The Subrosa Investigation
We constantly strive to increase our knowledge and expertise in the investigative field. We do this by attending seminars, research, and ongoing educational endeavors. The Internet is a vast source if information. The following is from the California Department of Insurance’s home page, chapter 7, fighting Worker’s Compensation Fraud, located at http://www.insurance.ca.gov.
The Subrosa Investigation
According to the dictionary, a subrosa is an old Latin term meaning "under the rose," the rose being an ancient symbol of secrecy or privacy. In modern terms, it refers to the surreptitious filming or still photographing of a subject who is under investigation, what law enforcement calls surveillance video.
A subrosa investigation is potentially one of the most valuable tools a claims handler can employ. It is often true that "A picture is worth a thousand words." Film or video evidence can be very useful at the WCAB and/or criminal court. But there’s also another saying: "Don’t believe everything you hear–and only half of what you see." Sub Rosa evidence, like all forms of evidence, may be open to interpretation. An effective subrosa investigation takes time, planning, and preparation.
We are dealing with suspected workers’ compensation fraud, and it is important to remember that not every suspect fraud case will be a good candidate for subrosa investigation. Once again, the basic elements of fraud are: The lie; knowingly told; for the purpose of obtaining benefits not due; and the lie is material.
The lie need not be either written or verbal–it can also be assertive behavior. For example, if a patient arrives at the doctor’s office wearing a neck brace and using a walker, the doctor would assume the patient is using these devices because of an injury. But if it could be shown that the patient did not use these devices either before or after the office visit, there would be a strong suspicion that the patient was trying to fool the doctor. And trying to fool a doctor is a form of lying that can be prosecuted. Further, this is an instance where visual evidence could prove the lie. On the other hand, there is a vast difference between a claimant saying "My back really hurts when I lift things" and "I can’t lift things." You might suspect lying when you’re being told that the claimant’s back hurts, but you won’t be able to use subrosa to prove the lie. Subrosa is a visual tool, and can only be used to uncover lies that can be disproved visually.
Good subrosa cases are where the claimant makes specific statement of things that can or cannot be done. (See the section on working with your medical providers to get specific statements from claimants.) Remember that the district attorney can’t prosecute a claimant for not following the doctor’s orders. If the doctor gives a work restriction and the patient does the activity anyway, you haven’t necessarily established fraud. Video of the activity might help you reduce the eventual permanent disability award at the WCAB, but it will be of no use in proving suspected fraud. The activity being filmed must be the subject (or assertive behavior) of the claimant, not someone else’s opinion of what the claimant can or can not do.
Also, consider whether the lie is material to the claim. Will disproving the statement change the benefits being provided to the claimant? People will sometimes lie in an attempt to obtain workers compensation benefits, but the lies are irrelevant to their eligibility and they would have had the same outcome if they’d told the truth. If that’s the situation, the case is not a good candidate for subrosa, because unless you can establish that, by virtue of the lie told, the applicant gained some benefit that wouldn’t have been obtained without that misrepresentation, you’re not going to meet the element of materiality needed to establish a fraud case.
In some cases you might want to conduct an activity check before considering a subrosa investigation. For example, an employer calls and tells you that the claimant is working at another company while telling the doctor it’s not possible to work. An activity check would be an inexpensive way of determining if that person is working and if the activity is different from what the person claims is impossible to do. Once the ground work is completed, then you might consider running a subrosa, if necessary.
Planning The Investigation
One of the most important elements of planning your subrosa operation is obtaining good, solid identification of the subject. The best subrosa in the world is useless if it’s of the wrong person. A photograph of the claimant is the best identification, and there are several ways to obtain one.
- You, as a claim handler, or your investigator could check with the employer to see if there is a photo in the personnel file that could be verified.
- Obtain a photocopy of the DMV photo from either the personnel file or the medical file. Doctors and clinics frequently keep a copy of this photo, as proof of who they saw.
- If there are no photos on file, the investigator might have to find the claimant, take a still photo, and show it to the employer to confirm identity. This might cost extra, but it would save time and money in the long run.
Another tactic is to arrange for the subrosa to be done when the doctor’s appointment is scheduled. The investigator can spot the claimant before the appointment, follow the claimant to the doctors office, call the office to confirm that the patient is there, then follow the patient away from the office.
One of the excuses for refusing a subrosa evidence is to say that the suspect statement and the subrosa were so far apart in time that the medical condition changed between the two events. If the claimant makes a statement, and then two months later there is video taken that "disproves" the statement, can you prove that the medical factors or other conditions didn’t change or improve in the intervening two months? Putting the subrosa in context takes away more excuses the claimant might try to use.
In many cases, the best possible time to conduct a subrosa would be just before and just after a medical appointment or deposition. These are the times when the claimant would make statements that you would suspect of being false. Further, having the subrosa done on the day of the office visit or deposition – as well as the day before and day after – could make the subrosa evidence so strong that it can not be "excused away." If your film from before and after the deposition shows activity that is contrary to what the claimant said in his deposition, then you have evidence that the claimant knowingly lied under oath. It might sound like "trapping" the claimant, but it really isn’t. We are asking questions and giving the claimant the opportunity to tell the truth. If the claimant lies, it is by choice.
A thorough subrosa will include footage shot at all hours and on different days. Not everyone works or plays during day time. Not all jobs operate on a 9-5, Monday-Friday basis. Has the claimant ordinarily done the kind of work that is performed on a swing shift and/or graveyard shift in addition to the day shift? Has the claimant been involved with sports groups or other activities that meet in the evening? On weekends? If your lead comes from an informant, such as the employer, you or the investigator might want to conduct an in-depth interview. The more information you have to begin with, the better the subrosa will be.
Remember that the investigator is not a professional claims holder, and this is not the typical AOE/COE case. Be sure you have told the investigator exactly what you suspect and what you need to make the subrosa usable in your investigation. The more clear and concise your instruction, the better the results – and the more wisely you will have spent your company’s time and money.
One of the things to stress to your investigator is the need for sufficient video – enough footage to show context. A few seconds or a few minutes will not be sufficient. You want to show not only that the claimant performed the activity in question, but also that the person suffered no ill effects afterwards. You are looking to establish a pattern of activity, so you want film before the individual is actually engaged in the relevant activity, you want film during the activity, and you want lots of film afterwards.
Caution your investigator about "turning on the camera only when the claimant is doing something." Footage like that allows the subjects attorney to argue that if the camera had not been turned off so quickly, you would have seen the subject suffered pain and had to stop the activity. Take that argument away from the claimant by getting plenty of film before, during, and after the "something interesting".
The investigator needs to get as much film as possible over several days to show a pattern of behavior that is not a one-time event. It might sound like overkill, and it certainly can be expansive, but this is one situation where you definitely get what you paid for. Remember, the burden of proof is on the accuser, and the proof must be "beyond a reasonable doubt" in criminal cases. We must be able to remove any reasonable doubt that the subject is knowingly lying. Absent sufficient evidence, the district attorney might not be able to prosecute.
Also, direct your investigator to get good, clear, still photographs of the claimant at the time the subrosa is taken. Stills have a sharper image than video and sometimes furnish better identity of the subject. Additionally, they can be enlarged for use in court and you can use them to capture a split second of time showing a particular activity or some other precise detail.
When you get the subrosa material from the investigator, the best thing you can do is try to find reasonable explanations for the suspect behavior. Look at it the way the suspect’s attorney will. Go over it with a fine tooth comb. Are you sure the person in the film is the claimant? Is the activity different from what the claimant said could or couldn’t be done? Are you sure it isn’t exactly the same? Could the subject have suffered any ill effects from the activity that do not show up on film?
If you find any holes in the evidence, you must either plug them–with more sub rosa, witnesses, or some other strong evidence–or you might have to conclude that you haven’t the necessary evidence for a fraud referral.
One of the best examples of a subrosa that was done quite well was a case prosecuted in Riverside County. Quite a bit of subrosa tape had been taken of a particular claimant performing all sorts of chores at her church. She was sweeping, bending over, and picking up things. She was shaking out the vacuum cleaner bag and cleaning it out. She was even engaged in few instances of horseplay with children in a parking lot. The day of the AME appointment, she was filmed lifting and lowering the hood of her truck and checking the water and oil. She did all of this despite having claimed that she had some neck problems, some back problems, and severely restricted movement. The interesting part of this video is that when she was driven to the doctor’s office by her pastor, she got into the car unaided, then proceeded to put on her neck brace. When they arrived, the pastor handed her a pair of crutches, and she employed guarded motions and exhibited pain behavior as she walked into the doctors office. She was found guilty of workers’ comp fraud.
Subrosa can be an effective fraud-fighting tool, but it is an expensive one. If you chose your cases carefully, plan carefully, give the investigator clear and concise instructions, and evaluate the results carefully, you will get the most for your companies money.
- The more information you can give your investigator, ie; physical description, vehicle, nicknames etc., the better your needs can be served, and in less time.
- If the case has been worked before, tell your investigator, and supply them with a copy of previous reports so efforts don’t get duplicated. There’s no reason to run the same license plate (and pay for it) twice.
What type of background do they do on employees? Continuing education? Is he, or she, familiar with, and comply with, all federal, state, and County Laws, status and regulations? Are they aware of how ADA, FCRA, stalking law, and numerous other laws affect their probative behavior? Are you aware of the exposure you will face if your investigator doesn’t understand, or comply with acceptable investigative techniques. If, not it may be the most maturing experience in your life, both personally and professionally. Review my Employers Guide to Workers' Comp Subrosa for additional information on investigators and the investigation requirements.