Video surveillance

EXTREME MEASURES

From the January/February, 1997 issue

An employer can resort to video surveillance to make a case before a workers' compensation board, but it should only be done in appropriate cases -- and it has to be done right

By Robert C. Brun and Laura A. Wright

Everyone has heard outrageous stories of people who abuse the workers' compensation system. Most are false and many are exaggerated, but a few are true. The true cases of abuse are a drain on a system established to provide fair compensation to deserving individuals injured at their workplace; they can have a serious negative impact on an employer's experience rating, they undermine confidence in the system, and they are crimes.

While it is the responsibility of each workers' compensation board (WCB) to establish the legitimacy of claims, the employer -- as a corporate citizen and as an interested party with a financial stake in the outcome -- can submit evidence to the board to assist it in the process. Sometimes, that can include evidence gathered by or on behalf of the employer. And that evidence may include video surveillance.

This surveillance, which usually involves hiring a professional investigator, is a very serious step. Employers who feel that a situation is extreme enough to warrant such measures will have to undertake surveillance only after careful reflection. If an employer does find it necessary, it is often appropriate to undertake the surveillance as a first (or only) step in assisting the WCB in establishing the legitimacy of a claim.

Video evidence, if relevant, is admissible by the WCB but will undergo scrutiny to ensure its accuracy and validity. To make sure surveillance is done correctly and fairly, certain steps need to be considered and followed.

In contrast to the adversarial legal system, the WCB scheme of social insurance, although administered under legislation specific to each province, is a system uniformly based on wide-ranging inquiry and information gathering. This scheme is more receptive to evidence of all kinds, including videotape surveillance of a worker who is receiving benefits prepared at the direction of that claimant's employer. If someone decides not to take the WCB seriously in this regard, however, there are sections in each province's governing act that give the board the power to compel the attendance of witnesses and the production of records, documents and other things.

The governing criterion as to the acceptance of video surveillance evidence by the WCB is relevance: The less bearing the evidence has on a claimant's file, the less likely it will be given attention. For example, when a claimant in British Columbia is awarded a permanent partial disability pension for a certain percentage loss of physical functioning, he will receive that pension for the rest of his life. It is therefore irrelevant that he may eventually find a job, and a surveillance tape of this pensioner working after receiving his award has no impact on his pension entitlement and is likely of no consequence.

As well, there is no point trying to build groundless opposition to a claimant's entitlement to benefits using surveillance evidence in the hopes that it will be persuasive. Neither the courts nor the WCB takes well to this misleading tactic. In a 1994 Alberta decision (Adams v. Confederation Life Insurance Co.) a woman claimed benefits under a group plan of disability insurance issued to her by her employer. After receiving both short- and long-term disability benefits, the woman was able to return to rehabilitative part-time work at a bookstore for 16 hours a week and her disability benefits were reduced. However, the reduced benefits were terminated by the insurer on the basis of an investigator's report suggesting the woman was working more than 16 hours per week, despite overwhelming and consistent medical opinion confirming the woman's continuing disability.

The report was prepared solely on the basis of surveillance conducted at the direction of the insurer. The investigators were in the bookstore only three or four times and for only brief periods. Most of their surveillance was conducted from outside the store with inadequate visibility of store activities. There were no details as to the attendance of staff or even their arrival and departure from the store. The surveillance was not long enough on which to base an accurate assessment of the woman's ability to work in excess of 16 hours per week on a consistent or any other basis.

The court found the insurer's decision to launch an unwarranted and unmerited investigation amounted to a breach of a duty of good faith owed to the insured woman and awarded punitive damages against the insurer.

But assuming an employer has a relevant and valid objection to a claimant receiving benefits, a company can provide the WCB with a surveillance tape in support of its position. The basic act of conducting this surveillance is not illegal. This well-established principle was recently affirmed in the 1996 British Columbia personal injury case Unger v. Lutz, where the court declined to grant an injunction restraining the defendant's insurer from conducting overt surveillance of the plaintiff.

When providing surveillance evidence to the WCB, an employer will not need to address many of the specific objections to the admissibility of such evidence that may arise in a court setting. Nevertheless, the WCB will carefully evaluate the quality of the evidence given to it to ensure it fairly and accurately portrays what the employer says it does. For instance, a film or videotape in a speed other than real time could be misleading to the point of being unreliable and unworthy of consideration. As well, deliberately editing a film or videotape to use otherwise neutral footage to present a distorted portrayal of events would likely be discovered by the WCB in the course of its investigation. While this may not render the evidence completely unacceptable, it will likely needlessly undermine its impact. In Smith v. Avis Transport, a 1979 Nova Scotia personal injury case, the defendant submitted surveillance evidence with glaring gaps in the recording which suggested sequences showing the plaintiff in positions supporting his claim were deliberately not filmed. The judge accepted the evidence overall, but noted his reservations about the manipulation.

Since editing film or videotape tends to be viewed as something that works solely to the advantage of the party who edits and presents it, The Honourable Mr. Justice G. Peter Fraser of the Supreme Court of British Columbia suggested in his 1992 article, entitled "Admissibility of Photographic, Film and Videotape Evidence,"1 that when a litigant intends to prepare film or videotape evidence where only a portion of it may be relevant, credibility could be enhanced by using a time/date generator that imprints the date and precise time on the recorded image. This information may dispel the suspicion of editing or, where editing has occurred, plainly and precisely indicate what has been omitted.

Upon receiving a video surveillance tape from an outside source, various WCBs may treat it somewhat differently. In British Columbia, the tape will be viewed by a claims adjudicator or other board officer as part of the decision-making process. If necessary, an adjudicator or investigator will interview the photographer, employer and witnesses included in the footage to help establish the accuracy of the evidence. Assuming the evidence is accurate and relevant, the adjudicator likely will disclose the tape and its source to the claimant or put the information on the tape to the claimant and invite comment. The claimant's response and the videotape become part of the file and form part of the basis upon which a decision as to continuing entitlement to benefits is made.

In Ontario, a videotape is not reviewed firsthand by an adjudicator. Instead, an investigator or manager reviews the evidence and elicits information by letter or in person from the tape's author to confirm who prepared it and that it is a true, unaltered representation. Once the evidence is satisfactorily verified, the investigator or manager prepares a transcript or factual summary of the visual evidence for consideration by the adjudicator. The tape itself remains on file and can be viewed later by an appellate-level decision maker, if appropriate.

Conduct of surveillance

In addition to the technical matters concerning a surveillance tape's authenticity, there are other issues to keep in mind when assembling video evidence that will be accepted by and impress the WCB. In order to conduct surveillance of a claimant effectively and fairly, care must be taken even before surveillance begins.

The video photographer should be a professional who knows how to operate the equipment and who will be a reliable witness to authenticate the evidence he generates. As well, the photographer should be carefully instructed as to how and when to conduct the surveillance.

Videotape surveillance has been found to be unreasonable and therefore wrongful where it was conducted in a malicious manner or without reasonable restrictions on time, place and duration. In respect to this last point, there are times during the day when the claimant is likeliest to be doing something the employer would want recorded. Instead of tracking the claimant at random or filming for days on end, a surveillance schedule should be developed using the information the employer has about the claimant's routine. This way, the photographer can be there when the claimant acts in a way that is inconsistent with his alleged injuries without wasting a lot of time.

Though recording a claimant's activities on videotape is not in itself an invasion of privacy, the photographer ought to be warned against conduct which could give rise to a lawsuit against him or the employer who hired him for dishonesty, misrepresentation, deceit, fraud, entrapment, invasion of privacy, harassment, intentional affliction of emotional distress or trespass. For instance, if the photographer presents himself to the claimant as a real estate agent and is invited into the claimant's home to discuss its sale but is all the while secretly filming, a court may decide the claimant's privacy has been invaded and there has been a trespass.

It is unnecessary and generally unwise to try to entrap the claimant in a staged scenario to obtain evidence of his fictitious injury. To do so gives the claimant the opportunity to start a lawsuit. As well, should the claimant injure himself further as a result of the setup, he could sue for additional damages.

However, it is noteworthy that even though a claimant is duped by an investigator, his privacy has not necessarily been invaded. In a 1992 British Columbia personal injury case, Rusche v. ICBC et al, a private investigator tricked the plaintiff into coming out of his house to discuss the sale of a car while a second investigator, hidden from view, made a video recording of the scene for the insurer. The plaintiff brought an action for general and punitive damages against the defendants for trespass and invasion of privacy. The case was heard by judge and jury. The jury found there had been no breach of the Privacy Act. It did find there had been a trespass but did not award punitive damages.

Although a jury does not give reasons for its decision, it is reasonable to infer that it found the investigator's actions did not constitute an invasion of privacy because his conversation with the plaintiff was held outside. Had the investigator discussed the sale of the car in the plaintiff's home, it is likely the decision would have been different.

On the other hand, videotape surveillance does become unreasonable when it is conducted in a malicious manner, for example, to harass or frighten, or without reasonable restrictions on the time, place or duration. For instance, constantly monitoring a claimant on his private property, peering through his trees or hedges, or trailing him day and night in such a way as to distress him is the wrong way to go about conducting efficient and safe surveillance. In fact, in order to avoid the possibility of a suit for trespass and/or invasion of privacy, the photographer should not enter onto private property, especially that of the claimant. (In addition, it is advisable to avoid using special lenses that give a camera access to a claimant behind a curtained window, for example.)

Instead, the photographer should stay out of sight so the claimant and his neighbours are unaware of the surveillance. By doing so, the risk of the claimant suing for harassment and/or intentional infliction of emotional distress can be eliminated. In addition, an unsuspecting claimant will not have his guard up, and the candid surveillance will be of his natural, actual activity and ability.

Videotaping should take place in a public area when possible -- on a transit bus, in a supermarket or at the beach, for example. The reason for keeping the video surveillance as public as possible is simple: When a person is in a public area he cannot expect the same degree of privacy as when he is at home. By taping the claimant in public, the surveillance is much less invasive. However, filming should not take place where children are about, such as at a day-care centre, lest the claimant or parents become suspicious and alarmed that a child is in danger.

Lastly, the footage taken by a photographer should be visual only, so as to avoid the possibility of any wrongful eavesdropping when taping a conversation involving the claimant.

Though most workers' compensation claims made by injured workers are legitimate, employers occasionally have reason to believe a worker is faking or exaggerating a injury. By taking the steps outlined above, an employer can use video surveillance to either confirm or allay its suspicions and to help prevent abuse of the compensation system.

Robert Brun and Laura Wright are lawyers with Harris & Brun in Vancouver, B.C.

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