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A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
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Articles emphasizing practical knowledge you
can't find in practice guides
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Profiles of people who changed workers’
compensation law.
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• Warren
Schneider
• Marjory Harris
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1. Obtain the investigator’s
log, reports, or
field notes.
Sometimes the log accompanies the film, but if it
does not, a telephone call may produce it. If there is
opposition, send a demand letter. If that does not
work, have a subpoena duces tecum issue. If
defendant refuses to produce these documents,
and then attempts to show the film at trial, argue that
they have not laid a foundation and prevented you
from investigating their conduct.
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2. Unless the film is of the “so
what?” variety,
watch it several times to note body mechanics,
whether the applicant is exceeding work
limitations, and whether there are time gaps or
“field editing.”
Specific items to watch for include lifting and carrying,
walking with or without assistive devices, use of the
hands or arms, movements of the neck and back.
Click here for a table to record notes.
The film may have been edited or condensed to give the appearance
of much activity in a short space of time. Watch the
counter and the log for the missing
minutes. Investigators claim they do not edit the
film, but they also do not press the button when
the applicant is grimacing or showing pain
reactions, or the bus the applicant is running to
avoid, and the like (“field editing”).
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3. Correlate the activity on the
film with medical evidence, both before and after. The applicant
may be filmed doing more than usual, and treatment notes soon
after may report increased pain.
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4. Review deposition testimony
to determine
whether the activity conflicts with the
applicant’s testimony.
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5. Have the applicant review the
film and prepare
notes on their activities. If they report that
the items
lifted were much lighter than they appear to be, have
them weigh them. Prepare a declaration for them to
sign. Make sure the applicant understands the effect
of the sworn statement.
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Do a declaration or a letter to
alert the medical examiner to the “missing minutes.”
Click here
for a sample declaration.
Evidence Code §1553.
A printed representation of images stored on a video
or digital medium is presumed to be an accurate representation
of the images it purports to represent. This presumption
is a presumption affecting the burden of producing evidence.
If a party to an action introduces evidence that a printed
representation of images stored on a video or digital
medium is inaccurate or unreliable, the party introducing
the printed representation into evidence has the burden
of proving, by a preponderance of evidence, that the
printed representation is an accurate representation
of the existence and content of the images that it purports
to represent.
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6. Write to the treating physician
and/or
medical examiner |
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7. Review for violations of law.
Was the film
obtained by fraud, or by violation of Civil Code
§1708.8? Was it produced too late?
Review the law in getMedLegal’s Quick
Reference (search for “surveillance”) and write
demand letters if necessary. The film may disappear (see “A
Sad Face Fills a Window, Or, “When Is a Zoom Lens Not
A Magnification Device?” in Smoking
Gun). |
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Fraudulently obtained
video may be excluded from evidence and any medical
reports that considered the video may also be excluded
Redner v. WCAB 36 CCC 371
A person is liable for invasion of privacy when the
defendant attempts to capture, in a manner that is offensive
to a reasonable person, any type of visual image, sound
recording, or other physical impression of the plaintiff
engaging in a personal or familial activity under circumstances
which the plaintiff had a reasonable expectation of
privacy, through the use of a visual or auditory enhancing
device if it could not have been obtained without a
trespass. Investigator may not trespass (physical invasion
of privacy) or use visual enhancing devices such as
telephoto or zoom lens (constructive invasion of privacy)
unless supported by articulable suspicion of suspected
fraudulent insurance claim.
Civil Code
§1708.8
Voir dire of Investigator
Concerning Use of Magnification Device
Letter to
Opposing Counsel on violation of Civil Code Sec. 1708.8
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8. Prepare for Trial
If the films are to be shown at trial, send a demand
letter and prepare to assert lack of foundation and
other objections if the documents demanded are
not forthcoming.
Prepare to voir dire the private investigator. If he
refers to notes, logs, or reports while testifying, and
these were not served despite written demand and a
subpoena duces tecum, then move to exclude the
film. If you have the logs or notes in advance, prepare
to cross examine on “missing minutes” and the like.
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