Safety and OSHA News

Employer surveillance ‘harmed’ employee, court awards 1 million

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Have you ever been suspicious of a workers’ comp claim? Be careful. A recent ruling appears to draw an important — and, in this case, extremely expensive — distinction between “reasonable” and what you might call “reflexive” suspicion.

The West Virginia Supreme Court of Appeals has upheld a $1 million punitive-damages award against a mining company accused of retaliatory discharge against a worker who’d filed a comp claim.

One key: what the jury viewed as unreasonable suspicion. It saw the company’s surveillance efforts as evidence of malicious conduct.

Specifically, the court noted, the company had “placed (the employee) under surveillance” and had “continued its surveillance” even after the employee said he could return to work.

And that was a contributing factor in the jury’s decision that the employee was “severely harmed” by the company’s actions.

The court added in a footnote: “That is not to say …  that an employer may not use surveillance techniques to investigate the veracity of an injured employee’s claim for workers’ compensation benefits.”

Maybe not, but it certainly raises questions.

Where should companies draw the line? Is routine surveillance of comp cases reasonable, or should companies have to justify their suspicions before going to such lengths? Tell us what you think in the Comment Box below.

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Comments

  1. Surveillane within the confines of the constitution’s illegal search and seizure provisions should be a viable WC defense pratice BUT – All employees upon hire should be provided with a written notice that in fact all accidents will be investigated to the fullest extent provided by law including surveillance from internal security camera’s (if they exist) as well as external surveillnce – at the sole discretion of the emplyer – and that this surveillance evidence may be presented in court a the sole discretion of the employer (upon request for discovery however – this evidence would have to be made known tot he court – regardless of findings)

  2. I think companies should have reason to suspect first before initiating any surveillance. I think they should have a courts approval first.

    They look for any reason to deny benefits. I read about one case where they guy was out for a back injury. He was doing fine except he picked up his own baby and that was enough to deny his claim.

  3. William Ferry says:

    Surveillance reasonably related to the purposes of the investigation is an acceptable practice; generalized surveillance outside the legitimate work related investigation into work related disability is not; the presumption of an authority to do so for any purpose or “just because I can” when the employee signed a release is not an acceptable practice.

    I am not certain any Constitutional protections have bearing on the issue, as those are intended to limit the power of the government, not necessarily the employer. This is a civil matter between the employer and the employee. Was the continuing surveillance reasonably related to the employment issue in question? Apparently no! Did the information collected in the extended surveillance cause a harm or damage to the employee? Apparently yes! Was that information improperly used or disclosed to others who had no legitimate need for the information? Apparently the jury thought so!

  4. Jason Reynolds says:

    I believe that to use this as a reason to not conduct surveillance on an employee is a “reflexive” reaction that is being warned against here in the first place. There are two very specific issues at play here. One is that this employee was being surveilled, according to the article, even after employee could return to work. This is at the very least harassment if there is no extenuating circumstances behind this, the other is that the employee was terminated with the appearance that it was retaliatory.
    Now the way that most law is written and interpreted, it allows for treatment of employees to be consistant across the board with all employees. Surveillance can and should be performed on cases that there may be some potential for abuse of the system. Once the results from that surveillance is reviewed, then unless there is a justifiable cause for added surveillance, no more is warranted unless it is company policy to have such surveillance until employee is able to return to work.
    This is a situation where it seems that the employer took advantage of their position of strength to get rid of an employee after an injury. The fact is, if there was a problem with this employee previously, then they needed to get rid of that employee earlier, and there would not have been an injury that they would have to deal with in the first place.

  5. What caused the Harm? Did he have people following him down the street with a camera like the poparazzi? this article is vague on what caused harm or what the jury defined as malicious conduct.

    I know that if I had an employee do something he wasn’t supposed to do and injured themself, and then came back to work, I would be watching them a little closer than before to make sure they don’t do it again, or hurt someone else, and see if they need additional mentoring or training.

  6. tammy gray says:

    i think the judgement is unfair. if employees are honest they don’t worry or care what’s on camara. it’s a shame that the system protects dishonest people and those seem to be the ones that come out on the top

  7. Notwithstanding legitimate injury and need for compensation, workers compensation is a multi-billion dollar fraud industry. I think surveillance is necessary tp protect not only the employer from fraudluent claims, but also to protect the next truly injured employee. Since this article does not mention if the employee that returned to work is seeking a permanent disabilty award it is hard to judge whether the employer still had a reasonable suspicion as to the claim.

  8. No harm no foul.
    If the West Virginia worker compensation laws are as ridiculous as Michigan’s you need to do everything you possibly can to assure the validity of a claim.
    This article , unfortunately, does not provide the necessary information to formulate an intelligent reponse. I would suggest that Jim Burger consider another line of work.

  9. Tammy the point of the article is that the company continued surveillance after the guy was declared fit for full duty.

    It was the “After” part of the surveillance that the company was sued. It was being excessive and someone had to make the point of putting a stop to it.

    The guy being watched wasn’t being dishonest.

  10. We can speculate on what, when, how and why, but without the facts of the case we will just end with speculation. Behaviors

  11. The employer’s behavior exhibits Fascism at its finest.

    So now what are people going to do? Just not report any injuries out of fear of losing their jobs, because that is the message the employers are putting across.

    The courts are putting a stop to that type of fear tactic.

    Regardless of weather or not the employee was committing fraud on his claim isn’t an issue. No where in the article does it state the employee committed any fraud.

    The doctor determined the employee was fit for duty, so the employee can go back to his full duties at work. Therefore, the surveillance stops. The employer was getting carried away. Maybe the employer has cameras mounted in the bathrooms.

  12. In most of these articles we are not given enough facts to actually make an informed comment. The one thing I do know for sure is the Worker’s Compensation system is extremely difficult for the employers, and fraud runs rampid. I firmly believe that if an employee is honestly hurt on the job they should be taken care of, but unfortunately there are a lot of people out there that are well aware of how easy it is to scam the Worker’s Compensation system.

    It is always “employer beware”.

  13. The whole story is not here. This is again a story designed to use sensationalism to get people to read it. This is the shame of the media. Retalitory discharge is illegal and this article leads to speculation as it sound it like someone at the company is just plain stupid and tried to manipulate the evidence to disallow the entire WC claim and fire the employee. This is speculation of course BECAUSE THE WHOLE STORY ISN”T HERE!

  14. Walt West says:

    Sounds like another liberal judge and jury. I handle my companies wcc and can tell you fraud is still there. But what I see is that the fraud in most instances is not the injury, but where the injury occured. We sill do servalance to determin workablilty.

  15. Steve H. says:

    Robert,
    Where in the article did it say: that a doctor said he was fit for duty?
    that he wasn’t suspected of committing fraud?
    You are reading too much into this, just like many of the Administrative Law Judges who try these cases.
    Again, there is not enough information here to form an opinion, but we definately don’t need someone making things up!

  16. The default presumption seems to be that every injured employee is defrauding the company, and therefore every injured employee is to be placed under surveillance. That’s just wrong, particularly after them ployee can come back to work.

  17. Steve,
    “The Employee said he can return to work.”

    You can assume that he’s been given clearance by a doctor.

    My point is about the continued surveillance after the employee has returned to work.

    The surveillance should stop.

  18. I do believe that a company should be able to utilize surveillance, but they should have reasonable suspicious prior to going to this “extreme.” I do not believe that the courts should be tied up with each and every request for surveillance (after all, this is still America, isn’t it?) However, I also think that the company should have reasonable suspicion and should be ready and willing to establish such should a court case be necessary (this is what counsel are for; a second check and guidance as experienced, intelligent HR professionals manage risks for a company.)

  19. Did anyone reading this article and posting comments notice the hyperlink in paragraph two, which when clicked on brings you to a copy of the appeal verdict? For those of you expressing the opinion that there is not enough information in the article to post comments should look there.

  20. Melissa WCC says:

    Robert,
    I have to say I agee with Steve and the others who support the use of surveillance. I think you are jumping to the wrong conclusion about the employeer. I also handle wcc for my company and the fraud runs deep and 99.9% of the WC law in my State is employee freindly. As for when surveillance should stop, it does not state in this article that the employee was released to full duty, just that the employee was working. I myself would continue surveillance if the employee was still under some sort of restrictions. Fraud is Fraud!! Even if working under partial duties.

  21. Just want to chime in on survelliance. I have been an investigator for 30 + years. I have worked both sides of the fence. One thing I know for sure is that injured people have good days and bad days. If you happen to catch them on a good day (like the person picking up his child) it looks bad for the worker.Lets face it do any of you always do what your doctor tells you to do. Every case must be looked at in its totality. It is hard to make a call with out all the information.

  22. I have to agree with Robert, if and only then the company has reasonable suspicious and court ruling should the employee be under surveillance.

    My husband hurt his back at work while I was pregant with our daughter, I was a high risk pregency, we went to purchase new pillow, and becuase he was carrying them, his employer tryed to use that against him to stop benfits. Keep in mind my husband wanted to go back to work

  23. Reasonable surveillance should be expected whenever a workers comp claim is filed. I for one do not like the idea that my tax dollars pay for some slug who simply doesn’t want to work and sees a free ride. It’s the same as welfare fraud. If I were the employer paying for an injured workers claim I would definately want assurances that the claim is legitimate. We ALL pay for fraud, WC, welfare, insurance etc. If I knew someone was committing fraud to steal from taxpayers I would do everything I could to stop it. We all should. I see reasonable surveillance as a tool to protect us from the thousands of dishonest people saying “ouch, I hurt my back” and then laying around on the couch collecting my tax dollars.

  24. In response to Roberts comments “We should seek court approval for any surveliance” Not sure that is practical to have all surveliiance approved by the courts, which courts, under what statute or regulation, what surveliance and are courts geared up for hundreds of thousands or millions of request each year this could generate.

    Without more specifics on this case than the article provides its difficult to get too excited about one case that probably doesn’t apply to most other situations.

    I do like the suggestion to clearly lay out the organizations surveliance policy to employees in the handbook.

  25. As Sheryl stated on 8/4, click the hyperlink in the article for more details on this case. It appears the employer crossed the line. We do surveliance on very few cases and only those that raise lots of flags as it is VERY difficult to prove w/c fraud. Our company pays the cost of surveliance and not w/c. It serves a purpose when used appropriately.

  26. I don’t know why the company bothered to have him surveilled; its almost impossible to prove workers comp fraud in W. Va. I’ve had workers off on 100% disability due to back injuries, filmed roofing their houses, changing engines in pick-ups and winning square dancing contests and the courts ruled againt us.

  27. Have any of you read the actual case proceedings? I’ve read the actual case and there’s NOTHING in the case that I read that even mentioned “surveillance”. Whoever wrote the headline for this case missed the entire point of the claim. If you take the time to read the claim, I think you’ll agree that the employer was wrong. This employee actually showed up for work and was fired.

  28. Only someone who has never suffered an injury severe enough to keep you off work indefinitely could suggest that there is ANY advantage to a comp claim! Never mind the suffering and general inconvenience, the benefits are nowhere near enough to replace lost wages. Get real. I’d bet doctors & clinics who overcharge and provide bogus treatments are responsible for the biggest part of the losses.

  29. KATHY- Obviously you have never worked in the Worker’s Compensation field, because truelly there are a lot of people out there that will work the system any way they can, and they are not injured, they just want something for nothing. Those of us that are willing to work for what we want and need are not the problem here. It is the people who don’t want to work and will take anything for free that they can get wether they deserve it or not. The advantage is for them they don’t have to WORK!!!!! I do agree that there are also doctor’s and clinics guilty of milking the system.

  30. Rodney – it’s a bit buried in the appeal that is hyperlinked above but I beleive the surveillance was part of the case for punitive damages. I couldn’t find it at first either but it’s there, more toward the end. Agreed not really the main point of the case but it did make for some interesting conversation.

  31. He should have gotten paid now when you’re hurt and need workers comp which doctors tell you to go on so you can heal now I need Big Brother to watch me and contiue to wacth when I return to work now that going a little overboard. I also know there are some who try to buck the system those are the ones you need to watch!

  32. I’m just wondering how the employee was “harmed” by being surveilled?

    Unless they found something to discredit his claim, where is the harm? Surveillance is generally conducted in areas where the employee is out in public and should have no reasonable expectation of privacy, so I’m just trying to figure out what harm he suffered.

    That being said, I’m also not sure why the employer would conduct surveillance after the employee is able to return to work, but as others have pointed out, many pertinent facts are missing from this story.

  33. Perhaps the implication is that they wanted to “catch” him doing something that would justify terminating him, or that could “prove” his claim was somehow not worthy. And considering his age, there may have been some discrimination involved.

    It’s hard to fake broken bones, but employers do not always understand how long it can take to recover. I know a business owner who pressured a family member to work while out on a comp claim. (The work needed to be done!) He did not beleive she had a serious problem until she ended up in surgery.

  34. John De Los Santos says:

    I can see doing an investigation during the claim but to continue it after the employee was declared fit to return to work is just a waste of time and energy. What was the company hoping to find out? I do think the judgement is a little over the top. It is cases and judgments like this that drive cost higher and higher every year. I do agree with several others, too many facts were left out of the story.

  35. Of course a company should have to justify any higher level of surveillance directed at an individual or group within the business. If they could have justified it they might not have lost the punitive portion of the case. As this is the only area which mentions the surveillance it is the only part of the court’s decision that would be altered.
    I disagree that facts were left out. Those facts were not given to the jury for review therefore they don’t exist. That is how our system works for better or worse. After reading the case it sounds like all findings were reasonable and this was a case of the employer trying to do what they wanted in spite of the system.
    This is the way of any system ever devised and the real question about WC is can this sort of thing be kept to a minimum or is it what is happening a majority of the time. If a majority of cases are fraudulent or engineered then our system needs to be fixed. I am ever an optimist and would like to believe the people and businesses that are protected by WC are better off with it than without it.

  36. Workers are being scrutinized and labeled as malingering fakers by employers and workers comp boards all across North America. My personal experience is that workers comp is legalized medical insurance fraud. Many physicians are not conducting proper physical examinations and due to this medical malpractice, many injured workers are being crippled and disabled, severe chronic pain.

    In Canada the Government is protecting Doctors from lawsuit and due to this they are getting rich selling medical opinions which they are stating without even conducting any diagnostic tests. I was injured on the job and workers comp denied me physicians requests for help, now I am crippled and have had 14 appeals were workers comp has fabricated medical and work evidence.

    In Canada injured workers are being denied operations and told their is no reason for their pain, with multiple spinal fractures, workers compensation adjudicators are criminals and should be in JAIL.

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