Workers Compensation

Can the Workers' Comp Insurance Company Spy on Me?

By Sachi Barreiro, Attorney, University of San Francisco School of Law
When you file a workers' comp claim, it's common—and usually legal—for a private investigator to follow you in public or online. Learn how to keep this spying from hurting your case.

Question

I filed a workers’ compensation claim several weeks ago, after I hurt my back at work. I’m currently off work and receiving temporary disability benefits. While I was out running some errands the other day, I noticed a suspicious man sitting in a parked car. I think he had a camera, but I can’t be sure. Is it possible that the workers’ comp insurance company hired a private detective to spy on me? Is that legal?

Answer

Yes, this happens more often than you might think. Insurance companies frequently hire private investigators to follow workers who might be faking or exaggerating their injuries (also known as “malingering” in legal lingo). The hope is that the investigator will catch you doing something that contradicts what you've claimed about your injuries and your physical limitations. This can give the insurance company ammunition in its attempt to reduce or cut off your workers' comp benefits.

In general, there is no law that prohibits insurance companies from hiring private investigators to follow injured workers. As long as the investigator is documenting activities that you’re doing in public, it’s generally fair game. For example, investigators routinely follow workers while they run errands, pick up their kids, and go to doctors’ appointments. Depending on state law, it may even be legal to take photos of you inside your house, as long as you're visible through a window from public property. But investigators shouldn't do anything illegal, like trespassing or pretending to be a police officer.

Just in case a private investigator is following you, remember some simple rules:

  • Never lie or exaggerate about your symptoms or the activities that you can or can’t do. When talking to the insurance company, make statements that clearly reflect your abilities in a specific way. For example, instead of saying “I can’t bend over,” you might say, “It really hurts when I bend over, so I limit that activity as much as possible.” Or instead of saying "My back always hurts," be specific about when you experience back pain.
  • Be mindful of what you’re doing in public (including on your front lawn) and how it could be taken out of context. For example, if you're off work because you can’t lift heavy objects, it won’t look good if you’re caught on camera carrying large boxes into your house. The boxes may have been light, or you may have overdone it and needed several days of bed rest, but none of that will be captured by a photograph or brief video clip.
  • Also, be careful about what you post online. Check the privacy settings on your social media accounts to make sure only your friends can see your posts. But regardless of those settings, think twice before posting anything about physical activities or any pictures that could be taken out of context.

You should be fine as long as you're telling the truth and your activities are consistent with what you and your doctor have said about your medical condition. But it would be a good idea to speak with a lawyer if the insurance company is trying to discredit you—especially if has (or might have) evidence from a private investigator that could hurt your case. An experienced workers' comp attorney can help put that evidence in context, gather other evidence to counter the insurer's claims, and fight to protect your right to benefits.

It's worth noting that in our survey of readers who filed workers' comp claims, we learned that injured workers who hired a lawyer ended up with more money in benefits, on average, than those who went through the process on their own.

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