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A Sub Rosa video is a type of surveillance video where an insurance company hires a private investigator to secretly—or sometimes openly—record an injured worker’s daily activities. The goal is to capture footage that might show the worker doing things that contradict their claims of being injured.
These videos can range from simple activities like going to the gas station, grocery store, or hardware store, to more recreational outings like attending a concert. In extreme cases, Sub Rosa videos have caught people doing activities that seem completely at odds with their injury claims, such as riding a bull in a rodeo.
However, just because an injured worker is seen being active in these videos doesn’t necessarily mean they’re doing something wrong. For example, if a doctor has advised you to stay active—like riding a bike to avoid weight gain or other health issues—being seen on video exercising isn’t necessarily a problem.
The real issue arises if the video shows you doing something that contradicts what you’ve told your doctor or the court. For instance, if you’ve claimed that you can’t leave the house because of severe depression, but the video shows you out and about, joking with your kids, it could raise doubts about your credibility. However, it’s important to note that everyone has good days and bad days.
This is why I advise my clients not to exaggerate or downplay their symptoms. If your condition varies, it’s crucial to be honest with your doctor about it. A single video showing you on a good day doesn’t necessarily undermine your claim, but having a well-documented history that reflects the full range of your experiences can help protect your case.
Sub Rosa videos can have a significant impact on your workers’ compensation claim. These videos are often used by insurance companies to challenge the severity of your injury and potentially reduce or deny your benefits.
For example, I once had a client whose doctor initially rated their disability at 65%. However, after watching a Sub Rosa video showing the client washing his car and kneeling down, the doctor reduced the rating to 45%. The doctor explained that while the video didn’t show the worker was completely uninjured, it did suggest the worker had more mobility than previously thought.
This reduction in the disability rating significantly affected the benefits the worker was entitled to receive—a situation I sometimes refer to as the “$10,000 car wash” because of the substantial impact the video had on the case.
Sub Rosa videos can be even more damaging if they show you doing something that outright contradicts your claims. For instance, if you’re receiving temporary disability benefits because you’re supposed to be off work, but the video shows you working and getting paid, this could not only lead to your benefits being cut off but could also result in criminal charges for fraud. Misrepresenting your ability to work while receiving benefits is a serious offense and could be classified as a felony.
These videos can also undermine your credibility in court. If you’ve told your doctor that you can’t lift more than a certain amount of weight, but a Sub Rosa video shows you lifting much more, a judge might question the truthfulness of your statements. Credibility is often a key factor in workers’ compensation cases, so it’s crucial to be consistent and truthful about your condition.
Insurance companies often employ investigators to conduct surveillance on injured workers in an attempt to gather footage that contradicts their claims. Common tactics include:
Because of the potential for Sub Rosa videos to impact your case negatively, it’s crucial to be mindful of your actions and fully aware of how these videos could be used against you.
Always follow your doctor’s restrictions and advice, and if you’re concerned about surveillance or have been informed of the existence of such a video, it’s important to consult with an experienced attorney to address the issue proactively.
Sub Rosa videos can be a powerful tool used by insurance companies to challenge workers’ compensation claims. However, the legality of these videos depends on how they were obtained.
If a private investigator breaks any laws while capturing the footage, such as trespassing or invading privacy, the video could be excluded from evidence and might even result in legal consequences for the investigator.
For example, if a private investigator climbed a privacy wall to film over the top of it, capturing footage of someone in a location where they couldn’t be seen from the street, this could potentially be considered a crime. While I’m not a criminal attorney, such actions could fall under criminal invasion of privacy.
In workers’ compensation cases, you typically have limited ability to prevent the insurance company from conducting surveillance as part of their discovery process. However, if the private investigator goes beyond what is publicly visible or invades your private space, there may be grounds to challenge the legality of the surveillance.
For instance, if you discover that a private investigator is following you, you can notify your attorney, who can then alert the insurance company. If the investigator’s actions verge on harassment or stalking, steps can be taken to stop the surveillance.
Attorney Benjamin Helfman is a dedicated workers’ compensation lawyer serving California. For over 30 years, he’s helped clients just like you review and understand sub rosa footage, fight back against misleading video, and ensure their rights as an injured worker are protected.
Have questions or concerns about sub rosa video? Reach out to Leep Tescher Helfman and Zanze at (530) 287-6674 for a free initial consultation today!
California law recognizes that injured workers still retain certain privacy rights. A Workers’ Compensation Appeals Board (WCAB) opinion highlights that while an injured worker has a fundamental right to privacy under the California Constitution, this right doesn’t extend to activities conducted in the front yard of a home that is plainly visible from the street or sidewalk, or in publicly accessible areas like parking lots.
For instance, the court has stated that “there is no reasonable expectation of privacy in the front yard of a residence that’s plainly visible from the street, absent additional factors such as a high wall or a doorbell at the front gate.”
This means that if your yard is visible from the street, it’s generally not considered a private area, and surveillance conducted there is typically permissible. However, if a camera is placed over a high fence to capture footage, this might be considered an invasion of privacy.
The WCAB has also addressed concerns about family members, including minors, being depicted in Sub Rosa videos. The court observed that there’s no reasonable expectation of privacy in the front yard visible from the street, meaning that objections to such footage may not hold up unless privacy was clearly expected and protected.
To introduce a Sub Rosa video as evidence in court, the private investigator must establish a clear chain of custody and testify about how the video was taken. For example, the investigator must confirm that the video remained in their possession and was not tampered with.
In one case I handled, the private investigator who brought the video to trial was not the same person who originally recorded it. The original investigator was no longer employed by the company, which led me to motion for the exclusion of the video as evidence.
The court agreed with our motion, and the video was not admitted into evidence. Naturally, this highlights the importance of scrutinizing how Sub Rosa videos are obtained and whether they meet the legal standards required for admissibility in court.
We strongly advise you to limit your social media use while you have an active workers’ comp claim, especially the posting of photos and videos.
Your social media accounts are discoverable, and will be searched through by insurance companies seeking video and photo evidence that could hurt your case.
For example, posting video footage of you dancing with a full range of motion, rock climbing, or even jogging if you’ve told your doctor you can no longer do those things due to injury can be damaging. Refrain from posting photos and videos of yourself until after your claim is settled, and be honest with your doctor about your abilities and daily activities in the meantime.
When the insurance company provides Sub Rosa video evidence, it’s typically shared with us before being sent to your doctor for review. Our process involves bringing you in to review the video together, ensuring that it’s complete and unedited.
During this review, we’ll ask you questions to better understand the context of the footage, such as, “Do you recall this day?” and “What were you doing during this time?”
This thorough review helps us understand not just what the video shows but also what it may not capture. For example, if the video shows you performing an activity and then returning inside your home, we’ll discuss what happened afterward.
You might explain that after the activity, you were exhausted, needed to lie down, or applied an ice pack to your back. While someone has to trust your account, this explanation can provide important context that the video alone doesn’t convey.
It’s also not uncommon for these videos to capture activities on separate days, sometimes four or five days apart. For instance, many of our injured clients are filmed unloading groceries or performing other necessary tasks for their families.
While the video might show them doing something on one day, it often doesn’t reveal that they were in significant pain afterward and were unable to leave the house for two or three days. This lack of context is crucial, as the film alone doesn’t always present the full picture.
Additionally, there are legal aspects that we carefully examine. We’ll look into whether the same private investigator recorded all the footage, whether the chain of custody was properly maintained, and whether the video was edited in any way. These are critical factors that can impact whether the video is admissible as evidence in your case.
By working closely with you and thoroughly reviewing the Sub Rosa video, we can build a stronger case and potentially challenge the admissibility of the video if it doesn’t meet legal standards or accurately represent the situation.
For more information on Sub Rosa Videos In Workers’ Compensation Claims, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (530) 287-6674 today.
Attorney Benjamin Helfman is a dedicated workers’ compensation lawyer serving California. For over 30 years, he’s helped clients just like you review and understand sub rosa footage, fight back against misleading video, and ensure their rights as an injured worker are protected.
Have questions or concerns about sub rosa video? Reach out to Leep Tescher Helfman and Zanze at (530) 287-6674 for a free initial consultation today!
