In a recent claim, we obtained surveillance of a claimant performing activities well outside of their doctor’s restrictions. From there, we obtained social media sweep-reports.
Of note, the carrier’s obligation to disclose surveillance materials applies not just before the carrier’s questioning of the claimant, but also prior to when the carrier prompts the WCLJ’s questioning of the claimant. See Matter of Moreilli v. Tops Mkts., 107 AD3d 1231 (3d 2013). See also Matter of Aeropostale, 2012 NY Wrk Comp G0410425, wherein the Board Panel held that the carrier does not need to disclose the evidence from social media before questioning the claimant.
At our hearing, awards were updated. However, the WCLJ did not confirm the work status during that period. Therefore, we had to prompt the Judge to ask the work-related questions before updating awards. Upon doing so, we had to disclose the surveillance to avoid preclusion. While our litigation strategy was to hold off on disclosure of the surveillance, we did not want to lose the opportunity to use the surveillance under a fraud claim.
Upon conclusion of the claim, we received a call from claimant’s counsel – advising that they were interested in a section 32 full and final agreement – as the claimant, fully admitted to activities that their attorney was not aware of.
From there, we used an evidence based MSA to finalize the medical portion of the claim under the full and final Section 32 agreement. We were able to reduce the indemnity portion of the claim based upon the surveillance and social media reports, prior to the claim moving forward with fraud.
Overall, it is important to remember when we must disclose surveillance (not social media). Once we disclosed the surveillance, without any specifics given to claimant/claimant’s counsel, they knelt to our request and we settled on a full and final agreement saving countless dollars on litigation of fraud. While LOMAD was ready to proceed and aggressively push the issue of fraud, once it was properly disclosed we were able to settle the claim in our favor. This was a great win for LOMAD’s client.
The use of surveillance and social media sweep has been increasingly useful. Here at LOMAD, once we take the deep dive and determine the need for surveillance and/or a social media sweep, the results carry the Day.