Bill May Put Stop to Surveillance in Workers' Comp Cases
The Colorado legislature is currently considering a bill that would place serious limits on the ability of insurance companies and employers to conduct video surveillance of injured workers.

May 24, 2010 /24-7PressRelease/ -- Bill May Put Stop to Surveillance in Workers' Comp Cases

The Colorado legislature is currently considering a bill that would place serious limits on the ability of insurance companies and employers to conduct video surveillance of workers who have submitted workers' compensation claims.

If passed, House Bill 10-1012 would not allow insurers or employers to introduce video surveillance of injured workers during administrative hearings for workers' comp claims unless they can prove that they had a reasonable basis to suspect the worker had committed fraud prior to conducting the surveillance.

Moreover, the administrative law judge also would have to be satisfied that the surveillance was not intrusive, intimidating or harassing before admitting the material into evidence.

Additional provisions of HB 10-1012 also would require:
-Insurers and employers to destroy all material collected during the surveillance within five years, unless it was part of an ongoing fraud claim investigation
-The person conducting the surveillance to be truthful about for whom they are conducting the surveillance if asked by the injured worker

Previous versions of the bill would have given injured workers greater rights, including the right to request an expedited hearing to learn why they were being investigated.

A provision requiring administrative law judges to issue an injunction against employers and insurers who could not demonstrate a reasonable basis for conducting the surveillance also was removed from the bill. Additionally, a provision assessing a $1000 fine per day for violations was removed from the House compromise bill.

The surveillance bill is just one of seven measures before the Colorado General Assembly this term aimed at making workers' compensation insurance providers and specifically the state-created Pinnacol Assurance more responsible to the state and public for how they handle injured workers' claims.

The state legislature began investigating Pinnacol Assurance last year after the company boasted huge surpluses. During the investigations, the legislature discovered some questionable claims practices by the company, including its surveillance practices.

Proponents Argue Surveillance is Intrusive, Threatening

Those supporting HB 10-1012 argue that the surveillance methods used by Pinnacol and other workers' comp insurers in Colorado are overly invasive and amount to nothing more than spying. Several workers who had been subjected to surveillance testified before the House that the surveillance made them feel threatened and even humiliated. One worker said that he had been followed to his father's funeral by a private investigator.

Proponents of limiting the rights of insurers to videotape injured workers also claim that the evidence is unreliable and does not reduce workers' comp fraud. They point out that the videotapes can be easily altered to make it appear that a person is overstating his or her injury. Physicians also have complained about the reliability of the tapes and have said that such tapes should not replace a doctor's actual, physical assessment of a patient's condition.

Lastly, supporters of the surveillance limits argue that the bill places the lowest standard of proof available on insurance companies; as long as insurers have even an ounce of suspicion that a worker has made a fraudulent claim, they are free to conduct their surveillance. At the same time, placing this limit on the insurers will protect injured workers from unreasonable intrusion into their private lives.

Strong Opposition from Pinnacol Assurance

Not surprisingly, Pinnacol Assurance has come out strongly against the bill. The state's largest insurer argues that the bill will increase its operational costs and make it more difficult for it to fully investigate claims. Like others in opposition to the bill, Pinnacol argues that surveillance is a tried and true method of separating false claims from legitimate ones.

The insurer also argues that if the bill passes, it will result in increased workers' comp premiums for Colorado employers and may result in job losses and fewer employment opportunities for workers.

In 2008, Pinnacol spent more than $4.7 million on fraud surveillance.

Conclusion

Currently, HB 10-1012 is awaiting a vote from the Senate Judiciary Committee. Some members of the Committee requested clarification of what is meant by "reasonable belief" before the bill was put to vote.

For more information on pursuing a workers' comp claim, contact an experienced attorney.

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