Ramirez v. Briegan – Private Investigators in Workers’ Comp

If you have been injured at work and file for workers’ compensation benefits, know there is a good chance employer’s insurance company has hired a private investigator to follow you.lens

That’s right: You have to steel yourself for the possibility you may be watched – and this is totally legal. It’s justified by companies who say they just want to make sure the worker is telling the truth about the extent of his or her injuries.

Of course, this idea that workers’ compensation fraud is rampant is a myth. National studies have shown repeatedly that only about 1 to 2 percent of all workers’ compensation cases are fraudulent. It probably seems like it’s much higher than that because media is complicit in helping insurance companies blow these cases out of proportion to justify these tactics.

Here’s the problem: Of course, companies have a valid interest in detecting fraudsters. But this gives those who “have nothing to hide” a false sense of security about these practices. There is the belief that if you’re not lying, you won’t run into any issues.

Some of the issues that have been identified with private investigators include:

  • Hours of video recordings edited to 10 minutes of activity that make the worker appear much more active than they are;
  • They are legally allowed to film you from public property;
  • Private investigators have no interest in fair or honest reporting. The goal is to dig up as much damaging information as possible, ultimately hoping to influence your doctor against you.

A recent North Carolina Court of Appeals case involved a workers’ compensation claimant who was followed by a private investigator. In Ramirez v. Briegan Construction Services, Inc., ¬†plaintiff was a carpenter and general laborer for employer when he was injured in May 2012, three months on-the-job. Two co-workers dropped their end of a heavy light tower, forcing plaintiff to bear the entire weight of several hundred pounds.

He saw a doctor, who put him on restrictions of no more than 10 lbs lifting, no twisting or repetitive bending. Months later, the pain wasn’t getting better, and he was referred to a surgeon. He told the surgeon he was having significant difficulty with daily activities. Surgeon recommended epidural injections.

Employer insurer accepted liability for temporary total disability, and began paying him 66 1/3 percent of his average weekly wage.

However, plaintiff reported his pain was getting worse. He told the doctor he was unable to work, his current level of function was 0 percent, his pain was 8 out of 10 and he’d had no improvement with the steroid injections.

Soon after, insurer hired a private investigator to document plaintiffs activities. He filmed him at a local grocery store – bending at the waist, pushing a cart, loading numerous gallons of milk and other objects into the cart, loading the groceries into his vehicle, unloading the groceries and taking them into a family-owned store.

Plaintiff subsequently told his doctor his condition worsened. His doctor recommended surgery and ordered he be off work until then.

However, doctor was presented with the video and, based on the discrepancy, changed his medical opinion. He indicated he did not require surgery and he would not approve further work restrictions.

Plaintiff, without prior authorization from insurer or commission, sought a second medical opinion, who determined surgery was medically necessary to lessen the period of disability. Doctor stated he should be allowed to work light duty. Although he hadn’t seen the video, he was aware it changed plaintiff’s first doctor’s opinion.

Insurer requested a hearing, arguing plaintiff was not disabled, as he claimed.

At the hearing, deputy commissioner noted that because plaintiff hadn’t sought authorization for the second opinion, commission was free to give it less weight or even disregard it.

Still, the commissioner did consider it and determined plaintiff was disabled, this was causally related to his work injury and defendant was ordered to cover the cost of surgery and pay temporary total disability. Commissioner also granted plaintiff’s request at that time for a change of treating physician.

Defense appealed, and the full commission reversed, giving greater weight to the first doctor, because he’d been treating the patient since the injury and the second doctor hadn’t seen the video. Full commission ordered plaintiff to repay any overages of disability payments, and denied plaintiff motion to reconsider.

The appeals court accepted review, and affirmed the full commission’s finding, ruling it was not made in error.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:

Ramirez v. Briegan Construction Services, Inc., Feb. 16, 2016, North Carolina Court of Appeals

More Blog Entries:

Carolina Roofers at High Risk of Fall-Related Injuries, Feb. 21, 2016, Charlotte Workers’ Compensation Lawyer Blog

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