Document, Document, Document

Although the word "privacy" is never used in the United States Constitution, there are limits to the government’s ability to intrude into people’s right to privacy. The Fourth Amendment protects people from unreasonable searches and seizures by the government. Some state constitutions include provisions safeguarding individual privacy¹. Notably, California Civil Code Section 1708.8, sometimes called the anti-paparazzi statute, creates significant liability for violating the right to privacy.

The California statute includes exemptions for law enforcement, and for surveillance for claim insurance investigation. These exemptions require documented “articulable suspicion” of certain activities, including “…suspected illegal activity, violation of administrative rule, a fraudulent insurance claim, or other suspected fraudulent conduct or activity involving a violation of law or pattern of business practices adversely affecting the public health or safety.”

The intent of articulable suspicion is to prevent ordering surveillance in the hope that surveillance will “turn something up,” or for other inappropriate reasons. It is typically easy for claim managers to document articulable suspicion. Workers’ compensation cases often include red flags; claim managers should focus on these objective and reasonable grounds in their documentation:

• Unwitnessed injury
• Prior injuries
• Late reporting
• Missed medical appointments
• Suspicion of exaggeration
• Suspicion of malingering
• Tip from a witness, co-worker, or the treating provider
• Information obtained in a background / social media search 
• Tip that claimant is working while on TTD
• Subjective complaints not supported by objective findings  
• Claim filed post-termination 
• Reported injury involving multiple body parts
• Additional injuries added to claim 
• Claim filed following disciplinary action, demotion, reduction in hours or position change

After the California statute was enacted, it became common for the claimant’s attorney to ask for the articulable suspicion whenever surveillance was submitted into evidence. Documenting the cause of reasonable suspicion is a best practice that helps ensure your valuable surveillance data will be admissible as evidence.

 ¹For example, Alaska, California, Florida, Montana, Washington.

DALENE BARTHOLOMEW, CFE, CIFI

Dalene Bartholomew is a Certified Insurance Fraud Investigator, Certified Fraud Examiner, Vice President of VRC Investigations.  She enjoys building long-term strategic partnerships with insurance carriers, employers and TPAs and providing innovative insurance fraud solutions and fraud abatement programs resulting in hundreds of insurance fraud prosecutions nationwide.  A forward-thinking senior executive with a 20-year record of success combatting all lines of insurance fraud, she was awarded “Fraud Fighter of the Year” by the Anti-Fraud Alliance.  A recognized speaker, author, insurance fraud specialist, expert witness, fraud advisory board member, and wine enthusiast.  DaleneB@VRCinvestigations.com