The Ethics of Surveillance in Workers’ Comp: What’s Too Much?

This article explores the ethical boundaries of surveillance in Workers’ Compensation, with a focus on how you as the employer or insurer can approach due diligence without bad faith. We’ll dive into the legal framework, actionable insights, and ethical concerns, and offer real-world examples and best practices.

Surveillance in Workers’ Comp

Surveillance in a workers’ compensation context typically involves:

Video surveillance: Capturing footage of claimants outside their home, in public areas, or at work to observe daily activities.

Social media monitoring: Reviewing a claimant’s online presence for evidence contradicting their reported condition.

Background investigations: Verifying employment status, criminal records, or previous injury claims.

Medical canvassing: Checking with local medical providers to uncover undocumented treatment history.

These methods are often used when red flags suggest the possibility of fraud or exaggeration. However, it’s not always fraud that triggers surveillance—it might be inconsistencies, lack of follow-through on treatment, or an alarming claims history

The Legal Framework: What’s Allowed?

Surveillance in workers’ compensation claims is legal within limits. Key legal considerations include:

Expectation of privacy: Surveillance is only legal in places where the claimant has no reasonable expectation of privacy (e.g., public streets, parks).

Licensing and compliance: Investigators must be licensed and comply with state-specific regulations regarding privacy, consent, and recording.

Scope: Courts have found that prolonged or invasive surveillance especially if unrelated to the claim can be seen as harassment.

In a 2021 California case, footage was thrown out because the investigator followed the claimant into a semi-private location. The judge ruled it as a breach of privacy despite being part of a public-facing business. The surveillance, although compelling, was ruled inadmissible due to the invasion of privacy in a space where the claimant could not have reasonably expected to be filmed without consent. The defense lost a key piece of their evidence, and the claimant ultimately prevailed in the case.

Always ask: Does the subject have a reasonable expectation of privacy in this setting?

Ethical Boundaries

Even when legal, surveillance can cross ethical boundaries. Suppose a claimant with a back injury is caught carrying groceries into their home. Without context, how heavy were the bags? Was it a one-time event? This footage may not accurately reflect their disability level. Using such footage to deny benefits could be both unethical and hurt the insurer.

Ethical surveillance balances the need to confirm facts with the rights and dignity of the individual.

Missteps in surveillance can result in:

• Legal liability: Privacy violations can trigger lawsuits or lead to the exclusion of evidence.
• Reputational damage: Employers and carriers can face PR backlash if surveillance is perceived as harassment.
• Claim disruption: Overzealous surveillance can sour the relationship with the claimant, complicating the return-to-work process.
• False positives: Misinterpretation of video or social media content can lead to wrong conclusions and unfair claim decisions.

In a 2022 case, a Texas employer was sued after surveillance footage showed a claimant playing catch with their child. The claimant argued they were under doctor’s orders to remain active and that the activity was therapeutic. The court agreed, and the employer had to settle for punitive damages.

Best Practices for Ethical Surveillance

To use surveillance ethically and effectively, claims professionals should:

• Have a justifiable reason: Only initiate surveillance when there are red flags—missed appointments, inconsistent reports, or tips from co-workers.
• Stick to the scope: Monitor only those activities directly related to the claimed injuries. Don’t follow claimants into private spaces or film unrelated behaviors.
• Use licensed professionals: Ensure investigators have updated credentials and follow state laws and industry standards.
• Document everything: Keep a clear record of why surveillance was initiated, who authorized it, what was observed, and how it supports the claim resolution.
• Collaboration: Collaborate with medical experts or nurse case managers to interpret whether an observed action is medically meaningful.
• Disclose when appropriate: If footage will be used as evidence, ensure proper disclosure procedures are followed so it can be admitted in court if needed.

When Surveillance Adds Value (and When It Doesn’t)

When it helps:

• Catching clear fraud (a claimant roofing houses while claiming a shoulder injury)
• Validating work capacity for modified return-to-work programs
• Providing leverage in settlement negotiations

When it hurts:

• Surveillance is inconclusive or irrelevant to injury
• The claimant is pursuing treatment in good faith
• There’s no medical or behavioral red flag prompting surveillance

Surveillance showing a claimant lifting heavy boxes may seem incriminating. But context matters. If their doctor approved a lifting limit of 20 lbs, and the boxes were light then the ‘evidence’ becomes irrelevant.

Professional surveillance should be evidence-based, not instinct-based. When done right, surveillance can uncover fraud, strengthen defenses, and reduce claim costs. Done wrong, it can erode trust and result in serious legal repercussions. Click here to learn more about DIY surveillance and all it entails.

Looking for more info? Check out our sources below:

Sanders v. American Broadcasting Cos., 20 Cal. 4th 907 (1999) – a case where California’s Supreme Court held that employees have a reasonable expectation of privacy (even in semi-public workplaces!)