Hamilton, Westby, Antonowich & Anderson, L.L.C.
December 2, 1998
It is particularly important to get as much detail as possible from the claimant and to document the claimant's account as accurately as possible. By limiting the description of the accident to the two (2) lines provided on the form WC-1 (First Report of Injury), an employer is leaving the door open for a future exaggeration of the nature of the accident and the extent of the injury sustained. It is important to sit down (if possible) at arm's length with the claimant and go through the claimant's account of how the accident occurred. Whether meeting face-to-face or taking a recorded statement over the phone, it is important to discuss each of the following factors with the claimant as soon as is practical after the employer receives notice of the injury:
It is also important to identify the specific parts of the body that were injured in the accident. Often, a claimant will initially complain of leg pain, which later becomes back pain radiating into the leg, which later becomes shoulder pain shooting into the back and radiating into the leg with associated abdominal pain.
An employer should also obtain a detailed, separate written statement from the claimant. Georgia law provides that the First Report of Injury (Form WC-1) is inadmissible for any purpose. Conceivably, this means that the WC-1 would also be inadmissible even to impeach the claimant regarding his account of how the accident occurred. It is crucial that an employer investigating an accident not limit itself to the account of the accident that would be contained on the First Report of Injury. A separate detailed written statement is essential.
Once a statement has been taken from the claimant, it is important to confirm back to the claimant exactly what was reported regarding the origins of the alleged injury. If possible, it is an excellent idea to memorialize these discussions and ask the claimant to sign the statement and date it, specifically noting the date and time that the statement was taken. Subsequently, if the claimant tries to change his story, even though the WC-1 would be ineffective as an impeachment tool, the separate recorded statement would be admissible for this purpose.
It is important to ask the witnesses in an unbiased even manner exactly what occurred. The same details which are enumerated in the preceding section regarding specific questions to ask the claimant should also be asked of every witness who can be identified. If there is some question as to whether a co-worker may have witnessed the accident, it is always better to go to the witness and ask him or her exactly what was seen, as well as the content of any conversations that witness may have had with the claimant subsequent and prior to the accident. It is particularly important to obtain detailed information about the witness. An injured worker has one (1) year from the date of accident to file a claim for compensation with the State Board of Workers' Compensation. Often, a co-worker that provided a favorable statement contradicting the claimant's account of how the accident occurred may no longer be employed with the same employer if the claim is filed several months after the accident.
At the time of the initial investigation, it is important to identify the witnesses by name, social security number, date of birth, and address. It is also helpful to obtain information from the witnesses regarding a parent or relative that would be able to find them in the event they were no longer employed by the employer at the time litigation of the underlying claim occurs.
As with the claimant's statement, the witnesses' statement should, whenever possible, be taken at arm's length. The information given by the witness should be confirmed with the witness and then reduced to writing, signed and dated. Although it is an unscrupulous practice, I have personal experience where a witness has changed his story based on a promise of a portion of the recovered settlement or judgment proceeds being paid to that witness in order to solicit false testimony. If the witness' statement is taken after the accident and is signed and dated by that witness, such that the witness could be impeached with his other statement at a later date if the witness' story changes, this is an effective method of ensuring that the stories remain the same throughout the pendency of the litigation.
It is also important because testimony will change due to lapse of time. Certainly, a memory or account of a occurrence will not be as vivid one (1) year after the fact as it would be one (1) day after the fact. A written statement is an excellent tool to refresh a witness' recollection of the events during subsequent litigation.
By conducting a detailed investigation at the time of the accident, the employer improves its ability to recover its derivative subrogation claim when the plaintiff initiates an action against the responsible third party. While I certainly would not volunteer any written or recorded statements taken from the claimant or witnesses after the accident to a plaintiff's attorney seeking to initiate a suit against a responsible third party, these statements become important if the target defendant asserts a defense or attempts to defeat the claim on a factual basis which is inconsistent with the claimant or witness statements that were taken after the accident.
If the claimant is injured by a defective product or piece of equipment, it is essential that the defective product or equipment is preserved in the same condition it was in at the time of the accident. Often, a manufacturing defendant, when notified of an accident, will try to send a service technician to repair the machine, or will offer to pick the machine up and replace it with a "new" piece of identical equipment. There are many reasons why a manufacturing defendant would try to recover a defective product. Many of these factors revolve around producing a safer product or correcting any defect that may exist in other similar products. Although these may be honorable reasons for attempting to obtain possession of the defective product, a bi-product of the recovery of the product by the manufacturing defendant will be to prevent any type of testing or analysis that may demonstrate a defective condition which would support the claimant's/plaintiff's claim and resulting derivative recovery by the subrogated employer/insurer. Remember, whenever practical, always attempt to retain and preserve a product or piece of equipment which is involved in a work accident.
Currently, the law provides that if a claimant tests positive for drugs or alcohol or refuses to undergo a test for these substances within the time frames set forth in the statute, it is presumed that the accident occurred as a result of the use of drugs or alcohol and the burden is then shifted to the claimant to set forth affirmative proof which would show that the presence of drugs or alcohol within the claimant's body did not cause the accident.
As soon as an accident occurs, the employer should arrange for administration of a blood or urine sample to test for the presence of alcohol or drugs. Pay particular attention to the time frames set forth in the statute. The tests for alcohol must be conducted within three (3) hours of the time of the alleged accident. The test for marijuana or other controlled substances must be administered within eight (8) hours of the time of the accident.
It is a good idea to accompany the claimant to the doctor's office to ensure that the test is administered within these time frames. This also prevents a claimant from asserting (as has happened in cases in which I have been involved) that he was in so much pain following the accident that he stopped at the liquor store and drank a pint of bourbon before going onto the doctor's office. By accompanying the employee to the doctor's facility, this type of intervening intoxication defense can be prevented. If possible, there are mobile medical facilities that will come to the job site and administer a test for drugs or alcohol at a reasonable fee. The costs of these tests generally range from $125.00 to $250.00. If a test is positive and a claim is successfully defended on the basis of the employee's intoxication, the cost for this mobile test is clearly an excellent allocation of limited resources.
If the employee consents to giving a recorded statement, it is important that certain information be given during the preface to the recorded statement in order to prevent any allegations that the statement was involuntary or coerced during its subsequent use. It is particularly important to name and identify each party to the conversation; give the employer and job title of the person taking the statement; clearly set forth that the employee has voluntarily consented to giving the statement and knows it is being recorded; the date and time of the statement; the address where each party is physically located; and a brief statement as to the purpose of the taking of the statement (i.e., this statement is being taken in regard to an initial investigation of the claim of Joe Doe regarding an accident occurring at the Manufacturing Facility, Inc. on January 1, 1999).
In addition to asking each of the questions listed in the preceding section, it is important that the employee give his name, address, telephone number, social security number, a brief physical description of himself, a brief outline of any prior significant medical history, and whether he is under the influence of medication which would impair his ability to comprehend the questions and respond truthfully.
It is important that the individual conducting the interview or obtaining the statement ask questions in a short, clear and concise manner to avoid ambiguous responses. It is particularly important that the interviewer stay away from compound questions which ask for two (2) or three (3) items of information in a single question. Keep it simple and try to limit the scope of each question. It is also important that you make sure that you obtain an answer to the question asked, repeating the question until a direct response is given. If the claimant says uh-huh or un-huh, it is extremely difficult to use a recorded statement to impeach the claimant with that answer at a later date. It is very important that the interviewer make certain that a positive (yes) or negative (no) answer is given whenever practical.
The interviewer should also use a topical outline to conduct the interview. This is more effective than a written list of questions. Often, depending upon the circumstances giving rise to the accident, some questions will not be applicable. Rather than asking a questions simply because it is on the checklist, it is important to use the following topical checklist to formulate specific questions on a case by case basis:
It is important that the interviewer focus on listening to the employee in order to ask follow-up questions or expand on answers which detail prior injuries, medical conditions or medications that the employee is taking and for what purpose.
When obtaining a written statement or a recorded statement from a claimant or a witness, it is extremely important that the interviewer avoid indicating to the employee/witness how much investigation has been performed. By sharing information that has been obtained in the investigation with the claimant, the interviewer allows the claimant the opportunity to spontaneously change his story to match other data that may have been developed prior to the giving of the statement.
It is also important for the interviewer to avoid confronting the employee with the interviewer's suspicions regarding whether the claimant's statement is false, contradictory or inconsistent. If, during a recorded statement (or an arm's length interview to obtain a written statement), the interviewer tells the claimant that a portion of his story sounds "fishy," this will immediately alert the claimant that he needs to recant his prior account and substitute a more credible account. Rather than having an effective impeachment tool for subsequent litigation in defense of the claim, the interviewer has tipped his hand and has allowed the claimant to change his story and negate the effective use of that statement.
In any case, the facts may present themselves in such a fashion that an employer begins to question whether an employee is being honest regarding his or her physical limitations and perhaps whether that employee is working. When this occurs, employers commonly utilize the services of private investigators to conduct surveillance. Properly utilized, surveillance can prove to be extremely helpful in workers' compensation cases and in certain instances may bring the case to a quick resolution.
When considering obtaining the services of a private investigator, it is recommended that the investigators chosen must have a license in the state where the surveillance is going to occur and references should be checked. Typically, an Employer will be best suited deferring to the opinion of the claims handler or their attorney when selecting an investigator. In addition, if an investigator is given inaccurate information regarding the physical description of the injured worker or that worker's residence, then the investigation will almost assuredly not obtain positive results. Some initial work must be performed when assigning the case for investigation in that the investigators must be provided with an accurate description of the employee and with a current residence of the employee. In addition, if the employer is aware of any medical appointments or other appointments, the investigator should be placed on notice so that the injured worker may be "picked up" at those specific appointments to ensure they are watching the correct person.
While the cost of investigators varies, generally one investigator per an eight (8) hour day cost between $500.00 to $700.00. While surveillance is not inexpensive, assigning only one (1) day of surveillance, without some specific intent in mind, will likely not obtain beneficial results. Generally, performing only one (1) day of surveillance is relying too much on luck. Typically, two (2) to three (3) days of surveillance are required in order to obtain a realistic idea of what activities an injured worker may be performing.
It is important to note that if the services of an investigator are utilized, there is no guarantee that information will be obtained which could be used to defend or defeat a fraudulent claim. Often, claimant's attorney's will tell their clients that it is a common tactic for an employer/insurer to use the services of a private investigator. If a hearing is coming up on the calendar, claimant's attorneys often tell their clients to stay indoors and not to leave the house to avoid being captured on videotape.
Georgia law provides that there is no actionable invasion of privacy if a private investigator records a claimant while he is in plain view with the unassisted eye or camera. If a claimant is claiming to be totally disabled but is performing manual labor at an open construction site, videotaping the claimant at the construction site would not constitute an invasion of privacy. However, if an investigator uses an invasive method for obtaining a videotape of a claimant, then the investigator and the employer may be subjected to an invasion of privacy claim. An investigator should never plant bugs, wiretap, or cut holes in fences, housing exteriors, windows or blinds in order to obtain a videotape of the claimant.
It is also important that the investigator be given an accurate and reliable description of the claimant and be able to identify the claimant before he undertakes surveillance. Make sure that the private investigator has a photograph or other recognizable image or description which will allow him to identify the claimant. In the same context, the claimant must be recognizable on the videotape. I recently litigated a case where the claimant tried to assert that his brother (although not twins, they could pass for twins) was the person identified on the videotape. We were able to undermine this assertion by obtaining the brother's time card showing that he was working for another employer at the time the videotape was taken. However, this is a common tactic which a claimant will use at a hearing when presented with a videotape showing him engaged in strenuous activities, despite his claims of total disability. It is important that the investigator take as many "tight" shots as possible and that the quality of the recording be as high as possible. Very dark, grainy, out of frame, jerky videotapes are particularly ineffective when litigating in front of the State Board.
The considerations regarding the use of an outside investigator to insulate the employer/insurer from liability will be discussed during the final section of this paper. However, it is also important that the investigator refrain from entrapping the claimant while conducting an investigation. Although use of entrapment tactics may not rise to the level of an actionable tort claim (as would invasion of privacy) most Administrative Law Judges are displeased with this type of tactic and will disregard any surveillance videotape obtained if the judge determines that this type of tactic has been employed. One example of this would be an investigator letting the air out of a tire on the claimant's car thus forcing him to change the tire in the parking lot. While the investigator may be able to obtain videotape of the claimant bending and stooping while changing the flat tire, if the claimant's attorney cross-examines the investigator regarding whether he was involved in deflating tire, this type of behavior would effectively nullify what may otherwise be effective videotape. Having said that, I have found that an investigator approaching a claimant under the pretext of performing remodeling work, auto painting, etc. does not rise to the level of entrapment conduct as would draw scrutiny from an Administrative Law Judge. There is an distinction to be drawn between direct conduct which forces the claimant to exert a higher level of physical activity versus indirect conduct where an investigator makes a pretextual inquiry regarding services that could be performed by the claimant (such as auto detailing, painting, carpentry, etc).
The following is a list of stressors which are recognized as sources of stress which may cause or exacerbate mental injuries or psychological claims:
This is not an exhaustive list but may give some idea about the nature of stressors unrelated to the job accident which may account for a claimed mental injury.
Additionally, medical records should be scrutinized. Under O.C.G.A. § 34-9-207, the employee has a statutory responsibility to provide a release which will allow the employer/insurer to obtain medical records regarding the claimant's current injury and any past medical treatment. It is particularly important to scrutinize past medical records for references regarding treatment by psychiatrists, counselors, psychologists, or other mental health care professionals. Often, by reviewing a claimant's prior medical records, a history of psychological problems will become apparent. By identifying these psychological problems, an employer/insurer can defend against a claim for a mental injury stemming from a relatively minor physical injury. This may also allow the employer/insurer to establish a mental health baseline such that even if the work accident results in a temporary exacerbation of a pre-existing mental illness (e.g., depression), it would also provide a basis for the mental health care provider to reach a conclusion that, although a claimant may suffer from some mental condition related to the accident, he has returned to the level of mental health that was exhibited prior to the accident.
Invariably there will be tension between management and labor. This tension is exacerbated when co-workers perceive that the claimant is being unfairly treated or abused as a result of the work accident. It is never good for productivity or morale to allow co-workers to foster the perception that, if a work injury occurs, an employee will be subjected to glaring personal scrutiny, tailed by an investigator, and have his neighbors questioned about personal matters. Because of the impact that these type of investigative tactics may have on the work force, normally, employers will attempt a low profile investigation before conducting surveillance. Obviously, the best method of investigating a claim is by obtaining statements consistent with the recommendations contained in sub-sections I and II of the this paper. It is also a good idea to obtain a medical release and obtain medical records from as many providers as can be identified.
Another alternative to conducting off-site surveillance would be to hire a private investigator to do a search of a two (2) or three (3) county area looking for any court records which may demonstrate that the claimant has been charged with a crime, is involved in divorce or custody proceedings, or is in financial trouble due to garnishment or child support arrearages, etc. Usually, a private investigator will perform a search of a county state or superior court docket for $100.00 to $200.00. This is significantly less than the cost of active off-site surveillance and often results in the gathering of information which can allow more insight into the possible unethical motives for asserting a workers' compensation claim.
If the claim progresses to litigation and a claim is pending, it is always a good idea, either through written discovery or deposition, to obtain a list of creditors to whom the claimant has applied for consumer credit for the last twelve (12) months. Often, a claimant will say that he is totally disabled when discussing the claim with a member of management, a co-employee or the claims adjuster; however, when the claimant is submitting a loan for a new boat, recreational vehicle, etc., the claimant will exaggerate his total monthly income in order to qualify for the loan. By asking the claimant for a list of all his credit cards, recent purchases, etc. (ask him if he bought any furniture or appliances) a discovery request can be submitted to the claimant's consumer creditors to determine whether the claimant has any additional income which was reported to the creditors but concealed from the employer.
Finally, in conducting a low profile investigation, it is always important to determine whether there is any security videotape at the facility where the claimant was injured. Although this will not apply to all employers, most major manufacturing or industrial production facilities have some type of videotape security system to prevent employee theft, monitor vendors coming and going from the facility and to monitor general ingress and egress by employees and the general public. Often a security department will continuously record certain areas of the industrial production or manufacturing facility, and the videotape taken for the purpose of security may be utilized for the purpose of investigating a fraudulent workers' compensation claim.
For example, if an investigator is conducting surveillance of a claimant's home and is approached by a neighbor and asked what he is doing, if the investigator identifies himself as a law enforcement agent "staking out" a child molester, this obviously would form the basis for a defamation claim. In this instance, how do you limit the employer's liability for the outrageous conduct of a "loose cannon" investigator. The following are suggestions to insulate the employer from this type of liability.
An employer can limit its exposure for an investigator's misconduct by entering into a contractual agreement in which the investigator agrees to indemnify and hold the employer harmless for any acts which may give rise to independent causes of action which may be filed by the claimant against the employer which arise as a result of the fault of the investigator.
Before an investigator is hired to conduct surveillance, it is essential that the employer require that the investigator maintain a minimum of $1,000,000.00 in general liability coverage. The employer should obtain a certificate of coverage directly from the insurer. Unscrupulous investigators could easily forge or manufacture a certificate of insurance purporting to show general liability coverage. This type of investigator would be more likely to engage in a course of outrageous conduct that could subject the employer to additional liability. It is important to have the investigator provide the basic information regarding the policy (policy number, underwriting insurer, date of issue, etc.) but, it is incumbent upon the employer or the claim's adjuster to contact the underwriting insurer and verify coverage, its effective date, and the amount of coverage available.
It is also advisable to require the investigator to list the employer/insurer as an additional insured on the general liability policy. This arrangement is very common in the insurance industry and most insurer's offer a product which will give an investigator the option to add his principal as a covered entity under the policy. If you are dealing with an investigator who is unwilling or contends he is unable to list the employer as a co-insured, find another investigator.
Even if an employer abides by these suggestions, there is no guarantee that an indemnity contract will insulate the employer from liability. If the investigator goes out of business and is unable to pay a damage award, the plaintiff could still look to the employer for payment. Likewise, even if the investigator produces a certificate of insurance which is verified, it is possible that the investigator's conduct may rise to intentional, criminal activity, and his coverage would probably be excluded under the policy. In this scenario, the employer would also be liable if coverage is declined. Although private investigator misconduct is rare, it can occur. Often a young investigator who is eager to make a name for himself will engage in a course of conduct that a seasoned former military/police officer would not. The best way to prevent this type of risk is for the employer to investigate the investigator. Check references, and talk to former clients. If the employer can systemically and carefully select a professional, reliable investigator, this is the best method for heading off future liability.
It is also important that the employer/insurer set specific standards for the investigator's conduct. An employer should never say to an investigator that he is to obtain videotape of the claimant working "at all costs." The employer should tell the investigator that he is prohibited from using high tech listening devices, using a wire tap, doing anything that is illegal, having direct communication with the claimant without the employer's prior knowledge and permission, entering the claimant's property, damaging or altering any of the claimant's personal property (such as cars, mailboxes, etc.), or engaging in any type of staged activity. The best way to avoid liability for an investigator's conduct is to systemically, analytically, select an investigator with a large client base, a proven track record and good references.
Joseph Brasher received his B.A. in 1990 from the University of Georgia. He received his Juris Doctor from Cumberland School of Law, Samford University in 1993. He was admitted to the Georgia Bar in 1993 and the Alabama Bar in 1994. While at Cumberland, he was a member of the Cumberland Law Review and the recipient of a Dean's Merit Scholarship. Mr. Brasher's practice is concentrated in the areas of insurance defense, commercial litigation and workers' compensation defense.
Joseph Brasher received his B.A. in 1990 from the University of Georgia. He received his Juris Doctor from Cumberland School of Law, Samford University in 1993. He was admitted to the Georgia Bar in 1993 and the Alabama Bar in 1994. While at Cumberland, he was a member of the Cumberland Law Review and the recipient of a Dean's Merit Scholarship. Mr. Brasher's practice is concentrated in the areas of insurance defense, commercial litigation and workers' compensation defense.[Back to Top]