Surveillance Rules in Iowa Work Comp Cases

In Iowa work injury cases the insurance companies and employers will sometimes conduct surveillance of the injured worker. The surveillance is usually done by companies that specialize in this type of work. The parties conducting the surveillance will secretly follow a worker for one to three days and videotape and/or photograph the worker to the extent possible. If a worker has claimed that they are severely disabled, and the defendants can obtain video and photographs showing the worker being involved in strenuous activities that is helpful evidence for the defense that the worker has exaggerated the extent of his injuries.

The Iowa case law is full of examples of videos and photos of injured workers performing activities that they claimed they could not do. Surveillance teams have been able to show injured workers doing things like helping to roof their own home, carrying large appliances out of stores, digging fence posts, laying sod, and planting fairly large trees by hand.

Under Iowa law the defendants traditionally have not had to reveal their surveillance evidence until after they have had an opportunity to take the deposition of an injured worker. A deposition is part of the discovery process in Iowa workers’ compensation cases in which the defense lawyers get to interview the injured worker in person. The injured worker is sworn under oath to tell the truth, and a court reporter takes down all of the questions and answers, and types them up in a written form that is called a transcript. The deposition transcripts can be used as evidence at the workers’ compensation trial. As part of the deposition the defense lawyers will ask the injured worker about his activities in such a way to try to hide from the worker that surveillance had taken place. The best possible results from a defense point of view is if a worker will deny doing the type of activities that he is actually shown performing in the surveillance video. The defense then has the double prong attack of being able to say that the worker not only exaggerated the extent of their disability, but lied about it under oath.

On October 23, 2012 the Iowa Workers’ Compensation Commissioner issued a Declaratory Order that changed the Iowa rules about disclosing the existence of surveillance.

One of the important changes is that the defendants can no longer automatically wait until after the deposition of the injured worker to reveal their surveillance evidence. If the lawyers for the injured worker make the proper request the defense lawyers have to either produce the surveillance, or raise certain specific objections which then have to be ruled upon by the Iowa Workers’ Compensation Commissioner.

A second important change relates to surveillance evidence that supports the worker’s claim of injury and disability. Traditionally, to the extent that the surveillance only showed things such as the worker limping around and having trouble picking up groceries, the defendants could choose not to reveal this surveillance and keep it confidential. Under the Commissioner’s Declaratory Order the defendants are required to produce the surveillance whether it cut in favor of the defendants or the injured worker.

The defendants have appealed the Commissioner’s Declaratory Order. The appeal process could take a few years as the case is heard first at the District Court level and then the Appellate Court level. See here for my February 28, 2013 blog post that explains the appeal process in Iowa Work Comp cases in more detail.

Therefore, the law relating to the disclosure of surveillance in Iowa Work Comp cases is currently up in the air. However, if you are an injured worker my advice for you remains the same whether the Commissioner’s Declaratory Order on surveillance rules is affirmed or reversed. You always need to tell the truth and conduct yourself honestly. If you end up exaggerating or giving incorrect information about your condition it will have a very negative impact on your workers’ compensation claim. Very few cases are perfect, but most of the problems that come up in a work comp case can be effectively addressed and dealt with. However, if the defense can show that you are dishonest, then your case is in big trouble.

See here for my May 8, 2012 blog post about the importance of telling the truth, and more ways that failing to tell the truth can hurt your workers’ compensation case.