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Group seeking to bring changes to Montana work comp fraud investigations

Some of the most valuable tools in any workers' compensation fraud/employee fraud investigations are video recordings catching claimants participating in physical activities that their injuries should otherwise prevent them from doing.

For example, fraud investigators may record a worker who claimed to suffer a severe neck injury playing softball or a worker who claimed to endure a debilitating knee injury climbing a ladder to clean the gutters on their house.

While these recordings undoubtedly have strong evidentiary value when it comes to demonstrating work comp fraud/employee fraud, a group of attorneys in Montana is now seeking to control their use.

Specifically, this group of 10 attorneys - along with five work comp claimants - filed a petition with the Montana Supreme Court earlier this month, seeking to limit the ability of fraud investigators with the Montana State Fund to share these surveillance video recordings and other confidential information with the physicians of work comp claimants.

According to the petition, these fraud investigators routinely violate the privacy rights of work comp claimants by failing to secure a court order permitting them to share the surveillance video/confidential information with physicians and by failing to tell the claimants that they will be sharing it.

"In the overwhelming majority of those cases, no Application was filed, and no District Court Order of any kind was obtained authorizing the dissemination of confidential criminal justice information to treating physicians or anyone else," reads the petition. "This practice unlawfully invades, taints and irreparably harms the confidential and private relationship between physician and patient."

The group also claims that the conduct violates the Montana Rules of Professional Responsibility, the Montana Constitution, State Fund protocols, and the Montana Criminal Justice Information Act.

Interestingly, the remedy being sought is not monetary damages but rather an order by the Montana Supreme Court 1) prohibiting the State Fund's Special Investigative Unit from releasing any surveillance video/confidential information unless it can demonstrate that it is doing so legally and 2) prohibiting anyone who has received such material without a court order from using it in any capacity.

The group is also requesting that the Montana Supreme Court assume a supervisory capacity over First District judges in Lewis and Clark County, arguing that these judges are issuing unconstitutional orders regarding the release of the surveillance video/confidential information.

Both State Fund and the First District were given until mid-September to respond.

Stay tuned for further developments in the area of workers' compensation defense law ...

Workers compensation fraud/employee fraud is a very serious crime. If you suspect that such a crime has been perpetrated against your organization, you should strongly consider speaking with an experienced workers' comp defense attorney.

This post was provided for informational purposes only and is not to be construed as legal advice.

Related Resources:

Insurance Journal "Lawyers claim Montana workers' compensation investigators violate privacy" Aug. 30, 2011

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