Last week’s Straight Track article (“Smile: You're on Candid Camera: The Admissibility of Video Surveillance”) discussed the problems encountered by FELA Designated Legal Counsel when the railroad has surveillance video of an injured client. This week’s article will talk about how to keep the railroad from having the video in the first place.
Whether you live in a rural area or in a metropolitan city, with today’s high tech equipment the railroad will have you under surveillance if it wants. Know for a fact that hired investigators could be more than half a mile away and still see the freckles on your face. You might be thinking that the railroad can’t keep every injured railroad worker under surveillance. That’s true, but you can’t be sure that you are not one that the railroad is recording. And, while the railroad investigators tend to favor vans with blacked out windows, you can’t always be sure of this, either.
How the railroad makes its decision to do surveillance on a particular injured railroad worker may surprise you, too. For example, the claim agent will authorize surveillance after:
- He delivers your advancement check and sees that there are home repair projects going on around your house;
- It is overheard at the rail yard that a fellow employee saw you at a ball game or the mall; or,
- Your doctor gave the impression to the railroad that you might be able to return to work.
If the railroad gets the idea that you can work but aren’t, you are a prime candidate for surveillance.
COMMUNICATE WITH YOUR DOCTOR
One way to avoid giving the railroad the wrong impression that you can return to work when you really can not, is to ask your doctor what you can and can’t do, and be specific. In the vast majority of cases where surveillance tapes cause problems, the injured employee didn’t understand his limitations or his doctors didn’t understand his work. It’s not unusual for a client, when confronted with his surveillance video, to say, “That doesn’t show me doing anything my doctor said I couldn’t do.” The problem isn’t in trying to hide something from the railroad, but it is in not communicating something important to your doctor.
Make sure both you and your doctor understand your limitations and your activities during recovery. Have your doctor write those items into your chart. Ask if you can play golf or baseball, garden, bale hay, fish or whatever it is that you like, need or want to do. Tell him what is involved in those activities. If you have to canoe for a half mile to get to your favorite fishing spot, let your doctor know this. Don’t assume that you can do something because your doctor hasn’t specifically told you not to do it – ask! Don’t do something until the doctor specifically says, and notes in his records, that you are capable of doing it.
With regards to your work, give your doctor a job description (available on our Web site at www.hoeyfarina.com) and discuss with him in detail what you do on your job / your work duties. Most doctors are unfamiliar with how physically demanding your railroad work can be. Tell your doctor exactly what your work involves so he doesn’t mistakenly say you can do things you’re not physically capable of because of your injury. If your doctor says you can walk, make sure he understands the walking conditions at your work. Explain what ballast is, how it slopes and how if not properly tamped or screened it rolls under your feet. Perhaps your walking should be prohibited altogether until you are further along in your recovery.
Also, advise your doctors that you want them to protect your Doctor / Patient right of confidentiality so they don’t inadvertently discuss your case with the claim agent, someone from the railroad’s medical department or a case manager hired by the railroad to monitor your treatment. Unless you inform them otherwise, your doctors may mistakenly believe that they must talk with the railroads people because it’s proper and consistent with most states’ workers’ compensation laws. This is not the case under the FELA and you need to inform your doctors of this.
HAVING A GOOD DAY
If the railroad is video taping you, one way to avoid them from obtaining any potentially damaging film, is to follow your doctor’s restrictions to the “T”. It may be tempting when you are having a good day and are restless to do a little more than you should. The problem with that is for all those weeks the railroad’s surveillance team monitored your house without getting one foot of incriminating video, your “good day” is now on tape. What won’t be on tape, though, is your icing down your knee or back later that night, lying in bed in pain – paying for your “good day.” So, if you don’t want to be an uncompensated film star, remember to do only those things your doctors say you can do.
LEARNING FROM SOMEONE ELSE’S MISTAKES, NOT YOUR OWN
Unlike the videos on the television program America’s Funniest Home Videos, the only ones laughing at the surveillance videos are the railroads and their laughing at the injured workers’ expense. An unsympathetic jury after watching a video of one of our client doing athletic feats that he claimed he could not do, awarded him nothing. Another client on film moving a refrigerator that he couldn’t afford to hire someone to move recovered less than half of the railroad’s pretrial offer. Yet another client who couldn’t raise his arm above shoulder height received $0 after the jury watched him playing baseball (even though it was slow pitch and he didn’t raise his arm above his shoulder). Still another client who lived in a trailer with rickety metal steps and on a couple of “good days” built some wooden steps in full view of the camera a block and a half away had to settle his case for $30,000 less than what had been the bottom line (the steps weren’t worth $30,000).
We hope you get the picture. Surveillance can be devastating to your case. It’s simply not worth the risk of exceeding your doctor’s restrictions. Remember, be aware of surveillance; communicate with your doctors; focus on your recovery; and contact Hoey & Farina at 1-888-425-1212 when you have any questions.