Dee Ella Dorey Esq.

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THE ANTI-PAPARAZZI LAW AND SURVEILLANCE

"Everything breath you take, every move you make, I'll be watching you..." These famous words of the musician Sting demonstrate the perspective that resulted in the anti-paparazzi law. In 1998, the California State Legislature enacted the anti-paparazzi law (also known as constructive invasion of privacy). The purpose of the legislation was to reduce invasive behavior toward celebrities and was the legislator's response to the death of Princess Diana. The unfortunate consequence is a chill on video of employees with suspicious workers' compensation claims because investigators, employers, and insurance companies can be liable for punitive damages.

The relevant elements of civil code 1708.8 ("constructive invasion of privacy") are as follows:

  1. An attempt to capture a visual (or other) image of a person engaging in a personal or familial activity.
  2. The manner in which the image is captured is offensive.
  3. The person had a reasonable expectation of privacy in the activity filmed.
  4. Visual or auditory enhancing devices are used in capturing the image.
  5. Even if there is no physical trespass a constructive trespass exists if the video could not be made without visual or auditory enhancing devices.

The lobby for the insurance companies was successful in getting an exception to this anti-paparazzi law for suspected fraudulent insurance claims [?1708.8(f)] which excludes surveillance for suspected fraudulent insurance claims. For the exception to apply, there must be articulable suspicion of insurance fraud.

ARTICULABLE SUSPICION

No where is the term "articulable suspicion" defined. Decisions in the criminal area provide some understanding of this term of art. In regulating police activity under the 4th Amendment's prohibition against search and seizure, the Supreme Court carved out an exception for "reasonable and articulable suspicion". Terry v. Ohio, 392 US 1 (1968). Terry and its progeny require that a police officer reasonably suspect, in light of his or her experience, that some criminal activity has taken, or is taking place, before stopping an individual. This reasonable suspicion must be based on specific articulable facts which, when taken together with rational inferences from those facts, reasonably warrant any intrusion.

The fact that the California legislature chose not to add the word reasonable to such a common term of art as "articulable suspicion" leads to me believe that the exception for fraudulent activity is a very low standard indeed.

WHAT IS A FRAUDULENT INSURANCE CLAIM

To have a viable action for a fraudulent insurance claim; there must be a lie, it must be material to collecting workers? compensation benefits, the lie must be made with the intent to obtain benefits not otherwise due to the employee, and it must be made with knowledge that it is not truthful. The fraud need not be just with respect to the injury; it may exist with respect to temporary disability, modified work, medical benefits, permanent disability, etc.

However, none of these elements must be proved in order to avoid liability for surveillance of an employee. To avoid liability for surveillance, an employer/insurance company must document the facts that create an articulable suspicion of fraudulent activity. The facts which must be articulated are simply that which have been known as red flags. Some of the red flags which create an articulable suspicion of workers? compensation fraud include the following:

  1. The employee alleges a mechanism of injury not likely to result in the symptoms described.
  2. The employee was experiencing personal problems prior to reporting a work injury.
  3. The employee was experiencing work problems prior to the alleged injury.
  4. The alleged injury was not witnessed by other employees.
  5. Between long term disability and workers? compensation benefits, the employee makes more or as much staying home than the employee did while working.
  6. The length of time an employee has been off work is a much greater length of time than an employee with a similar diagnosis.
  7. The employee?s subjective complaints are far greater than his or her objective findings.
  8. The employee is rumored to be working under the table.
  9. The employee is rarely home when called.
  10. The employee expressed a frequent desire to not work before the injury.
  11. The employee told his friends he was injured away from work.
  12. The employee does not have medical insurance and reports a Friday injury on Monday.

THE TREATING DOCTOR PRESUMPTION AND THE NEED FOR SURVEILLANCE

Even if the employer obtains a medical opinion by a doctor considered significantly more credible than the doctor the applicant chooses, the judge is still bound to issue a findings and award consistent with the treating doctor unless that opinion is clearly shown to be in error. (Labor Code ?4062.9) Video surveillance is one of the most useful tools for demonstrating that the treating doctor's opinion is in error.

In conclusion, in order to avoid liability under the anti-paparazzi law, the employer or the insurance company must specifically cite reasons regarding why they are suspicious of employees. Although ordering surveillance because of a intuition of mistrust could result in punitive damages, surveillance is still important. However, the referrals to the investigator must be substantiated and documented by clear facts which create a suspicion of insurance fraud.

This page was last updated May 7, 2008