This article is excerpted from
ECAB Video Surveillance Decision
The Employees’ Compensation Appeals Board issued a decision on 9/26/12 (Docket 11-863) that addresses a number of issues involving Postal Service OIG surveillance videotape. All branch contract enforcers and injured worker advocates should be familiar with this important decision. It is important because it addresses a critical distinction between use of surveillance videotape for the purposes of 1) fraud investigation, and 2) claims development.
The decision can be accessed on ECAB’s webpage here: http://www.dol.gov/ecab/decisions/2012/Sep/11-0863.pdf
A mail handler had an accepted on-the-job injury. She was off work following two surgeries. The Postal Service OIG conducted surveillance and videotaped her. The OIG had direct in person contact with the mail handler’s attending physician and showed him edited surveillance video. The mail handler was not aware in advance that her employer intended to present surveillance video to her doctor, and did not have an opportunity to obtain copy of the video and offer any explanations or comment.
ECAB reversed the termination on several grounds – two are detailed below:
First, the Postal Service violated the regulations prohibiting direct contact with the treating physician, 20 CFR 10.506. The Board wrote:
“It is clear that the agents of the employing establishment took an active, and in some issues decisive, role in developing appellant’s claim and building the case for termination of her benefits. The Board finds that OWCP departed from the implementing regulations by relying on evidence obtained through direct contact between agents of the employer and appellant’s treating physician… OWCP should have rejected evidence generated by a violation of the applicable regulations.”
Second, the injured worker was not afforded the required notice regarding the existence of the surveillance video and its intended use for the purpose of obtaining an adverse medical opinion. The Board stated: “The Board [has] imposed upon OWCP an obligation to disclose the existence of videotape evidence to the employee before it is shown to a doctor and to allow the employee to comment on and explain the events captured on tape.” The Board also quoted the relevant prior holding from an earlier case, 58 ECAB 478:
“Under certain circumstances, videotape evidence may be of value to a physician offering an opinion regarding a claimant’s medical condition. It may reflect on the patient’s reliability as a historian or the actual ranges of motion, lifting or other physical activities the claimant may perform. However, a videotape may be incorrect or misleading to a physician if there are errors, such as identity of the individual recorded on the videotape or whether certain activities were facilitated by the use of medication. The Office has the responsibility to make the claimant aware that it is providing videotape evidence to a medical expert. If the claimant requests a copy of the videotape, one should be made available and the employee given a reasonable opportunity to offer any comment or explanation regarding the accuracy of the recording.”
If this has happened to you and you were unaware you were being videotaped and/or not given a copy of the recording, nor given an opportunity to respond to the video, then you were wrongfully treated and therefore illegally terminated of either your compensation benefits or your employment.
You may file a grievance or an EEOC claim to have your compensation benefits or your job reinstated. However, the window that you have in which to file begins as soon as you read this article if reading this article is the first date you became aware that you were discriminated against and treated differently.
Call Federal Workers Compensation Consultants today for a free initial consultation at 813-931-1984
Federal Workers Compensation Consultants
Workers Compensation and Disability Retirement Specialists
9639 N. Armenia Avenue
Tampa, Florida 33612
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