Federal workers’ compensation appeal board (ECAB) evaluates Department of Labor inspectors’ surveillance videos

Posted on Jan 04, 2014

Surveillance of workers’ compensation claimants has been going on in private insurance for years.   The practice has been increasing dramatically in OWCP settings as well.

ECAB (the OWCP appeal board) has recently dealt with surveillance of claimants that took a much more active turn when the investigators took their edited video tape and approached a doctor directly to influence a case.  This case involved two instances of contact between the inspector general’s employees and the claimant’s doctors.  This contact is improper – OWCP is allowed to request medical records concerning a claimant but is not supposed to make direct contact with physicians or other medical care providers.   This contact included showing a physician extended videotape of a claimant.  This wasn’t ‘raw’ footage, but edited video that was evidently designed to show claimant in the worst possible light.  On the second visit by inspectors, the doctor completed a report indicating the restrictions he thought the claimant was capable of following.   It’s clear that the video was a very important part of the doctor’s impressions in making his report.

While doctor reports are important for determining whether a claimant can work and what degree of disability he or she has, there is definitely supposed to be a hands-off policy between government employees and doctors, according to the decision.   The judges who wrote the ECAB decision also indicated that they were not comfortable with the idea of ‘secret evidence’ that was kept away from the claimant on purpose, and where the claimant was never given the opportunity to respond, explain the video evidence, or provide his or her own evidence in opposition.  There is even discussion in the decision that the doctor may have felt pressure to cooperate with these ‘inspectors’ who appeared to be checking into ‘fraudulent’ activities.

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