Surveillance is accepted practice in workers’ comp cases. It can lead to a cutoff of benefits, but things are not always as they appear.This is Part 3 of an ongoing series, “Waiting In Pain,” about Hawaii’s workers’ compensation system.
This is Part 3 of an ongoing series, “Waiting In Pain,” about Hawaii’s workers’ compensation system.
Ken Weir claimed he had seriously injured his neck, back, shoulder and knee when he stepped into two open drains at work and twisted awkwardly. So how was he able to help his uncle carry a washing machine?
That’s what his workers’ comp insurer wanted to know after it paid private investigators to follow him and take video on 18 days over more than a year.
The investigators taped Weir as he swept a driveway, cut grass with a weed whacker, bundled branches and put them into a truck bed, and tossed a wooden pallet into a bin at the dump. Then cameras caught him hoisting one end of that washing machine.
A state labor hearing officer rendered a verdict: the videos showed Weir had committed fraud. His workers’ comp benefits were cut off and he was fined $10,000.
But as sometimes happens when insurance investigators follow injured workers, things were not quite as they appeared.
Weir appealed to the three-member Labor and Industrial Relations Appeals Board. He said that the object he was lifting with his uncle was not a washing machine, but the shell of one, weighing no more than 25 or 30 pounds. His lawyer brought one like it to the hearing room as evidence, even demanding, in jest, that it be kept as part of the record.
The board sided with Weir. The insurer had not shown that he had done anything that went beyond the restrictions imposed by his doctors. He did not have to pay a fine. His benefits were restored.
Surveillance is an accepted tactic in the workers’ comp world, especially in long-running, complicated cases. Insurers say it controls losses to fraud.
But for innocent workers, surveillance can not only cut off needed benefits but also add humiliation and paranoia to the pain and lost income of a workplace injury.
“They blew it all up and tried to assassinate me. It was ridiculous,” Weir said. The detectives trailed him when he was suffering from severe depression, he said, and his uncle was urging him to get out of the house.
Emelinda Yarte, a psychiatric technician, was punched in the face and slammed against a wall by a patient at the Hawaii State Hospital. Her insurer hired a detective to follow her on her daily walks, recommended by her doctor, and driving to a medical appointment.
“I was just traumatized,” Yarte said. “They made me more sick, I tell you … And they’re supposed to be helping me get well.”
A Mixed Record
Sometimes, the cameras pick up blatant fakery. Private investigators filmed a carpenter who claimed a low back injury as he carried a kayak over his head, paddled the kayak, hoisted a cooler and worked on his car.
In the tape, he showed a fluidity and range of motion at odds with the way he acted in medical exams and physical therapy, when he closed his eyes and leaned on some equipment because of his supposed pain.
The labor board found he had committed fraud, cut off his benefits and ordered him to pay a fine of $8,000.
But the state’s workers’ comp files also include cases in which surveillance did not show conclusive proof of fraud or even enough evidence to counter the worker’s claim.
Investigators videotaped one worker walking and pitching a baseball after he claimed he injured his ankle stepping off a concrete slab. The insurer relied on the opinions of doctors who watched the tape, including two paid by the company, to argue that his normal gait showed he was not injured.
But the labor board disagreed, siding instead with his treating doctors. The tape showed the worker walking straight forward. It was when he twisted or turned, his doctors said, that he felt pain.
In another case, a doctor said surveillance video of an injured worker at the beach suggested, with other evidence, that he was fabricating his symptoms. But another doctor disagreed, saying he had encouraged the worker to go to the beach and exercise.
Innocent workers who suddenly noticed a van parked across the street or following them down say they were scared.
Keep Your Hula Off Facebook
Even workers who figure out they’re not being stalked must deal with the indignity of knowing that their insurer suspects them of faking it.
As in Weir’s case, the tapes may look bad even if there’s an explanation. Benefits may be cut off, forcing the injured worker to pay a lawyer to appeal.
Some workers told Civil Beat that the surveillance, or even the knowledge that it might happen, discouraged them from taking part in normal life, including activities recommended by their doctors to help them get well.
Michael Makekau, whose lungs were damaged by working in a moldy weigh station at the Hilo landfill, was never followed, at least to his knowledge. But at his wedding, he was invited onto the stage to briefly take part in a hula. His lawyer’s office called a few days later to congratulate him but also to warn him that the clips on social media might be used against him.
“I said, ‘I don’t think I did anything to hamper my case. I’m just trying to lead a normal life’,” he recalls.
Surveillance sometimes doesn’t turn up much of anything. But for the workers who are targeted, it can seem anything but harmless.
Yarte, the psychiatric technician assaulted at the state hospital, went on walks to relax and stretch her muscles during the periods she was waiting for the insurer to renew her physical therapy. Her doctors had recommended walks as a way to ward off depression.
One day, she noticed a white pickup on the street outside her Kaneohe house. It followed her on her walk.
She noticed the same white pickup while she was driving to a doctor’s appointment. She said it screeched to a halt next to her at a red light, but then waited for her to go first when the light turned green.
Later, she got a copy of the surveillance report, including three pictures of her on her walk.
“The claimant displayed no signs of pain or restriction and was not observed utilizing any visible means of orthopedic brace or support,” the report stated. It’s unclear why the investigator considered that significant, considering her primary injury was to her jaw.
“She was observed retrieving an umbrella from the vehicle and leaving on foot to walk the neighborhood,” the report continued. “The claimant can be described as a: Filipino female attired in a beige cap, black long-sleeved shirt, black shorts and shoes.”
The report found no evidence of fraud. (The investigator, explaining why he lost her, did allege Yarte ran a red light, which she denies.)
But Yarte, who had become fearful of strangers after the assault and was diagnosed with post-traumatic stress disorder, said it left her shaken.
“Why would they hire someone to follow me? That means they don’t believe that I’m in pain, that I’m hurt,” she said. “That’s not right.”
Surveillance may be particularly upsetting to those with psychological conditions such as PTSD. An Australian investigative news program in 2016 reported that insurance companies were tailing former police officers with PTSD, sometimes worsening their mental suffering. One insurer said that it would no longer use surveillance in claims involving mental illness.
Spying on injured workers is generally legal in the U.S., as long as detectives don’t peek through windows, adopt a fake persona like a utility worker or induce the worker to do something incriminating.
Swimming Raised Suspicions
Still, injured workers can feel violated.
Calvin Chin vividly recalls first noticing he was being followed as he drove to a Jack In The Box for a sandwich and a coffee more than a decade ago. Chin, a painter, had injured his shoulder, knee and face when he fell about 8 feet off a ladder onto his right side and then was struck by the ladder.
One day, he led his tail to a police station and took down his license number. The police, Chin said, identified the detective as a retired police officer.
The investigator shot videos of him swimming in the ocean. Then, when Chin was diving for squid, he noticed a rubber boat following him. His doctor had told him it would be OK to hunt for squid in water no deeper than about 5 feet. Chin said the person in the boat was dropping string attached to a weight into the water, presumably to test the depth.
Chin suspects the detective filmed him in the restroom of a Kaneohe Bay park changing his clothes.
A doctor paid by the insurer reviewed the surveillance tape – rather closely, it seems, judging from observations in his report such as, “The water appears to be choppy with waves anywhere from 1-3 feet.”
Chin, he wrote, “appears to be constantly moving with the use of fins.”
But while it showed “a reasonably functioning back,” the video did not shake the insurance doctor’s earlier assessment that Chin’s shoulder and knee conditions were caused by the work accident.
The video’s failure to sway the insurance doctor is not surprising, considering he had noted in an earlier report that Chin swam a couple of times a week after taking a painkiller. Also, the doctor recommended around the time of the surveillance that Chin should continue “some form of cardiovascular exercises such as swimming.”
Chin recalls the sensation of being put under a microscope. “You have this phobia, like there’s somebody over your shoulder,” he said. “They kind of sneak up on you.”
Raj Kumar believes he was watched as retribution for complaining about his workers’ comp case to then-Gov. Neil Abercrombie.
Kumar injured his neck and back in 2007 on the way to a meeting when his car was struck by a drunk driver, and again in 2012 when he threw out his back lifting boxes.
In early 2014, Kumar refused a request from an attorney representing his employer, the state of Hawaii, for a copy of the letter he had sent to Abercrombie a few months earlier.
At a hearing that April, Kumar recalls the lawyer asked surprising questions, such as his home address and work schedule. The next morning, he said, he noticed a man in hat and dark glasses, window half down, parked in his lot.
After he had been followed for two days, Kumar called the police. They questioned the man and found out he had been assigned to surveil Kumar.
Kumar said he was so distressed he couldn’t sleep well for a few nights. He wondered why the insurer was watching him when he had not gotten any workers’ comp benefits for two years because of a billing dispute.
“I felt this was an abuse of power by the workers’ comp attorney,” he said.
Surveillance Used Sparingly?
HEMIC, the state’s largest workers’ comp carrier, told Civil Beat it has an obligation to stop fraud by all parties in workers’ comp cases, including not just workers but employers, vendors and doctors.
Fraud drives up costs and hurts those who play by the rules, chief executive officer Marty Welch wrote in a prepared statement.
The insurer uses surveillance in about 2 percent of claims, he said, and only when it has cause to suspect fraud, sometimes because of tips to its hotline from a claimant’s co-workers or even a spouse. It’s unknown how often surveillance is used throughout the industry.
Attorney Douglas Moore, who represents injured workers, takes a much different view. Insurers, he said, use surveillance, in tandem with medical exams by their hand-picked doctors, to harass injured workers and try to get them to drop their claims.
“They’d rather spend the money than fairly compensate the injured worker,” Moore said.
The assumption underlying an insurer’s use of surveillance is that workers are trying to bilk the system.
But the prevalence of fraud is a matter of debate. On the high end, some in the industry argue that 10 percent of claims are fraudulent, a number that certainly would warrant insurer efforts to crack down with methods such as surveillance.
Others say the 10 percent estimate is ludicrously high.
“Anybody who’s tried to look at worker fraud in a serious and even-handed way would say at most 1 to 2 percent and probably way less than that,” said Les Boden, a professor of environmental health at Boston University’s School of Public Health.
In fact, no scientific studies have been done on fraud rates in workers’ comp, said J. Paul Leigh, professor of health economics at the University of California Davis. Government researchers pegged fraud in unemployment insurance at a little more than 2 percent, which includes deceit by employers and government employees as well as the supposedly unemployed workers. Leigh believes the workers’ comp rate is probably similar.
Some studies have documented the cost of a different kind of workers’ comp fraud – by employers – through methods such as misclassifying workers. Others have shown that insurers pay injured workers less than they should get.
Yet, “we always think of the worker as the bad guy,” Leigh said.
He believes the insurance industry fosters this idea by publicizing outrageous fraud cases. He recalls seeing a billboard near his home of a worker behind bars for a fraudulent claim.
“Insurance companies have been very successful in affecting the public imagination,” he said.
Fraud, too, can cover a wide range of behavior. Staging a fake injury is a far cry from, say, staying home an extra week when you might have worked through some discomfort.
It’s up to lawmakers and courts to draw the line. In Hawaii, the state Supreme Court set a standard of proof for fraud in a 2006 decision that centered on surveillance.
Sione Tauese, was working as a housekeeper at a hotel when he fell off a desk and chair he had been using as a ladder to clean the ceiling, injuring his back.
Several months later, investigators videotaped Tauese, along with several other men, skinning and cutting the carcass of a cow. They recorded Tauese bending over, cutting the meat, putting it into plastics bags and moving the bags around the bed of a pickup for about an hour.
The Supreme Court found that lower panels had used the wrong standard – a preponderance of evidence – in finding Tauese had committed fraud. Instead, the court said, the evidence should have met the more difficult standard of “clear and convincing” in light of the fact that a finding of fraud would damage a person’s reputation.
The court returned the case to the labor appeals board, which found that Tauese had committed fraud even under the tougher standard.
That’s a rare event. The labor department said it confirmed fraud in only 17 cases from 2012 to 2016, out of a total approaching 100,000.
Yet surveillance continues to play a part in many workers’ comp cases. Even short of proving fraud, insurers may use videotape to successfully block a worker’s claim.
In one such case, an investigator videotaped a utility worker who had claimed a back injury as he sat and cut his toenails, bent to roll up a mat, played catch and got on a basketball court to demonstrate hook shots and layups.
An electrician with an injured shoulder unwittingly sabotaged his case by working on his two power boats for two and a half hours, even lifting the large motor housing overhead, while a video camera recorded.
For a housekeeper with an injured ankle, the reckoning came when an investigator filmed her standing and walking at a parade for four and a half hours. The video also showed her putting on a brace just before going to a doctor’s office and taking it off shortly after she left.
In another case, surveillance tape showed a moving company employee who claimed a finger injury using his hand and arm normally. He testified it was a case of mistaken identity – the person in the video was a neighbor. The labor board didn’t buy it.
These cases saved insurers unjustified costs. In general, they have little to fear from engaging in legal spying. But there is some risk.
Weir, who was accused of fraud for lifting the washing machine frame, sued the insurance company after he was exonerated. The complaint said the insurer lacked clear and convincing evidence and had slandered him.
His lawyer, Stan Masui, said the insurer had failed to note that, in the video, the “washing machine” tipped over even though Weir had barely touched it. At one point, he can be seen resting it on his hip as he opens a gate.
“They improperly charged him with fraud when they should have examined their videotape carefully,” Masui said.
The case settled out of court in 2016 for an undisclosed amount.