You’ve all seen the television version of some getting caught “red-handed”. You know the ones, the injured person goes to a doctor’s office and pulls out all the stops: using a cane, limping, grimacing, etc. In the next scene, they hop out of the car at the mall with ease, walk for hours, and carry out a giant purchase. They are confronted in the parking lot and most attempt to flee. In real life, video surveillance is rarely this exciting. The use of video surveillance is not uncommon in New Jersey workers’ compensation and raises several issues that injured workers should be made aware: criminal and civil penalties, your right to privacy, and how the video is revealed and used at trial.
So long as you are following your doctor’s instructions and you are not caught on video doing something you said you cannot do, you do not need to worry. However, if you are caught “red-handed”, you will be subject to criminal and civil penalties, N.J.S.A. 34:15-57.4. If you are found guilty, it is a Fourth Degree. Civilly, you are subject to repayment of benefits obtained fraudulently and termination of all future benefits.
If you find yourself being watched or followed, you do have the right to protect your privacy. If the individual is on private property, the property owner can ask the investigator to leave or call the police to have them removed. If the investigator approaches you, you do not have to answer their questions, if they continue to harass you, you may call the police to intervene.
While it can be upsetting to an injured worker who finds themselves being taped, most video surveillance is never seen in court. In fact, in most cases, the video helps to prove your disability. Often times the insurance company does not ever reveal they have video. The court rules do not require that they give advance warning when they hire an investigator. The rules only requirement is that if they intend to present the video at trial, it’s existence must be revealed prior to the start of trial. Even then, the injured worker and his/her attorney are not entitled to view it until have the worker has testified.
Remember, the investigator can only see what you do outside your home. Most injuries do not render you bedridden or housebound. Therefore, we expect that you will attempt to go about your normal life. A lot of video is pieced together to make it look as if you worked in the garden for hours, when really you did a few minutes at a time over a period of days. The investigator is subject to cross examination and this fact does not go unnoticed by Judges and attorneys. So long as your testimony is consistent that you can do a certain amount, then rest or if you do too much, you pay for it later, you do not need to worry about video surveillance.
If you think you are being watched, you probably are. You should contact your attorney immediately for advice and guidance.