Asch Workers' Comp StrategyIn the high-stakes environment of workers’ compensation litigation in New York, investigation and surveillance are indispensable tools for insurance carriers and defense counsel. These techniques help uncover the truth in cases where claims may be exaggerated, misrepresented, or outright fraudulent. While surveillance is not used in every case, it can provide compelling evidence to support or refute allegations of disability and work-related injury.
Why Use Surveillance in Workers’ Comp?
Workers’ compensation benefits in New York are meant to protect injured workers, but the system can be vulnerable to abuse. Surveillance and background investigation allow carriers to:
- Verify the extent of claimed disabilities
- Detect potential fraud
- Cross-check claimant activities against medical restrictions
- Confirm or refute the timeline and location of the injury
When surveillance is used ethically and legally, it can be a powerful evidentiary tool to support defenses, challenge credibility, or limit exposure.
Case Example 1: Disproving Total Disability
In one notable New York case, a claimant alleged a permanent total disability due to a severe back injury sustained while lifting equipment at work. He testified that he could not bend, lift, or walk without assistance. However, video surveillance conducted over three consecutive weekends showed the claimant:
- Loading and unloading furniture from a pickup truck
- Bending and twisting without visible distress
- Playing backyard sports with family members
This footage directly contradicted the claimant’s testimony and treating physician’s report. The Workers’ Compensation Law Judge (WCLJ) found the claimant not credible and significantly reduced the benefits, ultimately allowing the carrier’s WCL § 114-a defense.
Case Example 2: Causation and Post-Accident Injury
In another case, a worker claimed a knee injury occurred while descending stairs at a construction site. Surveillance revealed that on the day of the reported injury, the claimant was seen moving freely after the alleged accident. He later participated in a basketball game at a community gym, which surveillance investigators recorded.
Further investigation uncovered social media posts from that same day, showing the claimant boasting about a “great game” and even uploading a video dunking on an outdoor court. This evidence supported the employer’s defense that the injury occurred outside of work, allowing the carrier to deny the claim on causation grounds.
Case Example 3: Secondary Employment Discovery
Surveillance is not just about capturing physical activity—it also helps reveal undisclosed employment. In one case, a warehouse worker claimed a wrist injury and stated he was unable to work in any capacity. However, surveillance revealed he was working part-time for a catering company, lifting trays and interacting with customers at multiple weekend events.
The surveillance, along with payroll records obtained through subpoena, revealed that the claimant failed to report his income or employment status. This resulted in a successful fraud finding and a permanent disqualification from future wage replacement benefits under WCL § 114-a.
Legal Considerations and Best Practices
Surveillance in New York must comply with legal standards to be admissible. Investigators should avoid:
- Trespassing on private property
- Using deceptive means to obtain evidence
- Violating a reasonable expectation of privacy (e.g., filming through windows inside someone’s home)
Furthermore, surveillance is most effective when paired with medical records, claimant statements, social media, and employment history. Timely and targeted use—especially before or after Independent Medical Examinations (IMEs) or hearings—can produce the strongest results.
Conclusion
Surveillance is a critical but underutilized tool in the defense of New York workers’ compensation claims. When used judiciously, it can be the difference between a full liability award and a finding of fraud or denial of benefits. Carriers, employers, and their legal teams should consider integrating surveillance into their broader investigative strategy—especially in cases where the facts and the claimant’s story don’t quite add up.