The use of surveillance film as a litigation tactic to discredit the veracity of injured workers is oppressive and perpetuates unfair prejudice. Films can be debunked by exposing four widely believed myths. The first myth is that limitations from injuries are constant, affecting everyone the same way. The second myth is that work restrictions are the same as maximum capabilities. The third myth is that injuries and their effects can be accurately self-assessed by the injured worker. The fourth myth is an injured worker’s capabilities can be accurately quantified by filming them secretly. These are all false premises upon which the impeachment value of surveillance film is based.
When injured workers engage in casual conversation with their doctors, or when they are asked to give a statement about their functional abilities, they put themselves at risk for surveillance impeachment and criminal persecution. Most injured workers do not realize the potential scrutiny their words will be subjected to, after the fact, by sophisticated adjusters and their attorneys. Neither do most doctors.
Injured workers can easily misunderstand questions about their abilities. Questions are not always clear, whether they are requesting an estimate of when activity increases symptoms to the point where the injured worker tends to self-limit the activity, or they are really asking the worker to self- assess their maximum capabilities. Agents of the insurance companies and their attorneys illogically presume the answers are valid self- assessments of the injured worker’s maximum capabilities.
When an injured worker’s estimates seem overly restrictive for a literal maximum capacity the worker is then at risk of having their credibility impeached by surveillance film. The adjusters hire investigators who follow the worker around looking to film activity that is inconsistent with the worker’s estimated abilities. When the investigator successfully films activities in contradiction of the misinterpreted statements, the insurance carrier claims the films prove the injured worker is misrepresenting the effects of their injury. So the game goes.
THE FIRST MYTH: LIMITATIONS FROM INJURIES ARE CONSTANT, AND AFFECT EVERYONE THE SAME WAY.
Each injured worker’s injury is different. The severity of the injury varies as well. The worker’s genetic disposition for functioning with its effects is also unique, as are the symptoms they experience. Injured workers can have good days and bad days. Symptoms wax and wane. Pain affects people differently such as how disabling they perceive the pain and how their activity is affected by the pain. Pain can also vary at different times based on numerous variables, including: medication, prior activity versus rest, distraction, and individual psychological factors.
Exaggerated behavior and self assessment may stem from conscious or unconscious psychiatric pathology:
Somatization Disorder can explain variances in presentation of an injured worker, and overly restrictive self assessments. Doctors used to diagnose this type of mental health disorder (sometimes called psychosomatic or somatoform) when people reported physical symptoms that were not explained by a physical disorder. However, it is sometimes difficult for doctors to determine that a person has no physical disorder. Also, it is not usually appropriate to diagnose a person with a mental disorder simply because doctors cannot find a physical cause for the symptoms. Test results could have been wrong, or the wrong tests could have been used. Furthermore, many people may have a physical disorder that contributes to their symptoms, but they react so excessively or inappropriately to it that they are considered to have a mental health disorder. Also, making such a distinction between physical and mental symptoms sometimes makes people think that doctors do not believe their symptoms are real. Because of these problems, doctors now base the diagnosis of somatic symptom disorder on how people respond to their symptoms or health concerns. The main criterion is that people’s preoccupation with their physical symptoms is so strong that it causes significant distress and interferes with daily functioning.
When the perception of a disability is aggravated due to a psychological reason, it is still disabling, at least at a conscious level. However, since this type of limitation is not necessarily a physical limitation it is not surprising that it would be inconsistent with objective testing and also susceptible to contradiction by surveillance.
The myth that limitations are constant and affect people similarly is false.
THE SECOND MYTH: WORK RESTRICTIONS ARE THE SAME AS MAXIMUM CAPABILITIES.
Work restrictions are not equivalent to maximum capabilities. Comparing surveillance films to maximum capability in the abstract could provide contradictory evidence. The logistical problem is that accurate data of maximum capability available is rarely available for comparison. While work restrictions are estimates of risk, capacity and tolerance: those restrictions are unscientific and typically not objective. Further confusing matters is that work restrictions and maximum capabilities are intertwined and equated differently within a third term, disability.
There are many different ways of looking at disability. While it is necessary to discuss work limitations of an injured worker those discussions are often somewhat arbitrary assessments which are misunderstood to be declarations of maximum capabilities. The difference is exemplified by defining work restrictions using the “biopsychosocial” model.
Accurate work restrictions are broken down into risk, capacity and tolerance:
Risk refers to the chance of harm to the patient, coworkers, or to the general public, if the pa