Watching Your Step With Surveillance

Workers' compensation attorneys advise on how to use surveillance video to impeach testimony and social media to dig into the background of your clients, opposing counsel and their clients.

By CYRIL TUOHY, managing editor of Risk & Insurance®

Surveillance video, one of the most effective weapons in disputing workers' compensation cases, is sometimes a double-edged sword, two experts said this week. Video showing fraudulent activity can help seal the case for one side or the other in a matter of minutes.

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Yes, we've all seen the supposedly injured worker drop his or her crutches and break out into a trot on the televised newscast. Those are the kinds of images that will win over a jury and deny a plaintiff's attempt to collect disability. Just make sure the image represents what you want it to, legal experts said.

"Anytime you have a claimant who lies under oath," said defense attorney Richard Lenkov, "make sure the video impeaches the claimant's testimony, and that it impeaches what they say. If you do that, you've got a homerun."

While that's true, said plaintiff attorney Matthew Belcher of Belcher Law Office in Chicago, there is another side to the story.

"Sometimes there is an explanation for someone ripping off the insurance company," Belcher said. "You need to look at the tape from the outside perspective."

Lenkov and Belcher spoke on Thursday during a session titled "What are They Thinking: An Inside Look Into the Strategies of Plaintiff and Defense Attorneys" at the 19th Annual National Workers' Compensation and Disability Conference® & Expo in Las Vegas.

Both attorneys cautioned, however, that either party to a lawsuit should not get too caught up using the video as it can sometimes cloud judgment.

Take, for example, the case of an injured construction worker claiming a work-related disability to the left wrist. Video showing him climbing a ladder with what appears to be a heavy bucket in the left hand would seem to indicate the worker's compensation claim is fraudulent. But if the bucket is empty, the surveillance video is going to be called into question as an impeachment tool.

In Illinois, there is no duty for one side to turn over surveillance video to the other side before trial, Lenkov said. It's OK for parties looking to negotiate or settle a case to turn over the video to their opponents, Lenkov also said. Those who do, however, risk losing the element of surprise, he said.

In other states, the legal parties have a duty to turn over surveillance video, said session moderator Jim Pocius, with the firm of Marshall, Dennehey, Warner, Coleman & Goggin in Philadelphia.

SOCIAL MEDIA

Lenkov, a partner with the firm of Bryce, Downey & Lenkov in Chicago, said he also uses "social surveillance," social-media sites like Facebook, MySpace and LinkedIn, to find out as much as he can about his opponent. A claimant alleging a disability found blogging about their latest night club trysts, for instance, is going to invite suspicion, he said.

"Social media is easy, quick and free," Lenkov said. Why not use it?

State law licensing associations also serve as a valuable resource to find out as much as possible on his opposing counsel, he said.

November 15, 2010

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