Ongoing Disability Claims and the Power of Video Recording.
One of the things that keeps me up at night is video being shot on my clients. It is the one area that someone can get into deep trouble if they are fudging the facts. I have had some superb cases decimated over the years, and one client actually convicted of a felony, due to video. The workers’ compensation system is a horribly unsympathetic beast. It also can become a trap for the unwary. Please take a few minutes to read this article and understand why.
From what my colleagues on the defense side have informed me, video is shot in 15% to 30% of filed workers’ compensations cases. I can tell you from personal experience, that if your level of permanent disability is in the 70% to 100% range, you have a denied case, your employer doesn’t like you, someone has a grudge against you, you are going through a nasty divorce or you received a very liberal med-legal evaluation, you have about a 60% to a 100% chance of being the star of your own reality show. That is because there is too much money at stake for a carrier not to hire a gumshoe to follow you around and see what “you really can do.” I want to make sure you are protected. Understanding what you are up against and taking some simple precautions can save a lot of grief down the road.
Like any social program, the comp system has been roundly abused over the years. As a consequence, significant criminal penalties are on the books for people who cheat. For starters, understand that is a felony in the State of California to misrepresent facts in a workers’ compensation claim to obtain benefits. If video has been run on you, and it contradicts what you have represented to doctors, investigators, attorneys, judges or adjusters, you could have a problem.
Video is used against injured workers in two primary ways: prior to their deposition and after their case is settled. Normally, if a carrier is suspecting your credibility, they will run video on you prior to your deposition. Other than inside your own home or a place that you have a “reasonable expectation of privacy”, no place is sacred.
The insurance carrier does not have to disclose video prior to your deposition. You are on your own here and have to be very careful about how you describe your limitations and daily activities under oath. I had one client literally lose a million dollars because of this. The defense attorney cleverly ran a shoot on this person and then took a two hour deposition of my client. She was very detailed in her questioning which greatly concerned me. She sent us the video two weeks later. The video was painful to watch. It showed my client doing many things that were simply contrary to sworn testimony. Credibility is King in this business – once you lose it I have to go into defense mode. There was a significant settlement in this case, however it was a fraction of the value it had been prior to the deposition.
The second way a carrier uses video is post-settlement. There is the famous case of the Red Bluff Bull Rider settling his workers’ compensation claim (involving a purported back injury) and then riding a snorting, bucking bull in the Red Bluff Round-Up. All of this was nicely recorded on video by many folks in the stands and a local TV station. Having done a stint in the local DA’s office, I can tell you that others innocently misrepresent the facts and get caught in the same machine. Smart people carefully utilize the compensation system and are very circumspect in describing their limitations and activities.
Prime time for a video shoot is when you have an appointment that the insurance company knows about: a doctor’s visit, a physical therapy appointment or a deposition at your attorney’s office (yikes). Most of the video I have reviewed over the years occurs right in front of someone’s home. Scarcest of all are the self-inflicted YouTube or Facebook postings demonstrating unequivocally that my client is capable of doing a wide range of things he/she has represented that they can’t.
When can you stop worrying about video? Normally, video is relevant during the pendency of your case. Once it is settled out, carriers progressively lose interest in you. That is especially so if you simply cash out (Compromise and Release). For those that enter into stipulations (keeping their medical treatment rights intact), it is an entirely different story. The permanent disability award can be modified up or down within five years of your date of injury. Your activities during this timeframe are highly relevant to the insurance carrier and their investigators. Thereafter, it is a matter of the statute of limitations on felonies. I can tell you that the DA’s office has to bring a felony case against someone within three years of the date of the wrongful conduct (in the case of a comp claim the misrepresentation by the applicant) or their case is toast. Thereafter, people are normally off the radar unless they are misrepresenting their condition under a stipulated award to their treating physicians. An insurance company is not going to waste resources on you unless they can get something out of it in terms of a reduction of your benefits or a referral to the local DA.
We want to get you safely and effectively through your workers’ compensation claim. As always, if you have a question, please feel free to call.