Greetings, good surveillance can be an effective tool in defending a WC claim in Florida. The decision on how, when and where to use it effectively can be tricky.
The three primary objectives in utilizing surveillance are:
- Pursuing a 440.105 misrepresentation defense to the entire claim
- Allowing a doctor to view the claimant’s true physical capabilities to help determine appropriate treatment and restrictions
- To demonstrate a claimant’s lack of credibility
Let’s look at each of those separately. As an aside, it is very important you confer with defense counsel on when to send surveillance. The caselaw states the surveillance MUST be produced contemporaneously to the claimant if it is sent to the doctor. In some cases, it may make sense to wait to depose the claimant first before sending, but that is something you should discuss with an attorney in our firm of course.
- Misrepresentation defense- If you have surveillance of the claimant doing much more than they have told the doctors they are capable of you may have a misrep defense. It requires the doctor to state the claimant gave false, misleading or incomplete statements. If the video shows the claimant working and they denied that in a deposition, a recorded statement, DWC-19 or to the doctor, you also potentially have a misrep defense. The key point is the surveillance must show that a written oral statement made by the claimant was false, incomplete or misleading.
440.105(4) (b) It shall be unlawful for any person:
2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
The caselaw says that even if it is obvious, a JCC cannot view surveillance and determine the claimant is not injured. The Diejuste case says that is a medical determination, and it requires a doctor’s opinion on the surveillance and it requires an oral or written statement by the claimant to be false.
- Treatment and Restrictions- Sometimes the surveillance may not be enough to consider a misrep defense, but clearly shows the claimant is fairly capable and active. In these cases, it is still worth exploring sending the video to the doctor to see if they will address any changes to the treatment plan or work restrictions given the appearance on video.
Remember, a letter that the E/C (or their defense attorney) writes and sends to the doctor for them to sign is not admissible because it is hearsay, not created by the doctor. Even an addendum written by the doctor is not admissible on it’s own because it is not a “medical record”. The best tact is to ask the doctor to address the surveillance in the narrative notes for the next office visit.
- Lack of Credibility- Even if there are no oral or written statements the surveillance contradicts and/or the doctor’s opinion remains unchanged, surveillance may have value to show the claimant is not credible. For example, if the video shows the claimant much more active, and yet they say they are in too much pain to work, it may be enough to help the E/C prevail on a TPD denial.
If you are ever unsure about how or when to use surveillance, please feel to reach out to any of the attorneys in our firm and we will be glad to talk you through the process.
Morgan Indek | Managing Partner