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Sub Rosa is a Latin term meaning “under the rose”, a flower that is a symbol of secrecy. In Workers’ Compensation, the term Sub Rosa then refers to the secret act of surveillance of a person. The Sub Rosa investigation of an employee who has made a workers’ compensation claim is a powerful tool to potentially document evidence against the claimant. The intent of surveilling the injured party is to catch the person in unguarded moments and document that person’s true physical limitations in order to confirm that the entire claim or a portion of the claim is fraudulent. The goal is to minimize or distinguish totally the amount the insurance company pays out on claims.
In an increasing number of claims, insurance companies are hiring private investigators to stake out the claimant’s home or follow the claimant around for several days to weeks to gather evidence on film to undermine the claim. It is important to be aware of the possibility that if you filed a workers’ compensation claim, you may also be under a Sub Rosa investigation. This information is not provided here to encourage in any way fraudulent behavior, but rather to point out that these investigations could unfairly prejudice your claim. Many times, the video evidence gathered does not tell the whole story of your injury. The surveillance is designed to only present evidence that the claimant is not really injured; video consistent with being injured is not presented.
Generally, yes, it is legal. However, as random surveillance would be an invasion of privacy, there is a foundational requirement for films and videos to be admissible. The evidence cannot be a mere fishing expedition. Civil Code §1708.8(g) requires that there be a “showing” that is supported by “articulable suspicion of suspected illegal activity, violation of an administrative rule, fraudulent insurance claim, or other suspected fraudulent conduct or activity”. Additionally, the Business and Professions Code §6521 requires that investigators be licensed.
If video or photographic evidence has been obtained by the insurance company, they must advise the claimant’s counsel that it exists and afford the opportunity for counsel to view it before it gets offered to the doctor or to the WCAB. Fairchild Aerospace v WCAB, 64 CCC 1497 (1999). However, they do not have to disclose such evidence prior to taking the claimant’s deposition. Downing v WCAB, 16 CWCR 76. This ability to not disclose at that crucial time could greatly affect your deposition testimony as the evidence may potentially be used against you later to impeach statements you made on the record.
If you believe you are under Sub Rosa surveillance, it is important to speak to our knowledgeable and skilled workers’ compensation attorneys immediately. The film is hearsay. It purports to be a true representation of the subject’s activities at the time it was taken, but the evidence needs to be authenticated by laying the proper foundation.
It is therefore crucial that you obtain an attorney to represent you that is knowledgeable about the use of such evidence and the legitimacy of it being admitted against you or not.
Please contact us today for a FREE 30-minute consultation. Our workers’ compensation attorneys are available to meet with you during business hours, evenings, and weekends. Allegiance Law is located in San Francisco, but we will be happy to drive and meet you. You may contact Allegiance Law, at 415-404-6395. Or you may contact us by filling out the client inquiry form on this page.