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Thread Title: Civil Code 1708(g) & Sub-Rosa Video
Created On Tuesday February 17, 2009 1:33 PM

hardluck
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Tuesday February 17, 2009 1:33 PM

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I was injured in 01/17/00. OSHA cited firm. I'm 69 years old. I've had a lumbar spinal fusion, both knees completely replaced, hernia repair
and right shoulder Rotor Cuff repaired. When I was P&S in May 2005 my PTP gave me a prescription for a one year membership to a gym that also had a pool. I was to continue my rehab on my own. The Insurance company approved and paid for the "Private Gym & Pool " facility.

In reading Civil Code 1708(g) it appears to require that the decision to take film or video be based on an "ARTICULABLE" suspicion not simply on a generalized hope that something will turn up in the surverillance.

I'm filmed at the gym and pool doing lower body excercises. The AME's (I've had two) see the video and form an opionion on my physical condition.

My questions are since the Insurance company knew I was going to the gym/pool three times a week, did they have an ARTICULABLE suspicion and valid authority to film me and use the film against me? If not may I have my AA throw out the video of my gym and pool workouts?

I was desperately trying to make myself as strong as possible so I wouldn't require assistance all the time. I had pain even through I took multiple pain pills. I was an Industrial althletic for 30 years and went 28 years of perfect attendance. I mention this only to emphasis the mind set I have about pain. Yes there were days I felt like ____ however I refused to acknowledge it and made it through the day.

STEVEPSCA@YAHOO.COM
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Tuesday February 17, 2009 2:11 PM

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It would be difficult to get the IC to stop with the sub rosas... there is a 'right'.

But just because the films are submitted to the AME for comment, it doesn't mean the films are intended to be used a trial...many times they are not. And, as AME's are readily familiar with the antics used by the IC's to discredit an IW... as long as you are able to provide reasonable explanation, and the AME sees in the films your attempt to 'rehabilitate' yourself... there should be no problem.

If you feel the AME is taking a stance that is unfavorable to you... take the report to your PTP as soon as practical and have him write a report to refute the AME findings...

Otherwise,... don't concern yourself with the sub rosa issue... as long as you are not doing any activity outside the restrictions place on you by your PTP... you have nothing to worry about...
Just be sure to wear nice clothes...you never know who will see the films...

rosellavera
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Tuesday February 17, 2009 7:33 PM

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Hi Hardluck,

Sub-rosa videos are taken to show that an injured worker has over-represented his/her level of disability and or impairment. If your doctor has prescribed the gym and pool exercise, any sub-rosa taken of you following your PTP's instructions will not serve a purpose.

In the recent Almaraz case, the WCAB makes the following important findings: "We will see a lot more use of subrosa films to attack medical formulations". You need not worry in your situation because you are only following what your doctor prescribes in order to assist in your recovery. I can't see how any sub-rosa taken of you doing what your PTP has instructed you to do will affect your case. Please let your PTP know if the exercise is helping. It may be that you will need this type of therapy as future medical care. For example, if you are lifting 10 lbs and you are feeling more pain, tell your doctor. It may be that you will be unable to do such lifting now or in the future. He will then note that in his final report. This way if the defense has sub-rosa of you lifting 10 lbs at the gym, your doctor will document in his report that you complained of pain when performing this activity.

Rose

Edited: Tuesday February 17, 2009 at 7:38 PM by rosellavera

gaiassoul1@yahoo.com
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Wednesday February 18, 2009 7:29 AM

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given the OP's original post, just because you are doing what you believe the PTP prescribed, does not mean there is no right to film...further proven by the AME revising their opinions as to your level of disability.....so you were able to participate either with more duration or intensity then either of the doctors believed if not ONE but count em TWO AMEs revised their opinions....something huge is missing in the fact pattern in this scenario.

As to an articulateable reason for subrosa....I can just look at your body measurements for lower and upper extremities and if they are basically symmetrical with no atrophy, summize you may have less disability. IF you are truly disabled, we see muscle wasting, atrophy and other physical signs of deterioration. So any smart examiner watches all measurements as to body size and range of motion from injury onset to maximal medical improvement to determine level of disability as well.

There has yet to be a case where my gut proved me wrong either.

-------------------------
Ginger

To know how to say what others only know how to think is what makes men poets or sages; and to dare to say what others only dare to think makes men martyrs or
reformers - or both. Elizabeth Charles

hardluck
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Wednesday February 18, 2009 8:30 AM

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Thank you all for your responces to my questions.

The first AME commented on my upper torso muscle deterioration during the physical exam. I didn't find the comment in his report. The video was sent to the Defence's QME, the Defence's Psychiatrist, to the Vocational Counselor and both AME"S.
They all filed supplemental reports stated that I was not as injured as the Medical Records (Mri's, Cat Scans, and PTP reorts) reported.
The QME went so far to write that I was excersing both upper and lower extreminities. I never did any "upper extreminities" excersises!
I only performed the routines which had been taught to me while at land and water physical therapy. Everything I was taught was to strength my lower torso. Every Doctor who has had me lay down on the exam table has had to provide me with assistance to sit up & yet none of thier reports note it.

With two months of membership remaining I gave up going to the gym/pool as the pain while excersing was overriding the pain pills effectiness. I notified my AA of why I was quiting by letter.

I'm now being seen by a Chronic Pain Doctor was has me taking medications which can't be found on the WEBMD prescription list nor was my personnal Kaiser Permente Doctor able to locate them on thier data base.

My next appointment I plan to ask him what these medications are doing to my liver as they are doing very little to releive my pain.

In closing, yesterday I received a "Electric Power Lift Recliner". The UR Doctor who reviewed my medical history acknowledged that it was apparent I would have difficulty getting up from a sitting position. His judgement was based on the Medical Data and not a video in which I'm trying to rehab myself. It's a crazy world this Workers' Compensation. I just wanted my ability to be independent. When the Physical Therapist told me I had to work through the pain to get strong I did it, only to find that they filmed me and used it against me.

I must inquire if the Defence sent a copy of my PTP'S gym/pool prescription along with the film. Ten to 1 they will claim a clerk "forgot" to include it.

Thank You all again. This almost feels as good as going to confession.

rosellavera
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Wednesday February 18, 2009 3:57 PM

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"I'm filmed at the gym and pool doing lower body exercises. The AME's (I've had two) see the video and form an opinion on my physical condition."

What was their opinion? Did you get a re-evaluation before they formed the opinion? Your attorney must have known ahead of time that the DA was sending the films to the AMEs. Your attorney should have reviewed the films with you. If you were performing these exercises and your pain was increasing, did you tell your PTP? Did your PTP issue a supplemental report addressing the pain with the exercises? If he didn't, he should have, and the AMEs should have had the opportunity to review the supplemental report.

I have worked on the defense side for the past five year. Sub-rosa film are almost always taken even in cases involving serious injury. I have worked in this field since 1978 and have seen many reforms. There have been many changes since 1978. The bottom line is that the IC will do whatever they can to defeat the injured worker's claim. There are some decent adjusters out there that will do the right thing, but they are the exception.

STEVEPSCA@YAHOO.COM
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Wednesday February 18, 2009 5:11 PM

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As an IW myself, and having talked/message boards with 100's of others, I can tell you that being filmed is pretty much to be expected after about 3 to 5 months into your claim... depending of course on the complexity of your claimed injury/illness.

The ER/IC is entitled to, and is going to develope the record... they are going to build on 'discover'....this will be through deposition, and sub rosa, as well as medical reports of your PTP, and/or their own doctors...DQME, AME, etc.

What you will also find is that few films actually make it to trial, and the AME/QME's are familiar with the tactics used by PI's in editing the films to suit the particular needs of the ER/IC.

What has amazed me is, in my case, and no doubt many others... I wasn't in most of the tapes submitted to the AME for reiview (!), and the little bit of tape I appeared in was not actually relative to my injury or activities.
That is not to say this is the 'norm', or that sub rosa has not been effective in exposing those IW's that are malingerers, or posing in their claim of 'disability'.

My point is, IF you are not performing activities out side the restrictions placed on you by your PTP, and/or not doing things you say you cannot do, or 'never do', due to your i njury... you are not in jeapordy of risking your entitlement to benefits, and should have no fear.

IF you experience an unfavorable report submitted by a defense evaluator...whether AME or DQME...or PQME these days... if the facts are clear, the unfavorable report can easily be refuted by supplemental reporting by your PTP.

I am curious on one issue here however... as you have an AME... 2 in fact.... why are you being evaluated by, and the sub rosas submitted for review by a DQME ?.... DQME"s are out the door once you have a AME brought into your claim.

Rose...
I just want to tell you how I, and I assume most IW's on these boards, appreciate you presence and posting 'over here'... I/we appreciate your impartial stance on the problems we IW's have in general, and actually it's difficult to tell that you are working for the defense in most cases. So, THANK YOU for your expertise...

Ginger... you know how we feel about you, and all of your continued assistance... THANK YOU to you as well. !!

Sometimes I think we... as a group (IWs) are remiss in our taking the opportunity to thank those who take the time to help...

rosellavera
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Wednesday February 18, 2009 6:22 PM

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Thanks Steve and Feeling it!

Edited: Thursday February 19, 2009 at 9:36 AM by rosellavera

feelin it
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Thursday February 19, 2009 7:56 AM

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Steve you are 100% correct, thanks to all that help us ,you are greatly appreciated for your help and guidance!!

thanks as always, feelin it

RBaird
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Thursday February 19, 2009 11:21 AM

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I also get the feeling that something is being left out of the picture. It is regrettable that you have been p&s for over three years and your case is not finalized. I was not generally impressed by the quality or probative weight of many but not all of the sub rosa films I saw. I would add that if there was a psychiatric AME or defense (?) psychiatrist, that physician's opinion on the impeachment quality of sub rosa would be somewhat out of the physician's expertise. Have you explored treatment by a specialist in physical medicine/physiatrist? (The latter field is not psychiatry.) Exercise therapy in a warm pool probably more palatable to defendants than a power lift assist chair. If you have AME's, we have to assume you are represented. I have no desire to interfere in that relationship and think your first resource for answers should be your attorney, not this board.

hardluck
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Thursday February 19, 2009 1:45 PM

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Roswllavera and all others who have respondent, I sincerly thank you for your input.

My medical files i'm told is 10 inches high. It would be too much to cover here but I will try to give you a summary starting with the Qme. Qme issued a supplemental report after reviewing the sub-rosa stating that I was not as disabled as he orginally reported. Supplement report is one year after his exam and given an WPI of 60%. QME orginal report plus supplement report is forwarded to 2nd AME and 1st AME. 1st AME report was exceeding late in arriving within the alotted time frame so I instructed my AA to file for a hearing. At the hearing both parties agree to a new AME. The main reason I pushed for a new AME was because of the way I was treated at his office (Example I was told to strip down to my underwear and put on an exam gown. I waited in the exam room from 8:30 A.M. until 1:30 P.M. and was cold even when I piled my clothes on top of myself as I lied on the exam table. No one checked on me nor even came in to update me when the Doctor would see me even through I heard him continiously on both sides of the room.) He gave me a WPI of 75%. Three months later he writes a supplemental report which states I'm not doing anything which doesn't comply with my PTP"s restrictions. He also states " the excersises he is performing are actually beneficial to him"

Second AME was promp & professional however he was only provided with my medical records up through 2002. I was injured in 01/17/2000 and P&S in 5/24/05.His report states that all the depositions from all parties involved helped my case however the videos hurt it. He gave me a 59% WPI. Report states i can only do sedetary work and I wasn't a canidate for Voc. rehab for there was very little chance I could particpate. Voc. counsular also stated I wasn't a canidate for retraining.

I then instructed my AA to request an other hearing on how the 2 AME was able to reach his conclusion without all the current medical data. If medical images were not provided he had the authority to request new ones but failed to do so.

The second AME was depo. and it was revealed that the Defence had excluded all the medical records from my PTP's office visits from 2003 up to the most current. It was agreed that the Defence would provide all the missing documents and a supplemental report would be written.

I only went back to my PTP a year after I started my gym/pool routine because I thought since I've been P&S ( which I thought meant there was nothing else medically they couod do to me to help). When I did return a MRI and Cat Scan revealed my lumbar had change drastically and not for the better. The first words out of my PTP after reviewing the results were "Are you ready for an other surgery?". He requested a Discogram be done but it was turn down by the UR process as an unproven procedure. I had a Discogram before in 2001 and it revealed which disk was touching the nerves and a spinal fusion was done. Amazing!

PTP's staff saw the video however a rebuttable was never written. My PTP and two other Doctors see an adverage of 165 patients a day when they are in this locations office. Each Doctors see an adverage of 55 patients which in in a 8 hour day means they spend an adverage of 8.7 minutes per patient. My AA referred me to my PTP who is soppose to be one of the finest.

I'm currently being treated by a Chronic Pain Specialsit and am awaiting the arrival of the 2nd AME's supplemental report. I know I will have to challenge the AMA guide lines based on the latest EN Blanca decisions' . When I 've called my AA office for guidance his para-legal has tactfully to;d me that I'm only one of 250 so I have to be patient.

I'm exhausted so I must go lay down with my wedge pillow and releive the pressure on my back.

Thank you again for for time and advice.

postscript2
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Friday February 20, 2009 10:43 AM

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Just remember the "golden rule:"

CAN'T NEVER did ANYTHING, until he got CAUGHT...

It's always wise not to say you can not do anything at all, unless you truly can't. Better to say I can or attempt to do xyz, but it causes pain, etc. Saying NEVER is even worse!

As a C/A (injured now), I will tell you that surveillance is as routine as a flu vaccination. This is especially true for older cases with Stipulated Awards or very high exposure. It is usually prompted by something in a medical report or "hear-say" from outside sources... Random surveillance is a total waste of time and money, so these "tips" are what will lead the defense to pursue the filming.

Although "ironic" as heck, a gym is a perfect set-up to find just how physically active a person is, even though it is recommended and prescribed by a doctor. Sure is a catch-22 for the I/W.

At any rate, I hope you feel better, "hardluck" and receive some bona fide treatment to help with your pain. Take care,

LCS

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