses;
- Talk to an employee’s neighbors about other jobs or physical activities;
- Track an employee’s internet and social media activity;
- Search an employee’s social media site for evidence of physical activities;
- Monitor an employee’s business cell phone or computer;
- Install spyware on an employee’s business cell phone or computer;
- Avoid detection by wearing disguises, glasses, sunglasses, baseball hats, costumes, and driving a vehicle with tinted windows;
- Utilize state of the art camera, audio, video and other surveillance methods;
- Conduct interviews with witnesses, employers, co-workers, and the employee’s family, friends and neighbors;
- Investigate and research the accident scene;
- Perform background and investigative checks;
- Determine whether the employee has previously filed numerous workers compensation claims in the past;
- Determine whether the employee’s family has previously filed numerous workers compensation claims in the past; and
- Prepare a professional report detailing the case documentation materials, and photographic, video and written evidence.
The bottom line is that often the workers compensation insurance company will go to any length not to pay an injured worker’s claim, and most of the time that means: delay the claim, deny the claim, and put surveillance on the employee in order to gather “proof” that the insurance company doesn’t have to pay the injured worker.
HOW TO HANDLE PRIVATE INVESTIGATOR SURVEILLANCE IN LOUISIANA WORKERS COMPENSATION
An injured employee in a Louisiana workers compensation claim should strongly consider taking matters into his or her own hands in order to counter the activities of a private investigator hired by the workers compensation insurance company.
Ideally, before taking any such measures, the injured employee should work with an experienced Louisiana workers compensation attorney to determine the best courses of action.
An injured employee can take the following measures to counter the surveillance activities of a private investigator:
- Always be on the lookout for individuals who may be conducting surveillance;
- Always follow the orders of the employee’s doctor as closely as possible, meaning if the doctor tells the employee not to lift more than 20 pounds, then the employee should not ever lift more than 20 pounds;
- Always be extra thoughtful to follow the orders of the employee’s doctor, even when not thinking, in a hurry, or distracted;
- Always assume the employee is being watched by a private investigator, and act accordingly;
- Never talk to, confront, or interact with a suspected private investigator;
- Never use profanity or flip-off a suspected private investigator;
- If the employee thinks he or she is being videotaped, pretend that the employee does not know they are being videotaped;
- Avoid making social media comments or posts about the employee’s injuries, workplace or physical activities;
- Hire the employee’s own private investigator to determine if he or she is being surveilled;
- Check the employee’s business cell phone or laptop for spyware;
- Check the employee’s business cell phone or laptop for special apps or software programs, which may shorten battery life, emit random noises, reduce call quality, increase data usage, or produce strange texts messages;
- Be cautious at all times whenever out in public or working outside the house; and
- Never work – even part-time or through self-employment – while receiving workers compensation lost benefits, unless that extra income is being reported to the workers compensation insurance company by use of OWC Form 1020 (Employee’s Monthly Report of Earnings).
By far, the most important thing for an injured employee is never to do anything that is outside the physical restrictions put on the employee by his or her doctor, especially concerning lifting, bending, walking, running, climbing, physical exercise, lawn work, heavy outdoor chores, and other physical activities.
THE LOUISIANA STATUTES FOR PRIVATE INVESTIGATORS AND VIDEO SURVEILLANCE IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statutes regarding private investigators and video surveillance are La. R.S. 23:1208, La. R.S. 23:1208.1, and La. R.S. 23:1208.2, which read as follows:
§1208. Misrepresentations concerning benefit payments; penalty
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
C.(1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both.
(2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.
(3) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of less than two thousand five hundred dollars, shall be imprisoned for not more than six months or fined not more than five hundred dollars, or both.
(4) Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers compensation judge of not less than five hundred dollars nor more than five thousand dollars payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers compensation judge, forfeit any right to compensation benefits under this Chapter.
F. Whenever the employer reports an injury to the office pursuant to R.S. 23:1306, the employer and employee shall certify their compliance with this Chapter to the employer’s payor on a form prescribed by the assistant secretary, which form shall include all of the following information:
(1) A summary of the fines and penalties for workers compensation fraud.
(2) The names, addresses, phone numbers, and signatures of the employee and the employer.
(3) The fine or penalty that may be imposed for failure to report to the payor as required by this Section.
G. Whenever an employee receives benefits pursuant to this Chapter for more than thirty days, the employee shall upon reasonable request report his other earnings to his employer’s payor on a form prescribed by the assistant secretary and signed by the employee.
H.(1) Whenever an employee fails to report to his employer’s payor as required by this Section within fourteen days of his receipt of the appropriate form, the employer or payor may suspend the employee’s right to benefits as provided in this Chapter. If otherwise eligible for benefits, the employee shall be entitled to all of the suspended benefits after the form has been provided to the payor. Suspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E). The employer or payor may move for an order to compel the employee to return the form.
(2) Whenever an employer fails to report to its payor as required by this Section, the employer may be subject to a penalty of five hundred dollars, payable to the payor.
(3) The payor may request an assessment of a penalty for the employer’s failure to report as provided in this Subsection by filing a form LDOL-WC-1008 with the assistant secretary.
I.(1) No person acting gratuitously and without malice, fraudulent intent, or bad faith, shall be subject to civil liability for libel, slander, or any other relevant tort, and no civil cause of action of any nature shall exist against such person or entity by virtue of the filing of reports or furnishing of other information, either orally or in writing, relative to a violation by any person of the provisions of this Section.
(2) The grant of immunity provided by this Subsection shall not abrogate or modify in any way any statutory or other privilege or immunity otherwise enjoyed by such person or entity.
Acts 1989, No. 454, §5, eff. Jan. 1, 1990; Acts 1992, No. 763, §1; Acts 1993, No. 829, §1, eff. June 22, 1993; Acts 1995, No. 368, §1, eff. June 16, 1995; Acts 1995, No. 1129, §1, eff. June 29, 1995; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 1997, No. 90, §1, eff. June 11, 1997; Acts 1997, No. 394, §1; Acts 1997, No. 1108, §1; Acts 2003, No. 702, §1; Acts 2005, No. 257, §1; Acts 2013, No. 337, §1.
§1208.1. Employer’s inquiry into employee’s previous injury claims; forfeiture of benefits
Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of workers compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.
Acts 1988, No. 938, §2, eff. Jan. 1, 1989; Acts 1989, No. 454, §5, eff. Jan. 1, 1990.
§1208.2. Duty to report fraud; immunity from civil liability
A. Any person having knowledge of or who believes that an act is being or has been committed in violation of this Chapter shall report orally or in writing to the assistant secretary the information that forms the basis of such knowledge or belief, as well as any such additional information relevant thereto as the assistant secretary or his employees or his agents may require.
B. Any person who provides information pursuant to this Section without malice, fraudulent intent, or bad faith, shall be immune from all civil liability for such action.
Acts 1995, No. 368, §1, eff. June 16, 1995.