February 22, 2010

Could Surveillance As We Know It Be Coming To A Close?

Could Surveillance As We Know It Be Coming To A Close?
by Teesha T. McCrae, Esq.

Colorado’s House Judiciary Committee recently approved H.B. 10-1012. The bill would prohibit employers and insurers from conducting surveillance of workers’ compensation claimants unless they have “a reasonable basis to suspect that the employee has committed fraud or made a material misstatement concerning the claim.” The proposed legislation will now go before the Colorado House Appropriations Committee. Under Colorado’s current law, employers and insurers may initiate surveillance on any workers’ compensation claimant without a showing of probable cause or any other justification.

The effect of Colorado’s proposed legislation is potentially far reaching and not without controversy. In fact, public hearings have been held on this bill at Colorado’s State Capitol. One of the most vocal critics of House Bill 10-1012 is Pinnacol Assurance, a quasi-governmental agency that handles approximately 60% of all workers’ compensation claims in Colorado. Pinnacol contends the proposed legislation makes it easier to commit fraud in Colorado by placing the burden on the employer and insurer to show wrong doing on the part of the claimant before initiating surveillance. Furthermore, surveillance helps to root out claims that are not legitimate so that resources can be focused on those that are. Conversely, proponents of the bill contend surveillance unfairly treats claimants as criminals forcing them to stay locked away in their homes for fear of being followed by cameras. Proponents also state surveillance is nothing more than a thinly veiled attempt to lower the value of the claim by pressuring claimants to settle sooner and for less money.

Attorneys and those in the insurance industry in Colorado are following this development rather closely. If the bill were to pass and become law, Colorado would be faced with the task of defining “reasonable,” which can be a nebulous term. The task of defining “reasonable” would be left to the courts. The extent of the restrictions placed on employers and insurers when investigating claims would be unclear until the courts have had an opportunity to interpret the law. Until then, the law in Colorado (as in Georgia and most states) remains that employers and insurers are free to diligently investigate workers’ compensation claims through the use of surveillance.

If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.

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