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Surveillance: Further Harm to Injured Workers

Posted by: Amy Easton-Fitzpatrick
February 26, 2010
Topic: Workers' Compensation

As many of you may know, Pinnacol Assurance, a quasi-state entity that provides workers' compensation insurance to 57 percent of Colorado businesses and roughly 1.5 million workers in the state, reported a surplus of over $600 million last year. Bob Mook, Pinnacol Assurance Takes Stand on Legislation, Denver Bus. J., Nov. 12, 2009. A $600 million surplus, reported in a time of economic crisis, is an amazing fete. It makes one wonder how Pinnacol is generating such profit. It turns out, according to the Colorado legislature's Interim Committee to Study Issues Related to Pinnacol, that Pinnacol has been:

•· Paying bonuses to claims adjusters for dismissing injured workers' claims;

•· Pitting teams of claims adjusters against one another in competition to claim these bonuses, further creating incentives to dismiss claims;

•· Paying bonuses to physicians who meet certain performance standards, including net income targets; and

•· Overcompensating company executives.

Killian & Davis, P.C., Lawmakers Seek Big Changes from Pinnacol Assurance, Nov. 23, 2009 http://www.killianlaw.com/CM/Custom/Law-makers-Seek-Big-Changes.asp>.

Injured workers who had filed workers' compensation claims with Pinnacol also testified before the Interim Commission that the company had spied on them and used other underhanded methods to ensure they were not filing false claims. Id. Pinnacol spent $4.7 million last year to spy on 2,500 workers, and only 11 were found to have actually committed fraud. Peter Marcus, Lawmakers: Limit Spying on Workers, Denver Daily News, Jan. 26, 2010.

As a result of the Interim Committee's findings, lawmakers are currently pushing for legislation that would limit the ability of workers' compensation providers from spying on employees who have made a claim. Id. The bill would prohibit an insurer or employer from spying on workers who have submitted claims unless the insurer or employer has a "reasonable basis" to suspect the employee has committed fraud. Id. Employees would be allowed to request an expedited hearing before an administrative law judge to challenge the surveillance. Id. Insurers and employers would also be required to destroy all material collected unless the materials are "reasonably necessary" to resolve an ongoing claim of fraud. Id. Violations would result in a $1,000 per day penalty. Id.

Surveillance conducted on injured workers is very intimidating and traumatizing to the individuals surveilled. It feels like an invasion of privacy. Private investigators who perform the video surveillance can be very creative in their methods of surveillance. They can videotape injured workers in their backyards by videotaping over a fence. If an injured worker happens to have their curtains open, the private investigator can videotape whatever they see through the windows. I once had a client who worked as a waitress who was videotaped by a private investigator, posing as a restaurant customer, while my client performed her waitressing duties and served the private investigator food. Most of the surveillance private investigators obtain is mundane-it shows a person getting in and out of their car or going in and out of buildings. However, insurance carriers are more than happy to try to argue that such activities indicate a person is more physically capable of doing activities than what their doctor-imposed restrictions imply.

An injured worker should not have to hide in their homes and should not have to constantly be looking over their shoulder just because they had the misfortune of sustaining an injury. As a consequence, limits on when an insurance carrier performs video surveillance should be imposed. As Colorado Representative Sal Pace, D-Pueblo, stated, "The insurance companies are abusing [surveillance], . . . and it's our responsibility as legislators to stand up for average Coloradans . . . ." Id.

Attachments:
HB10-1012Surveillance.pdf


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