Every injury, no matter how seemingly insignificant, should be reported to your supervisor, the medical department at your company or shop, or some other person in authority. Most employers have a system of filing written reports so as to document accidents or injuries. However, if your workplace does not have such a system, you should insist that whomever you report the matter to write it down and provide you with a copy. You should also make note of any witnesses.

You are well advised to have professional advice as early as possible so that you are fully aware of your rights at every stage of the proceedings. This is particularly important in view of ongoing and continuing changes in the law. You absolutely cannot rely on the insurance company to give you accurate advice as to your rights under the Workers' Compensation Act. It is important to know that attorneys' fees are strictly regulated by the law and that under no circumstances is an attorney allowed to charge a client directly for his or her services in a workers' compensation case. In most instances, all attorney fees charged by lawyers for representing employees are paid by the insurance company, either according to a schedule defined by the law, or as a percentage of a negotiated lump sum settlement. In some limited cases, a portion of the attorney's fee could be deducted from an amount of benefits awarded by an administrative judge.

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TRANSCRIPT

PSRB LAWCAST | Workers’ Comp Surveillance

Host:

Welcome to the PSRB Lawcast from the offices of Pellegrini, Seely, Ryan and Blakesley. I'm your host Adam Wright and each episode we bring you information about the various aspects of personal injury law and we understand that approaching a law firm to help you can often be intimidating, which is why this podcast is designed to make personal injury law just a bit easier to understand and to help you navigate the process with greater comfort.

Remember every case is different and in order for us to provide you with accurate information and advice relevant to your specific circumstances, it's important to set up an appointment with one of our attorneys to meet in person. The information presented today is general information purposes only.

Today we're going to be discussing a critical element of the personal injury claim process, violence, and our guest attorney today to help break it down for us is Charlie Casartello. The firm's managing partner since 1990, Attorney Casartello has committed his professional life to representing injured workers. Charlie has concentrated his practice in personal injury litigation, workers' compensation and social security law, and helping people in labor unions throughout Massachusetts. Charlie's been recognized for his incredible work in issues of workers' health and safety and has been awarded the prestigious William Pinchon Award given to individuals whose lives and achievements typify the ideals of promoting citizenship and the building of better communities in Western Massachusetts. Charlie has also received the Massachusetts Bar Association Community Service Award and was recently inducted in the College of Workers' Compensation Attorneys. A skilled negotiator dedicated to serving his clients by focusing on their individual needs, he is known as a thorough, aggressive, and responsible advocate and we so appreciate him taking some time out of his busy day to talk about this important issue. Hey Charlie.

[00:02:10.064] Attorney Charles Casartello:

Hi Adam. How are you?

[00:02:12.460] Host:

Very well, thanks. Good. In this new connected world, privacy and intrusive technology are things that a lot of folks are concerned with and in the area of personal injury claims, unfortunately that becomes part of the process and that is surveillance. It's a big part of going through the claim process and indeed, Big Brother can be watching and probably is, or at least your insurance company can be watching you. So, when somebody claims a workers' compensation disability and maintains that they can't work, what will the insurance company do to try to disprove that claim and how do they use surveillance?

[00:02:56.504] Attorney Charles Casartello:

Surveillance is part of the overall concept of investigation and any claimant can be sure that the insurance company is going to undertake an investigation and that can involve a number of different elements. Surveillance is one, Independent medical examination is another, for example.

[00:03:16.534] Attorney Charles Casartello:

Surveillance has been going on for many years in my experience. Surveillance is typically done by a private investigator hired by an insurance company to do an activity check. To make sure you are injured. To make sure a person is as disabled or limited as they claim. Certainly, if an injured worker is working when they are receiving temporary total incapacity benefits, that's a huge problem. It's not simply damaging for a claim. It can be the basis for an allegation of fraud. And that's rare.

What the insurance company is most often looking for is a claimant engaging in physical activity that's inconsistent with their claim of disability. So, for example, if a claimant has limitations of no lifting more than five pounds as ordered by their doctor and that claimant is videotaped at a gym with a barbell in excess of five pounds, it could be a problem. Anything like that, any inconsistency has to be explained. It could be an explanation. But oftentimes the picture is damaging, and no amount of context can make that understandable for a judge.

[00:04:41.939] Host:

Sure. So what likelihood an insurance company is going to send an investigator to do surveillance?

[00:04:47.305] Attorney Charles Casartello:

I've talked to insurance company lawyers on the other side of cases who say that if a claim goes on more than several weeks, there's about a hundred percent chance that some level of activity check is going to be done.

[00:05:02.492] Host:

Wow. So, what kind of things are they looking for? Obviously, they want to take a look at whether or not you're being truthful in what you say you can and cannot do. How do they do that? Can they come onto your property? Can they use photographic means? How do they go about collecting that information?

[00:05:22.084] Attorney Charles Casartello:

Let me give you kind of an overview from what I have seen when investigators produce information in a workers compensation case. The first thing that happens is the insurance company adjuster hires an investigator or the adjuster provides the name, address, other biographical information about the claimant.

The investigator then begins a search online these days of any kind of information about the claimant. An investigator might start with a check of public records, for example, real estate records, business records, anything that might show the name of the claimant. For example, if an investigator checks the Secretary of State's office and finds that the name of the claimant is associated with a company, a DBA, as an owner or an officer, that might lead to further information that the injured worker has business interests. And that curiosity on the part of the investigator can lead to then ferreting out of other information all designed to question whether the injured worker has the capability to do work.

[00:06:41.093] Host:

So, for example, if a worker is doing construction for a company and is injured on the job, but they discover that he has a separate contracting company on the side, they'll know potentially that he has the opportunity to work on the side at his business.

[00:06:59.925] Attorney Charles Casartello:

Or another example might be that a construction worker has a side gig as a disc jockey and the construction worker has some DBA status, doing business as status, has an actual company, but the disc jockey earns money because the disc jockey is unable to do his construction labor job because of an injury, but is able to do some weekend wedding or party gigs, that's a problem.

[00:07:38.164] Attorney Charles Casartello:

And if an investigator is able to get onto that information, it can be really troublesome. And sometimes that kind of thing happens because the injured worker is simply unaware that being involved in another activity could compromise their workers' compensation case because the injured worker thinks, well, it's clear, everybody concedes I can't do my construction labor job, so what is it that causes a problem if I'm able to spin records on a weekend for two hours? Right.

[00:08:09.923] Host:

And that could be anything from lifting speakers and that kind of thing to even just the money that they make going against the potential claim, correct?

[00:08:18.495] Attorney Charles Casartello:

That's right. It's the earning, not the physical activity alone that can create the problem. But a lot of surveillance is directed at the observation of a claimant. So, they start with a record check. They'll look at social media postings, whether it's Facebook, Instagram, or what have you, but then onto the individual's physical location. So, the investigator might find the place where the injured worker lives and then stake it out like on TV, just park a car and wait for the injured worker to appear. And then the investigator will observe the injured worker and videotape any kind of activity that appears to be inconsistent with a claim of incapacity to earn.

[00:09:10.892] Host:

So, if you're outside trimming your hedges, or if you're playing ball with your kid or something like that, run your roof, cleaning out your gutters.

[00:09:18.942] Attorney Charles Casartello:

If you're at Costco buying product and you carry a case of water out to the car, that injured worker could have that information disclosed to a judge if the insurance company thinks that activity is inconsistent with the claim of incapacity to earn or physical disability.

[00:09:39.360] Host:

In one of our other episodes, Mike Cardaropoli, one of our attorneys, had quoted Don Blakesley as saying, if you're going to go buy a six pack of beer, bring it in one can at a time.

[00:09:50.920] Host:

Now can they, obviously everybody's concerned about privacy, can they come onto your property? No, that's trespassing. Okay. So, they have to do it from a distance or if you're in a public place.

[00:10:00.927] Attorney Charles Casartello:

Correct. But with today's technology, you can only imagine the capability they have to videotape a person from a great distance. I have seen incredible feats of investigation that my client had no idea was happening because the person, because the investigator was so far away and had such technology that was able to document what was happening. Sometimes that's, it's useless. It's completely innocuous activity. But sometimes if a person, an injured worker is doing something, even on a day, on a good day for a brief moment that seems to someone to be inconsistent with a claim of disability, you could imagine that that's going to be blown up on a 27-inch television screen for a judge. And then that has to be explained.

[00:11:00.799] Host:

Are they allowed to if they're not on your property, let's say they're in the street?

[00:11:09.017] Attorney Charles Casartello:

I would say that if the person is in public, yes.

[00:11:15.801] Attorney Charles Casartello:

But if the person is not in public, no. So, there's no trespassing. And if for example, an injured worker is on the porch and visible from the street, a picture could be taken. It could be taken. If the person is in their kitchen and is not observable from the street, then I would say, no, that information cannot be obtained by the investigator.

[00:11:43.999] Host:

I guess my question is what if they are in their kitchen and visible from the street, right?

[00:12:02.950] Attorney Charles Casartello:

So you're in your kitchen, you're lifting a giant lobster pot and the investigator's in the street, not on your property, that counts as something he can- I would say yes, that person's in public view.

[00:11:43.999] Host:

What about recording conversation? Are they allowed to do that?

[00:12:02.950] Attorney Charles Casartello:

No, not without the permission of the person being recorded. In fact, it's a crime in Massachusetts for someone to surreptitiously record. Actually, it's called intercept communication by electronic or other means. So without, you can't tape somebody without their knowledge. You certainly can't record someone without their permission. So that would be off limits.

[00:12:30.439] Host:

So you don't have to worry about your phones being tapped or- No. Would they get records from your phone company that would put you in certain locations or is that something they would, they would probably need a court order for something like that? You would hope.

[00:12:42.994] Attorney Charles Casartello:

You would hope. You would hope since law enforcement, I think, has to do that, you would expect a private investigator to have to do that. I would expect that a telephone company would be very apprehensive to provide that kind of private information about- Some of that's personal information, yeah.

[00:12:59.076] Host:

Some of that's personal information, yeah.

[00:13:01.422] Attorney Charles Casartello:

However, if there's an order from a judge to disclose that information and it's properly sought by an insurance company or the other way around, frankly, in a contested liability case, could the employee try to secure that kind of information to document their presence at a location where an accident occurred? Yeah. And with a judicial order, that information may be able to be accessed.

[00:13:27.949] Host:

What about, so we've said that they can document your actions outside in your yard, in a store, somewhere public, and they follow you in their car. Yes. I think that would be probably something that, we see that on TV all the time, but that would be potentially difficult for people to get a handle on knowing that they're being followed.

[00:13:52.334] Attorney Charles Casartello:

It's creepy, but it's common. It's usual for the investigator to set up at the claimant's home and then to follow that claimant if the person departs in the car, goes to the bank, goes to the Dunkin' Donuts, goes to Costco, and then really frustrating for me as a parent is follows the person to their child's or their grandchild's game and stakes out that kind of location. The investigator is supposed to check in with the local police department before the investigation begins, so that law enforcement is aware that this person is lurking around. Because what I tell my clients to do when they become aware of the presence of investigators to call the cops, call the police, especially if they're in a situation where the injured worker is accompanied by children. Whether it's at home, in the yard, soccer game, what have you.

[00:14:56.948] Host:

Or I would think also if it's a woman and all of a sudden, now is this an investigator from the insurance company or is this a stalker? Is this some kind of creep? Right. I mean, that's got to be a very delicate situation and I got to think it could be potentially very scary for somebody.

[00:15:10.499] Attorney Charles Casartello:

It is.  The insurance company investigator is supposed to check in, they don't always, but the first thing that I tell my clients is do not confront the person, do not confront the investigator, call local law enforcement. And you have them, particularly if some activity has happened that really intimidates or threatens the injured worker, call law enforcement. You do not confront the other person for a variety of reasons, for your own safety, but also so that you're not accused of taking some action that could be a problem.

[00:15:47.505] Host:

And I think also knowing that this is going to happen, I mean, you said there's a hundred percent chance potentially that someone's going to follow you. That would make you at least more aware that this could potentially happen. If you're talking to your attorney, your attorney says, look, this is likely going to happen. Now at least you're aware of it. And so if you do notice somebody, as you said, call the cops, but you may not have to worry as much as you would if you didn't know this was going to happen. Right.

[00:16:16.615] Attorney Charles Casartello:

Yeah. So be forewarned, is forearmed. Sure. To be prepared and know that it's creepy, but it's part of the playbook. Just as an independent medical examination is part of the insurance company, the defense attorney's playbook. It's likely to happen. You just have to be prepared for it. You have to be able to conduct yourself appropriately and not create additional problems for yourself by acting inappropriately when dealing with these situations.

[00:16:48.154] Host:

Let's talk a little bit about social media. All of us have Facebook pages or maybe we're on Instagram or TikTok. I have to think that that is something that an investigator would look very closely at because people like to post what they're doing. And so is that, that's fair game, I would think.

[00:17:04.439] Attorney Charles Casartello:

It's a treasure trove of information for an investigator, depending upon how active a person is on social media. And again, context is really important. A person could have a picture of themselves holding a 35-pound striper that they caught in Nantucket Sound seven years ago. But if it's on the post as though it happened yesterday, it's a problem and it's got to be explained. On the other hand, if it's a 35-pound striper that was caught yesterday and the injured worker has limitations of no lifting more than five pounds, it's going to be a problem and it's self posted, it's self authenticated. So that kind of information isn't even investigated, it is self published. So it's a problem for people because again, context is really important. A person having a good day at the beach out of 364 crappy ones, if that's the day that the investigator is around, the information is going to be out of context and it's not going to be fully representative of what the injured worker's day to day life is really like.

[00:18:24.443] Host:

I always say self imposed hardship is no hardship at all. Now what about for someone who thinks they're being smarter than, right? And so they're going to put something on Facebook, but their Facebook account is quote private, or at least only available to their friends. How do investigators get around that? Can they get around that?

[00:18:43.394] Attorney Charles Casartello:

I don't know how they get around it, but I know they get around it.

[00:18:50.667] Attorney Charles Casartello:

It's a private, it's private. I don't either, but here it is. There's 90 pages of pictures from Facebook and now we've got to explain what all of that stuff means.

[00:19:03.441] Host:

Somebody once told me that never put anything online that you wouldn't expect to see in the front page of the Springfield paper.  And I think this is good advice regardless of whether or not you're under surveillance from an insurance company. Definitely. We're living in this incredibly open age of information. It's true. I mean, you have to be very judicious about what you put out there about yourself.

[00:19:32.449] Attorney Charles Casartello:

I have heard that about young people applying for jobs. That prospective employers do similar kinds of checking and kids with red solo cups on social media can create problems for themselves for prospective employers. I think that's going far, but it's an issue. And it's again, it's self-posted, self-authenticated information. It's not something that somebody dug up and had to kind of fashion in order to create a problem for a claimant.

[00:20:14.451] Host:

So I'm sure you've seen cases where the information presented by an investigator is pretty difficult to explain to a judge.

[00:20:26.432] Attorney Charles Casartello:

I have. I've had situations that my client has had to explain. Again, I use the same phrase over and over again, I apologize, but explain or give context and sometimes the judge understands, but sometimes the information is so vivid that there's no explanation that the judge is going to buy. On the other hand, I've had a surveillance product, videotape of people that I think is completely benign, that is harmless to the injured worker.  A person walking on a street is not going to be harmful to that person's case unless they've claimed that they cannot walk.

[00:21:31.182] Attorney Charles Casartello:

So the information detected by the investigator has to be contradictory to what the injured worker is saying about their capability to do physical stuff or other stuff for it to be really harmful to the case, in my view.

[00:21:47.905] Host:

So something like if, and I would think because rehab requires oftentimes someone to do some exercise or some mobility to try to strengthen the injury. And so context is everything.

[00:22:03.194] Attorney Charles Casartello:

And that's a perfect example. If a guy is over at LA Fitness and working out, that in and of itself doesn't mean that the person's not disabled. The person could be there under the direction of a doctor and doing the things that are necessary to recover.  On the other hand, if the guy's over there looking like Arnold Schwarzenegger, it's a different, that really dates me. That can be a real problem for that injured worker.

So even if a person is videotaped on their street, walking happily on a beautiful spring day, it doesn't mean that's reflective of seven days a week, 12 months a year, 365 days.

People have good days and bad days. Even people with debilitating, chronic pain have an occasional day where they feel like they've got to get out of the cabin. And if that's the day that the investigator is present and videotapes, or even if that's the day out of many days of surveillance that the detective chooses to videotape and then produce to the insurance company that information, it's not reflective of what that person's true capability to work and earn is. So that's the sort of a context that has to be explained. Now we'd all love to avoid having to give such explanations, but when that kind of thing happens, the judge is going to hear all sides of the story from the injured worker. The picture is not in and of itself harmful. It's the picture if it is inconsistent and not explainable. Not in context.

[00:24:12.338] Host:

Picture itself is not determinative. I mean, I think all of this goes to the bigger point of why it's so important not to go into a workers' compensation case alone. Why you need to have a qualified, experienced advocate by your side. There's just too much that can go wrong.

[00:24:32.065] Attorney Charles Casartello:

Well, and I think the topic of surveillance indicates to me so forcefully that workers' compensation is an adversarial system. It's a dispute system. The insurance company is not in the corner of the injured worker. And the idea that surveillance happens in almost every case where the disability lasts for longer than a month is indicative of the fact that the insurance company is not going to trust the injured worker and take the injured worker at their word. It's an adversarial system. And so an injured worker should be advised, should be fully aware of what happens in these kinds of cases, should be informed of what the realities are so that the injured worker can act accordingly.

[00:25:19.450] Host:

You know, we're talking about this in the context of injured workers and workers' compensation. Is this applicable to other forms of personal injury law? So for example, somebody's in a car accident.

[00:25:31.853] Host:

And says they can't move their neck and they're looking for compensation. Absolutely.

[00:25:36.342] Attorney Charles Casartello:

Absolutely. Yeah. Yes. And in any kind of a personal injury matter, surveillance is available to the insurance company or to the defense counsel who's representing the interests of the insurance company or a defendant. But in workers' compensation, it happens frequently. Yeah.

[00:25:57.807] Host:

Well, this is all fascinating information. And you're right, it's not a little creepy, but it's certainly something that people need to be aware of. Charlie Casartello from PSRB. If you want to contact Charlie, you can do so by calling our phone number, 800-75-5399. PSRBlaw.com is where you find us online. And you could even email him personally at ccascartello.pellegriniasealy.com. Thanks Charlie. You're welcome, man.

[00:26:25.448] Attorney Charles Casartello:

It was a pleasure.

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