The Kayak Video and the Pending Statement
A 44-year-old warehouse associate files a workers' compensation claim alleging a lumbar strain from lifting a tote on January 12. The treating physician restricts him to no lifting over 10 pounds. Six weeks in, the carrier has paid $14,000 indemnity and $9,000 medical. The employer says light duty 'wasn't really available' but has no written job offer or refusal in the file. No recorded statement has been taken. Three weeks ago the claimant posted a public video showing him carrying a kayak overhead to a roof rack, plus photos from a hiking trip. Defense counsel is not yet assigned. The adjuster's surveillance budget is $3,000. Claimant's attorney has now written demanding the entire claim file within 14 days.
1. Sequence the recorded statement, surveillance, and an IME. Justify the order and say what you would not do.
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Do not take the recorded statement first if you intend surveillance. A statement alerts the claimant and counsel, and a coached claimant changes behavior - which destroys the value of observation. The kayak video is already in hand, so the statement should be built to lock in specific denials (maximum lifting, activities, whether he kayaks or hikes) after you have the evidence, so that any inconsistency is documented and material.
Sequence: (1) obtain the employer's light-duty file and any written offer, because a bona fide offer he refused changes indemnity exposure independent of fraud; (2) preserve and authenticate the social media now, before it is deleted; (3) a short, targeted surveillance window (two to three days, including a weekend) sized to the $3,000 budget - broad surveillance is waste; (4) recorded statement, drafted to address the specific activities observed; (5) IME only if the medical restrictions remain inconsistent with documented function after the statement.
Note the mitigating fact: no written light-duty offer exists. That weakens any 'refused work' theory and must be resolved before any fraud allegation is made.
2. How do you preserve and authenticate the kayak video, and what are its limits as evidence?
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Preservation: capture the URL, date and time of capture, the account and display name, and a screen-recorded capture showing the navigation path from the public profile to the video - not just a downloaded file. Use a forensic capture tool or, at minimum, a hash of the file plus a witness. Send a written preservation letter to the claimant's attorney and to the platform where feasible. Do not 'friend' or message the claimant from a personal account; pretexting a represented party is an ethics and licensing problem.
Authentication: you need testimony or metadata tying the account to the claimant. Weak links: a common name, a shared photo. Strong links: the account references the employer, the claimant's own email, or the attorney's own responses admitting the footage is his. Expect counsel to argue the date is wrong or the person is a relative.
Limits: the video shows one afternoon, not capacity over six weeks, and a single lift does not by itself prove the absence of a strain. Its real value is impeachment of a specific statement ('I haven't lifted anything over 10 pounds since the injury'), which is why the statement must be taken after the video is secured.
3. Counsel demands the entire claim file in 14 days. What do you produce, what do you withhold, and on what basis?
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Produce what the jurisdiction requires claimant access to - typically the claim notes, payment records, the medical records the claimant authorized, and the policy - within the demand or the statutory deadline, whichever controls. Withhold, and log as withheld, anything genuinely privileged or protected: attorney-client communications, attorney work product prepared in anticipation of litigation, and SIU materials created for the carrier's counsel.
Critical caveat: privilege is not created by labeling a document 'SIU - privileged.' If the investigation was conducted in the ordinary course of claims handling, many jurisdictions will order it produced, and bad-faith claims routinely pierce the SIU file. Do not create the log retroactively; that is spoliation and an ethics issue.
Send a written response identifying each withheld category and the basis, confirm a litigation hold is in place (including the adjuster's email and texts), and route the response through counsel. Never produce the file piecemeal without a log - a partial production that omits the surveillance while including the note that references it is worse than either extreme.