Reviewing surveillance film is often a flop, like the summer blockbuster that disappoints with a thin plot and weakly-developed characters. Watching thirty or forty minutes of an applicant ambling around a strip mall parking lot, watering her flowers, or driving around town, surveillance films often fail to live up to our expectations.
However, by ensuring that an investigative firm understands its broad powers, films can be transformed into powerful weapons in litigation.
Since the 1990s, many investigators have felt restricted by California’s strong “anti-paparazzi” laws, which were designed to protect our beloved celebrities from unreasonable invasions of privacy. However, these laws expressly allow private entities, such as insurers and their investigators, to conduct surveillance when “supported by articulable suspicion” (and let’s admit, we’re all suspicious), especially when there may be a suspected “fraudulent” insurance claim.
But what is an “articulable suspicion”? The term is not defined, but it appears akin to “probable cause.” Is there a legitimate reason to suspect that applicant’s injury may not be as debilitating as he claims? Perhaps the employer has expressed concerns about the validity of the claim, noting that applicant’s coworkers have observed him without any visible restrictions. Perhaps the defense attorney noticed that applicant did not stand during the hour-plus deposition, but he told the medical evaluator he must stand every 20 minutes. Deposition testimony can also provide a strong basis for an investigative referral. An applicant who testifies that she can barely move, bend, or walk can justify investigation, including surveillance films.
Before undertaking surveillance, make sure there is something objective and reasonable—something you can articulate before a judge at the WCAB—as to why surveillance was conducted. It is critical to know the self-reported restrictions and complaints before assigning surveillance.
As for the timing of surveillance, the day of the medical-legal examination is powerful in terms of contradicting what applicant told the QME versus what he did that same day—such as walking without assistive devices, standing or sitting for extended periods of time, and lacking pain behaviors. When a physician is confronted with films that contradict what he/she was told the very day of the exam, this can potentially cause the examiner to “flip”, or retract the diagnosis or impairment level he/she previously assigned. Indeed, many a physician has expressed anger and frustration at having been lied to…and having believed the falsehoods. Watchout for the wrath of a physician, deceitful applicants!
Adjusters should not be afraid to tell their investigators that they want footage inside locations such as stores and malls. Far too often, footage is limited to applicants arriving at a store, exiting their vehicle, and entering the business. The footage then stops, and resumes as applicant exits the store. The most that can be gained from this footage is a short walk, entering and exiting a vehicle, and perhaps carrying a bag or two. Such evidence is rarely persuasive when presented to an evaluator or judge.
Interestingly, the WCAB has expressly endorsed the introduction of film obtained in alleged “private” locations. In Duong v. Automobile Club of Southern California (2014 Cal. Wrk. Comp. PD LEXIS 492), applicant alleged a cervical injury and defendant secured surveillance of applicant by following him to his mobile home park, as well as inside a local grocery store. The grocery store had signs prohibiting videotaping or photography anywhere on the store premises without prior consent. Applicant, at trial, moved to exclude the videotapes. The judge agreed and excluded the films.
The WCAB granted reconsideration and reversed. Although the footage may have been obtained against store and mobile home policy, the law did not prohibit private investigators from obtaining, in workers compensation cases, video that violates a private establishment’s walls. WCAB further held the applicant did not have a reasonable expectation of privacy at his mobile home park (at least the public areas) or in the grocery store.1
The WCAB further concluded in Duong that an injured worker must expect a reasonable investigation by the insurer, including videotapes of alleged activities of daily living. Therefore, the evidence was admissible.
One of my most successful experiences with surveillance was during a trial when, in addition to obtaining surveillance of applicant outside of his home and on his way to a medical appointment, the investigator followed applicant to a local store. The footage did not stop at the entrance. Rather, the investigator obtained a shopping cart and followed applicant and his companion extensively throughout the store. He obtained footage of applicant lifting a 50 pound bag of dog food into his shopping cart, as well as bending down to examine a row of shoes (both of which violated his self-professed restrictions). The surveillance proved persuasive at trial. In particular, the footage obtained inside the store, which starkly contrasted with the rather benign outdoor footage, tipped the scales against applicant’s credibility.
Contrary to what adjusters and some attorneys may think, the film does not “speak for itself.” Like any other evidence, it must be authenticated. A defense attorney must provide a foundation for the film in order for it to be admitted as evidence. Therefore, it is critical to know the dates, times, and locations of the footage. Most importantly, the defense must be able to produce the investigator at trial to testify to the surveillance activities and the validity of the film. Applicant attorneys, when confronted with damning films, will pull out every stop to try and exclude or diminish the evidence. Be sure that the defense attorney has spoken with the investigator(s) who will testify so they are prepared for trial.
Finally, films must be produced before trial (the Mandatory Settlement Conference being the latest to disclose) or before it is provided to the medical evaluator. There are no Matlock moments at trial, unfortunately. Many applicant attorneys will object to surveillance, with the most commonly-raised objection being that the footage does not represent the applicant’s “true” condition because it has been edited. However, films should not be excluded if they have been disclosed and applicant has been afforded the opportunity to undertake discovery, such as deposing the medical evaluators or investigator.
Insurers have the right to conduct surveillance, but to be effective an aggressive and creative approach to gathering this evidence is necessary. Provided that surveillance does not exceed reasonable boundaries and is disclosed before being shown to an evaluator or at trial, it can produce powerful effects on the minds of its viewers.
So relax, and lights, cameras, action!
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Mr. Burns practiced civil litigation and employment law. He currently serves as an arbitrator for the Santa Clara County Bar Association’s Fee Dispute Resolution Program. Since joining B&B, his primary areas of practice include workers’ compensation and subrogation. Mr. Burns can be reached at firstname.lastname@example.org or (408) 392-8202.
1 It is important to note that there are some clear restrictions on obtaining surveillance. Labor code § 435 prohibits surveillance in facilities designed for the changing of clothes (locker rooms, dressing rooms, etc.), in most scenarios. Penal Code § 647(j) prohibits videotaping people in stages of undress.
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