Employers often have reason to suspect that an injured worker who is receiving benefits is capable of sustained remuneration (i.e., working). The question then becomes whether the employer should (a) retain the services of a private investigator to perform surveillance on that employee, or (b) contact the Special Investigations Unit of the Bureau of Workers’ Compensation (“BWC investigator”), whose members
are trained to conduct investigations in order to meet the requirements for terminating workers’ compensation benefits.
In most instances, we recommend preliminary surveillance
by a private investigative firm. However, in order to fully prosecute a case where the injured worker is collecting either temporary or permanent disability benefits awarded by the workers’ compensation
system and is also working, you should involve the Special Investigations Unit.
In order to prove that an employee is faking injuries and to convince the BWC to terminate benefits, the BWC must find that the injured worker:
- has engaged in sustained remunerative employment;
- has demonstrated the physical ability to engage in sustained remunerative employment; or
- has engaged in activities so medically inconsistent
with the medical evidence that the medical evidence is impeached.
If the BWC makes that finding, the employer will be credited for any and all benefits paid to the injured worker for the time period when he/she was working (or was capable of working).
The BWC investigator has very sophisticated surveillance
equipment, including sensitive microphones and cameras to prove that an injured worker (a) is physically capable of engaging in sustained remunerative
employment; or (b) is performing physical acts that are so medically inconsistent with the medical
evidence that the medical evidence is impeached. Also, the BWC investigator, unlike a private investigator,
has the ability to subpoena bank records and to confront employers to determine whether an injured worker is on the employer’s payroll
Based on our experience, the BWC investigators are cooperative and helpful in preparing and carrying out such investigations, although in recent years due to their increased workload, the completion of investigations have not been as timely as employers may like. However, in order to pursue an injured worker who is believed to be cheating the Workers’ Compensation system, we recommend contacting BWC’s Special Investigations Unit.