Today’s post comes from guest author Charlie Domer from The Domer Law Firm. It is particularly relevant now, at a time when we are seeing a spike in the number of cases where surveillance video is being used to bring claims to a halt here in Washington State.

A dozen attorneys in Montana representing injured workers made headlines petitioning their Supreme Court to stop State fraud investigators sharing surveillance videos with doctors of worker’s compensation claimants. About 14,000 Montana residents are covered by the State Fund and the Fund’s Investigative Unit conducts video surveillance on about 500 claimants each year and shows the videos to claimants’ treating physicians. This practice raises questions about physician-patient privilege and patient privacy.

In Wisconsin and most other States, the physician-patient privilege is waived by an employee who reports a work-related injury. The waiver only extends, however, to any condition or complaint reasonably related to the work injury. Considerable debate sometimes arises over which treatment records are reasonably related to a claim. A broken toe, for example, is not likely relevant to an asthma condition but a prior Hepatitis-C claim may be. Employers and insurers may attempt to obtain records from a medical provider without a release, and practitioners must provide reports to the employer, insurer, employee, or Worker’s Comp Division within a reasonable time after written request.

The Fund’s Investigative Unit conducts video surveillance on about 500 claimants each year and shows the videos to claimants’ treating physicians… In Wisconsin and most other States, the physician-patient privilege is waived by an employee who reports a work-related injury. The waiver only extends, however, to any condition or complaint reasonably related to the work injury. 

Insurance carriers and employers also defend or deny worker’s compensation claims through surreptitiously obtained videos. The videos usually involve applicant’s activities in excess of professed or prescribed limitations. At a hearing, defense cross-examination routinely pins down the applicant’s inability to perform activities later shown on film. The most effective use of claimant activity videos is film that contradicts the applicant’s testimony or professed complaints of symptoms to the treating physician. In Wisconsin insurers may supply the surreptitiously obtained video to an Independent Medical Examiner who, based upon the video, will often opine the injury is not work-related or that the restrictions stemming from the alleged injury are not valid. Surveillance video is useful in Loss of Earning Capacity claims especially when doctors disagree as to restrictions. Where the video is benign and the activities are not inconsistent with the employee’s complaints, most judges and review commissions will not find them valuable. Areas of surveillance susceptibility include:

• Sports Leagues (baseball, volleyball, bowling, darts).
• Car Repair / Maintenance (engine work, tires).
• Home Repair / Maintenance (roofing, drywall, garage).
• Medical Appointments (medical records will provide specific time and place for medical appointment, making the applicant an easy target).
• Hobbies (crocheting, gardening, wreath-making, woodworking).
• Shopping /groceries (specific weight limits, bags of pet food, etc).
• Church Activities, including school volunteer activities (decorating, event set-up).
• Children / Grandchildren Activities (playground, schools).
• Holiday Occasions (Christmas boxes, July 4th picnics, Memorial or Labor Day outings).

Since formal discovery does not exist in Wisconsin and many other States, no pre-hearing notice of the existence of surveillance tapes is required by the carrier except if provided to the Independent Medical Examiner.

In summary, a worker filing an injury claim waives the physician-patient privilege and most privacy issues. Surveillance videos portraying activities inconsistent with worker complaints can be damaging to a worker’s claim.