What’s Allowed in Workers’ Compensation Investigations?

If you suffer a work-related accident and are injured, you can submit a claim for workers’ compensation and you will be provided with a set of benefits, including medical care and a portion of your wages. At least, that’s how it works in theory; real-life workers’ compensation claims can become quite complex, and often require claimants to fight the system for an extended period of time just to receive the benefits to which they are entitled. One major roadblock in the workers’ compensation claims process is the workers’ compensation investigation, which can result in a denial of your claim. If your workers’ compensation claim is under investigation, you should consider contacting a Long Island workers’ comp lawyer who can advise you on the best path forward. 

When Workers’ Compensation May Launch an Investigation 

When you file a claim with your employer’s workers’ compensation insurance company, the company will want to do its due diligence to ensure that your claim is valid before paying it out. The workers’ compensation program is limited strictly to accidents and injuries that are work-related; hence, establishing whether your accident was truly work-related will be one of the insurance company’s primary goals. While some accidents and injuries are clearly work-related, others fall into gray areas that often require further investigation (e.g., getting into a car accident while running an errand for your boss on your commute to work). 

Some other common situations when workers’ compensation insurance companies may launch investigations include: 

• Large claims: Investigations are more likely when your claim is large, as large claims mean larger losses for insurance companies 
• History of claims: Having a history of filing workers’ compensation claims — even if they were denied — can cause insurance companies to conclude that your accident may be the result of a preexisting condition 
• Suspected fraud: Any aspect of your workers’ compensation claim that suggests fraudulent activity — even if there is a rational explanation for it — is almost guaranteed to trigger an investigation

Scenarios that Indicate Fraud to Insurance Companies 

Fraud in the workers’ compensation system is rare. Frequently, allegations of fraud boil down to honest mistakes when applying for workers’ compensation benefits or simply memory lapses that create the appearance of inconsistency. However, that does not prevent workers’ compensation insurance companies from launching investigations whenever anything seems “off” about a particular claim.

Some common red flags workers’ compensation insurance companies use to justify investigations include: 

• Inconsistent statements about the events of the accident
• The claim was filed after a negative performance review 
• The claim was filed after a request for time off was denied
• There are no witnesses to the accident
• The claimant refuses a certain medical treatment
• The claimant delays reporting the claim 
• The claimant has had recent financial difficulties
• The claimant has a preexisting condition that is similar to the injury
• The claimant engages in a hobby that could cause a similar injury 

None of these scenarios necessarily prove that a claim is fraudulent, but they can nonetheless increase the chances of a workers’ compensation investigation. If any of the above scenarios apply to your claim, please consider speaking to a workman’s comp lawyer. 

What Workers’ Compensation Investigators Look For

When a workers’ compensation insurance company launches an investigation, they typically hire a private investigator who has experience working with these types of cases. The investigation will utilize a number of common investigative techniques, including interviewing the claimant, interviewing witnesses, interviewing the claimant’s medical team, reviewing accident reports and medical records, reviewing company surveillance footage (if available), establishing exactly when and where the accident occurred, inspecting the scene of the accident, reviewing the circumstances surrounding the accident, reviewing the claimant’s employment history, assessing the employer’s safety protocols, and establishing whether the claimant is still working, among many others. 

What Investigators Can Do 

Workers’ compensation investigators generally tailor their investigations to the issue that triggered it. For example, if a claimant has a history of making workers’ compensation claims, the investigator likely would focus his or her efforts on digging through the claimant’s medical history to check for preexisting conditions. If the investigator suspected fraud, he or she likely would focus more on reviewing video surveillance and interviewing witnesses than poring over the claimant’s medical history. However, there are limits to what workers’ compensation investigators can do. 

Workers’ comp private investigator tactics that generally are allowable include:

Following the Claimant Around

Being followed can be distressing, especially if you think (or know) the person following you is a workers’ compensation investigator. Unfortunately, following people around in public spaces is generally not unlawful. Public spaces for this purpose include, but are not limited to, public streets and sidewalks, parking lots, grocery stores and shopping malls, and public parks.

Taking Photographs and Videos of the Claimant

Photos and videos are among the most powerful forms of evidence for workers’ compensation investigators. And, just as with following you around, taking photos and videos in public spaces generally is allowed. Unfortunately, investigators often operate at odd hours and like to take photos and videos in places you wouldn’t expect — such as in a restaurant or while you’re out on an evening walk. Keep in mind, however, that investigators may take photos and videos only in public spaces. They may not take photos or videos through windows into your home or in bathrooms, or medical facilities.

Online Surveillance

A claimant’s online activities — including social media posts, discussion board posts and comments, and reviews of products purchased online — are a valuable mine of information for investigators. Such posts can also be easily misinterpreted. For example, an investigator could construe a photograph of a claimant engaging in physical activity as being incongruent with what they stated in their claim. The general rule of social media in workers’ compensation claims is to keep a low profile (up to and including abstaining from it during the pendency of your claim) and to set all of your social media accounts to private.

Indirect Contact

Indirect contact generally refers to contacting individuals in your personal network, including friends, family, and coworkers. This type of contact can be particularly damaging for claimants because such individuals may not know the full scope of the claimant’s situation and reveal information to an investigator that could damage their claim. You can reduce the danger of that occurring by keeping your closest friends, family members, and coworkers in the loop about what’s going on with your work injury.

Direct Contact

Direct content occurs when an investigator makes contact with the claimant he or she is investigating. In these situations, it’s not uncommon for the investigator to use an alias or otherwise conceal their identity, such as by posing in disguise or using an alias on the phone. Claimants can avoid inadvertently disclosing harmful information to investigators by revealing as little about themselves as possible to strangers.

What Investigators Can’t Do

Workers’ comp private investigator tactics that are not allowed, and therefore illegal, include: 

Trespassing on Private Property

Workers’ compensation investigators may not trespass on private property — especially the claimant’s property — to obtain evidence. Evidence collection must be done only in public spaces.

Wiretapping the Claimant’s Phone

While investigators may pose as someone else (e.g., a pest exterminator) when calling the claimant, they may not wiretap the claimant’s phone.

Tracking the Claimant’s Vehicle

While following claimants around in public — including on public roadways — is lawful, placing a tracking device on a claimant’s car is not lawful.

Hacking the Claimant’s Email

Unauthorized access to email or other private online accounts (i.e., “hacking”) is illegal under both state and federal law. As such, investigators are prohibited from engaging in it, and doing so can result in severe consequences.

Impersonating Public Officials

As we’ve established, workers’ compensation investigators are allowed to pose as different people. However, they are not allowed to impersonate police officers or other public officials. They are also prohibited from wearing or displaying badges, shields, or other insignia that could give the impression that they are public officials.

For more information about unlawful workers’ comp private investigator tactics, please speak to an experienced attorney. To report an incident of suspected workers’ compensation investigator misconduct, you may contact the New York State Offices of the Inspector General.

If your workers’ compensation claim is under investigation and you suspect that your investigator is engaged in illegal surveillance activities, please contact a job accident lawyer. 

What to Do if Your Claim Is under Investigation

The most important advice for claimants who are under investigation is, to be honest. This includes telling the investigator the truth, but also refraining from omitting key information, or “lying by omission.” Dishonesty during the workers’ compensation claims process can seriously compromise your claim, particularly if your claim makes it to the hearing and appeal stages. Workers’ compensation law judges do not look favorably at dishonest claimants. Below are a few more strategies for making the investigation as painless as possible: 

• Respond to the investigator promptly when he or she requests information
• Collect all the documents you can that can help prove that your injury was work-related
• Follow your medical treatment plan 
• Keep lines of communication open with your employer 
• Keep it professional — you don’t have to be friendly with your investigator, but you should at least maintain a professional and courteous demeanor 

Get Help from Turley, Redmond & Rosasco

Being told that your workers’ compensation claim is being investigated can be a nerve-wracking prospect. To minimize the risk of the investigation sinking your claim, please contact a Long Island workers comp lawyer at Turley, Redmond & Rosasco by using our online form or by calling us at 631-582-3700 (Ronkonkoma).

Frequently Asked Questions

How Long Does a Workers’ Comp Investigation Take?

One of the most common questions our attorneys receive is, “How long does a workers’ comp investigation take?” While the New York State Workers’ Compensation Board aims to resolve claims in a timely manner, there is no set timeline for completing workers’ compensation investigations. Generally, the length of the investigation will vary according to the complexity of the claim. For more detailed information about how long your claim is likely to take, please contact an experienced attorney.

Are All Workers’ Compensation Cases Investigated?

If you file a workers’ compensation claim, your employer’s workers’ compensation insurer will do its due diligence in investigating your claim. So, yes, all claims are investigated. The extent of the investigation varies from claim to claim. Workers’ compensation companies typically hire private investigators if they suspect fraud in a claimant’s claim or inconsistencies in their story. For example, a workers’ compensation insurer might use a private investigator if they think that the claimant’s injury is not as severe as they say or that they are engaging in secondary employment while receiving benefits.

What’s an Example of Fraud in a Workers’ Compensation Claim?

While not all workers’ compensation claims are subject to all workers’ comp private investigator tactics, certain issues in your claim can increase your odds of an investigation. Such issues include:

• You’ve made inconsistent statements about your accident or injuries
• You have a history of making workers’ compensation claims
• There were no witnesses or documentary evidence of the accident
• You filed your claim after an adverse employment decision (e.g., termination, demotion, denied promotion, etc.)
• You are difficult to contact or evasive in your answers to questions
• You waited until the last minute to file your claim

It’s worth noting that none of these issues necessarily is proof of fraud or even that you did anything wrong. But workers’ compensation insurance companies want to pay out as little as possible, so they may use any red flag in your claim as justification to pursue an investigation.