In my work as an independent medical assessor, and occasionally as a treater, I am asked to view video surveillance of compensation claimants. This occurred again recently and caused me to reflect on the whole business of covert surveillance.
There was the usual report from another doctor who had viewed the surveillance saying that the worker moved easily and therefore had capacity beyond what they claimed with the almost inevitable conclusion that the worker was fit for unrestricted work.
On careful analysis of the surveillance the worker was, in fact, showing evidence that there was limitation of their activity and, after I met the worker to discuss the surveillance and some apparent inconsistencies, it was clear to me that, apart from a little miscommunication, there was no evidence of fraud or misrepresentation.
I get an uncomfortable feeling when I am asked to look at video surveillance. Should I be peering at injured workers who are oblivious to the fact that they have been watched by a private detective filming their everyday activities? Is it right that their spouses and children get filmed as well? Is it right to film an injured worker dropping off their children at school and in the process other children are filmed ?
By hey! The worker might be committing fraud by claiming that they are worse than they really are, or heaven forbid, there might actually be nothing wrong with them at all! Surveillance must be OK – it can’t hurt anyone and provides an objective means of detecting fraud, doesn’t it? How else can the guardians of our system determine if a claim is without merit?
Surveillance of injured workers seems to be an accepted part of the workers compensation landscape. Even lawyers with a focus on an individual’s rights seem to barely bat an eyelid about surveillance. It just happens and almost routinely at that. Surveillance is viewed and discussed behind closed doors by insurers and their advisers and occasionally sees the light of day in the courtroom.
There is no doubt in my mind that surveillance is widely used as a tool to try to determine an injured worker’s honesty. Many, if not most, of the injured workers I am asked to assess as an independent doctor have been under surveillance at some point in their claim.
I haven’t been able to find any scientific literature about the risks and benefits of surveillance, so I have to rely on my own experience and opinions of others. Perhaps the insurance industry has research evidence about its utility, but even some seasoned claims staff tell me that surveillance rarely provides definite proof of fraud.
I have however seen significant harm caused by surveillance, even the possibility that it might occur can have an effect.
I have cared for injured workers through my practice who have developed significant psychological illnesses once they became aware that they were under surveillance. I have seen the benefits of months of intensive psychology treatment undone by ill-conceived surveillance. More importantly perhaps, many injured workers restrict their activities for fear of being filmed. This can impinge on physical recovery (and Vitamin D levels) when they remain indoors in the safety of their homes and avoid the resumption of activity that is an integral part of their rehabilitation.
Yes, sometimes surveillance does reveal that an injured worker is exaggerating the effects of their injury and very occasionally that there is gross misrepresentation, but the common scenario is that surveillance shows people trying to get on with lives as best they can, despite their injury.
Surveillance can tell you what a claimant is doing for short periods if the identity of the person is clear, but it cannot reliably indicate the presence of pain and does not show the after effects of a particular activity. It cannot tell you how much medication they have taken for pain. It certainly is not an accurate tool to measure capacity for work. Brief periods of surveillance are useless for determining capacity for sustained activity.
A short sequence that shows a claimant lifting a laundry basket or their 3-year-old child does not equate to capacity to work in a laundry or child care centre. A film does not usually indicate the factors that lead to an activity. Did they pick up their child because the child was hurt?
Film can be subject to manipulation by editing. Many workers have expressed to me concern that the videos of them are not complete and some important sequences have been deleted, but it is impossible to confirm that this has occurred as there are other explanations why film might appear edited. Some workers believe that surveillance is undertaken to intimidate, rather than any other purpose.
When a worker puts in a claim for compensation it is not explained to them that, as a part of the claims management process, they might be under surveillance with the consequence that their families, friends and work colleagues might be filmed as well. Is the worker aware that when they are booked to see an independent doctor, their claims officer might ask a private detective to film their arrival and departure from the appointment? There are issues of trust here. Once a worker is aware that they are not trusted it can change the dynamic of their interaction with a whole range of claims and rehabilitation processes as well as the mind-set of the claimant. A decision to place a worker under surveillance is clearly not free of risk, or cost for that matter.
In my view surveillance is an expensive and blunt instrument, but does it have a place in our compensation systems?
The answer is probably yes, but only where there is evidence of frank fraud, an understanding of its limitations and controls over its use. Those who make judgements about surveillance need training to understand the limitations and those who do the filming need strictly enforced codes of conduct.
Decisions to put a claimant under surveillance should not be made by a claims officer on the basis of a whim, unsubstantiated gossip or as a ‘fishing expedition’ to look for evidence to terminate a long-term claim. Perhaps an independent member of the judiciary should be involved in the decision to ensure the risks and benefits are properly considered.