Can a workers' comp insurance company hire a private investigator to follow me?

Learn what private investigators may and may not do when conducting surveillance of injured employees who’ve filed workers’ comp claims.

Question

I filed a workers’ compensation claim against my employer a few months ago, after I tripped and fell at work. I recently noticed a van that’s been parked on my street and other places where I run errands throughout the day. I might be paranoid, but I think I’m being followed. Is it possible that this is related to my workers’ comp case? If so, is that even legal?

Answer

You’re probably not as paranoid as you think. It’s not illegal—or uncommon—for insurance companies to hire private investigators to follow employees who’ve applied for workers’ comp benefits, in an effort to prove that they’re not as injured as they say they are. Sometimes this is warranted to uncover fraudulent claims. But more often than not, insurers use surveillance as a routine tactic to avoid paying for even legitimate claims.

In general, it’s not illegal for private investigators to observe you in public places and take photos or videos of you. This doesn’t mean they may go to any lengths to get incriminating evidence against you. Private investigators aren’t allowed to do anything illegal, which could include trespassing onto your private property, entering your home without your consent, hacking into your email or mobile phone, putting a tracking device on your car, or impersonating law enforcement officers.

Despite these limitations, private investigators may gather valuable ammunition against you simply by following you around in public while you run errands, attend doctors’ appointments, or mow your front lawn. In some states, they may be allowed to take photos or videos of you inside your home, as long as they can see you from public property through a window. Even in states with laws against secretly photographing or recording through the window of a house, such as Minnesota, it’s generally only a crime if the person being recorded reasonably expected privacy (Minn. Stat. Ann. § 609.746(b) (2018)). It would be hard to argue that it was reasonable to expect privacy when you’re walking in front of the living room window with the curtains open, visible from the street.

Fortunately, you can take steps to prevent a private investigator from jeopardizing your workers’ comp case. Even if the insurance company hasn’t disputed your claim, make sure that your public activities are consistent with your injuries. And be careful not to put yourself in situations that could look bad if taken out of context. For example, if you injured your back in the fall at work, don’t allow yourself to be photographed or video recorded lifting heavy boxes, gardening, or horsing around with your kids. You might think it’s OK to try these activities and stop as soon as you feel pain. But a photograph of a single instant (or a brief video clip) could make it look like you’re physically able to perform these tasks.

You should also be careful about what you post on social media, especially photographs. Before you post a picture, ask yourself: Is there any way that this could be taken out of context in my workers’ comp case? For example, if you’re off work on temporary disability because of your injuries, don’t post photographs of yourself hiking, even if you drove all the way up to the top of a hill and stopped to snap a picture.

Finally, don't forget that private investigators have telephoto lenses and are trained to get quality photographs from over a hundred feet away. So just because you don’t see photographers nearby doesn’t mean they’re not there.

If the insurance company disputes any part of your claim—especially if it has photos or videos that show you in a bad light—you should speak with a workers’ comp lawyer. An attorney who’s experienced in this area of the law can help counter that evidence, put it in context, and gather other evidence that can support your claim. (Learn more about what a good workers’ comp lawyer should do for you.)

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