“Private eyes They’re watching you They see your every move”
Hall & Oates
When Insurance Companies adjust an Injured Worker’s claim, there are times in which they may employ a Private Investigator (PI.) The purpose of the PI is to investigate various issues relating to the claim.
This article will discuss the nature of Private Investigators with respect to workers’ compensation cases, the new technologies which have changed the nature and scope of their abilities to investigate, and caselaw which addresses the issue of the boundaries that exist with respect to Private Investigators within the Workers’ Compensation System.
What Are the Issues that an Insurance Company May Want a Private Investigator to Address?
There are many issues/questions that arise on workers’ compensation claims such as:
Whether the Injured Worker actually worked for the Company?
Whether they were in fact injured at work?
Whether they have had injuries or medical conditions in the past?
Whether they have had past or concurrent employment?
Whether they truly are impacted by their injury?
Whether they have a history of Personal Injury Claims, Lawsuits and Workers’ Compensation Claims?
What Has Changed with Respect to Private Investigation Services?
Private Investigators and their abilities to conduct investigations have improved as a result of ongoing advances in technology. These advances have made certain investigations more cost effective to perform. As a result, Insurance Companies may be more willing to employ them. These new technologies have allowed Private Investigators to obtain greater knowledge and information about the Injured Worker. Also, they have allowed for greater surveillance.
These new technologies include the improved quality and nature of the cameras, drones, and the employment of the internet for the purposes of obtaining data.
Who Are Private investigators (PI)?
Within the State of California, a Private Investigator is a licensed position. Per the State of California, the PI duties are described as an individual that, among other things “ (1) investigates crimes, (2) investigates the identity, business, occupation, character, etc., of a person, (3) investigates the location of lost or stolen property, (4) investigates the cause of fires, losses, accidents, damage or injury, or (5) secures evidence for use in court. Private investigators may protect persons only if such services are incidental to an investigation; they may not protect property. An individual, partnership, or corporation licensed as a private investigator may employ a qualified manager to manage the business on a day-to-day basis. To be eligible to apply for licensure as a private investigator/qualified manager, you must meet the following requirements:”
PIs must be meet certain qualifications. This requires that they are 18 year or older, they have undergone a criminal history back background check through the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI.) Further they must have “at least three years (2,000 hours each year, totaling 6,000 hours) of compensated experience in investigative work; or have a law degree or completed a four-year course in police science plus two years (4,000 hours) of experience; or have an associate degree in police science, criminal law, or justice and 2 ½ years (5,000 hours) of experience. Also, they must pass an examination covering laws and regulations, terminology, civil and criminal liability, evidence handling, undercover investigations and surveillance.
In sum, PIs are educated, experienced and intelligent individuals. In fact, a number of them are former law enforcement personnel. Therefore, even before they were PIs, they had extensive experience in conducting investigations.
What Type of Investigations Do PIs Do on Workers’ Compensation Cases?
PIs engage in surveillance, generating background reports, obtaining witnesses statements, conducting accident site investigation, conducting social media investigation, and canvassing medical history.
What is Surveillance?
Surveillance can involve the use of the camera to record an Injured Worker’s activity. Technology has improved surveillance activities by having “high definition” (HD) camera quality and the ability to use “unmanned” cameras. In essence, they can leave a camera at a location without having to have an investigator present to operate it. For example, they can leave a camera in an empty car across the street from the Injured Worker’s residence. This capability significantly reduces the investigation cost as well as allowing for a 24/7 ability to conduct surveillance.
What are Background Reports?
Background Reports can be a comprehensive report which provides the Injured Worker’s information and history by utilizing online bases, public records information, such as courthouse records and real property records, as well as other information.
What Are Witness Statements?
PIs can go to the workplace or other locations or import to the claim and take recorded statements of potential witnesses. Also, they can reduce them to written statements and have them signed by the individuals. Further, they can do interviews of witnesses telephonically. Witness Statements can cover a variety of issues. This can include facts concerning how the accident occurred and facts concerning other employment.
What Are Accident Site Investigations?
Accident Site investigations can include a variety of items. It can include the investigator’s impressions concerning whether the accident happened as well as the credibility of the witnesses. It can include pictures of the site. It can include statements from percipient witnesses. Further, it is possible that video can be attached to such a report.
What Are Social Media Investigations?
Social Media Investigations can involve a report of the Injured Worker’s presence online. This can include past and present activity. This investigation can involve various social networks such as Facebook, LinkedIn, and Instagram.
It should be noted that in the United States, there are over 200 million users of Social Media. Many Injured Workers participate in Social Media. This Social Media most likely documents the Injured Worker’s pre and post-injury activities and hobbies.
What is Medical Canvassing?
Medical Canvassing is an investigation which locates the Injured Worker’s widespread medical and treatment history. This would include identifying the various medical facilities such as emergency rooms, health care clinics, hospitals, and pharmacies where the Injured Worker was a patient or customer.
How Does the Court View the Private Investigation of Injured Workers?
There is a California Supreme Court decision which addressed the consequences of an investigation gone awry. Unruh vs. Truck Ins. Exch. (1972) 7 Cal. 3d 616.
In the matter, the Injured Worker had had four back surgeries and her condition deteriorated causing her extreme pain and requiring treatment. The Insurance Company in the case placed her under surveillance and the investigator “befriended the plaintiff and did in the City of Long Beach and elsewhere misrepresent his capacity [ and his intentions toward the plaintiff.” On specified dates, for the purpose of obtaining motion pictures of plaintiff, defendants “did entice and cause the plaintiff to conduct herself in a manner beyond her usual and normal physical capabilities . . . .”
In particular defendants enticed plaintiff to visit Disneyland with defendant Baker, in the unseen presence of defendant Marino, where Baker caused plaintiff to cross a rope bridge and a barrel bridge and “did wilfully and intentionally violently shake and disturb said bridges and the physical person of the plaintiff, and the defendants did at said place cause the plaintiff to engage in other activities so as to aggravate and injure the plaintiff.” These events were filmed by defendant Marino.”
With respect to it, the Injured Worker “did not know at any time that she was under surveillance, that defendant Baker had misrepresented his capacity, or that defendant Marino was photographing her activities. At the instance and invitation of Baker, plaintiff had been caused “to become emotionally interested” in him.”
The Court noted that “[a] negligent investigation of an employee’s claim may well be an aberration in the carrier’s normal activities, but when it does have a harmful effect on the employee, we see no reason why it cannot be treated by the Board as a compensable aggravation of the original injury, if the evidence so warrants.”
In sum, there is a line that a Private Investigator can cross into what is unacceptable conduct. The question is “where is the line?” With the present technology, is it a drone taking video while flying over the Injured Worker’s residence? Is it leaving non-operator cameras viewing an Injured Worker’s residence on a 24/7 basis for an excessive period of time?
With respect to these issues, the boundaries will either be defined by the Courts or by the State of California by statute. The Unruh case involved deception and misrepresentation. Excessive or unusual surveillance may not rise to that level of misconduct. There needs to be some point defined as to when excessive surveillance becomes unreasonable and unacceptable. The State of California has a constitutional provision for the “right to privacy.” The spirit of that “right” should be considered.
It should also be noted that an injury arising out of a negligent investigation can be tacked onto the Injured Worker’s original claim of injury. See Patrick vs. Marina City Club 2010 Cal. Wrk. Comp. P.D. Lexis 19 (Noteworthy Panel Decision.) Adjuster misconduct was found to have caused a heart injury for which the Injured Worker received compensation.
What If I Need Advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.