Personal injury claims: Do the wrongful prevail?

by: Johnelle Rodriguez

People fake injuries all the time. And they get paid for it.

Wrongful claims are common, and because of them, private investigators are usually needed to really dig into the situation to help the parties involved reach a decision as to whether the claimant is being truthful.

“The video doesn’t lie,” Bob Fischer, president of Professional Process Servers & Investigators, Inc., says in regard to the surveillance that takes place in these cases.

And he’s right. What evidence would be more effective than actual footage of the claimant? Video, for the most part, is totally objective and can show whether a person is faking his or her injury.

“We don’t have to do anything to enhance or embellish it,” Bob says. “We just film it, and it speaks for itself.”

The most popular type of fraud we see take place at Professional Process Servers & Investigators, Inc. is workers’ compensation fraud. Right after that are slip and fall cases. There are also medical malpractice suits, staged car accident injuries, and people claiming injuries that are difficult to detect, such as soft tissue injuries.

But we have to keep in mind that not everyone is trying to be devious. People actually do get hurt and deserve some sort of compensation for it. However, we have to keep our eyes open for those who try to beat the system.

So, where do private investigators fit into the picture?

Surveillance is usually done on all cases as part of the case work-up, and most of it is done on slip and fall and traffic accidents, where the person is claiming an injury or is claiming he or she is unable to do certain things or lost quality of life. With medical malpractice, the subject is claiming the doctor performed a wrong procedure, resulting in a loss of quality of life.

“They can’t bowl anymore. They can’t golf anymore. They can’t walk for miles like they used to or bicycle ride,” Bob explains.

Surveillance operators usually go out and surveil the individuals for two or three days, and after that, they’re able to determine whether the person is telling the truth. These services are usually ordered by the insurance adjuster or the attorney, based on the claim and/or statements made by the claimant.

Sometimes, the attorney will simply have a gut feeling that someone is lying. It can be something the person said or the types of bills being turned in for medical procedures that will raise red flags. Just as the adjusters deal with these types of cases all the time, so do attorneys. So, they know what to look for and what’s common or uncommon. This when investigators are brought into the picture and it is decided the case is going to be fought not settled.

To prevent bias, private investigators may avoid asking the client, whether it’s an attorney or an adjuster, what the case is about. Knowing what the claimed injury is could naturally cause investigators to look for certain cues, even if this is not done intentionally. If they have to testify in court, their behinds will be covered if they are oblivious to the injury.

If the P.I. has to get on the stand and is asked, “Did you know beforehand that this individual had a back problem?,” the response would be, “No, we did not.”

It may be asked again, “Oh, you didn’t?”

And the P.I. will respond, “No, we did not.”

Investigators regularly have to appear in court and authenticate their work on these cases. They authenticate the surveillance tapes, verifying they’re the ones who performed the work, what they saw, they did not alter the tapes, this is what they do for a living, and that they are licensed. Dozens of questions are asked while they’re on the stand. And although these investigators and their work are legitimate, others will try to disqualify them based upon their histories or their licensing. However, the attorneys hiring these investigators will usually have counter questions to emphasize and bring to light their credibility.

So, any possibility of being biased toward the claimant can automatically and truthfully be denied if the P.I. is never made aware of the injury when introduced to the case. If the video footage clearly shows the person is lying and does not have a back problem, for instance, the investigator does not want to be accused of pinpointing that portion of the surveillance or setting it up in any way.

Sometimes, surveillance isn’t done at all because what the person is claiming is obvious.

But sometimes, attorneys are so over-zealous to get something on the plaintiff that they’ll ask the investigators, “Well, you know, they’re claiming a back injury. Can you set something up where they pick something up?” This used to happen more often in the past but is not so frequent anymore because there are laws against this type of behavior. It’s ironic: Attorneys are all about getting to the truth of the matter, but this type of request definitely goes against that ideal.

Say the subject is a male, and an attractive girl is strategically placed at the back of the guy’s business. She has a heavy box that she needs help picking up and put into her car or something along those lines. She will wait for the guy to come out and will then flirt with him and ask him for assistance.

“Of course, injured or not injured, guys will do anything to make it with a woman,” Bob says. The guy will go over and pick up the box, and then we see it’s clear there is no obvious injury present.

“To me,” Bob says, “that’s entrapment.” He believes this is how the court has ruled on these types of situations.

There have been times where we’ve done surveillance on people claiming one thing, but the video will show something different. For instance, there was a woman who used to do daily bike rides and claimed she was no longer able to ride her bicycle. She said she couldn’t play with her grandchildren and the like. Surveillance was done, and she was videoed doing a 10-mile bike ride without stopping. Footage was taken from a high vantage point in her backyard, and she was seen diving into the swimming pool. Her family came over, and she was throwing the grandchildren up in the air and catching them.

Once again, the video doesn’t lie.

Aside from surveillance, it’s examined whether the individual is being litigious. Maybe this person has sued in the past for the same kinds of things, possibly in other states where he or she has previously lived. Some people do this professionally. And if this is common behavior for the individual, it will show in the background checks. If what the person is doing borders on criminal behavior, he or she can be arrested and charged with perjury.

Most of the time, when information is presented to the attorney as to what’s going to be presented in court, the attorney will advise the person to drop the case. I’ll give an example of what would be considered criminal. The subject of this story planned a whole scheme and was eventually charged with fraud against the court. Bob believes he did some time for it.

This guy, we’ll call him Sam, was at a bar sitting next to someone, talking about his plot. However, we were unable to record this conversation because taping someone’s conversation intended to be private is against the law. But we were able to testify in court. We were able to get the name of the person Sam was talking to and subpoenaed him as a witness. Then, what the investigator overheard was confirmed.

“So, it’s not always surveillance that gets them,” Bob explains.

Some insurance adjusters will not opt for surveillance because of money. They’ll only have a policy limit of $300,000, for example, while the person is claiming $1,000,000. So, they don’t want to spend the money because they know somewhere along the line, they’ll probably settle for $400,000 or $500,000 in this case. From the adjuster’s standpoint, they only want to spend the money when they feel it’s necessary. If they’ve already decided after reading the case file that they are going to settle, they aren’t going to hire an investigator, and they’re not going to do any work on it.

Not every adjuster wants to roll the dice unless something comes up in discovery, in the medical records, or in background checks, which are always researched, that points them in the direction that this person may have had a claim once before for the same kind of injury. With some adjusters, they will work every case the exact same way. They will spend the same amount of money on every case they do. They will do the surveillance. They will do the background checks. They will do everything necessary to disprove the person’s claim so they can get a defense verdict and not have to pay the limits on the policy.

The sad truth is, if the claimant is lying, he or she will probably get away with it. It’s just the way the legal system works, especially when people are worried about money. So, to be completely broad, the options for someone faking injuries are:

• The person is fined.
• The person is imprisoned.
• The person gets away with it.

Sometimes, a settlement is offered in the beginning, but the defendant’s side may not want to accept and goes for being awarded the large amount of money. However, if they lose the case, they are responsible for all court costs. If they win the case but are awarded less than originally intended, they are responsible for paying those costs as well.

So, as we see here, the role of the P.I. is crucial. And something as simple as surveillance can either make or break the claimant’s assertion. But, there are loopholes in the system, such as the claimant providing medical records and evidence for injuries that are hard to disprove. At the end of the day, whether the deceitful will prevail is all a test of fate and rhetoric.