By William Zachry, Senior Fellow, Sedgwick Institute
This write-up is intended to provide insight into Sub-rosa, its uses and limitations, while also further clarifying how the advanced capabilities that sub-rosa enables can be used in the claim investigative process.
The Latin phrase sub-rosa means “under the rose.” It also means secrecy and confidentiality. As it relates to workers’ compensation, Sub-rosa is the term best used to describe undercover investigations.
Sub-rosa is a surveillance investigation which operates under the radar of the public. It usually consists of having an investigator go into the field, observe and film an injured worker performing physical activities. This activity may be inconsistent with the physical limitations described to (or by) the treating physician or the information provided during a deposition of the injured worker.
There are strict privacy laws at the Federal, State and local jurisdiction levels, which limit the filming of people in their homes or in venues where privacy can be assumed. There are also strict laws forbidding entrapment (formally known in the industry as rope jobs).
It is easy to believe that doing Sub-rosa is in direct conflict with the employee advocacy process. However, employee advocacy does not mean that employers should pay for fraudulent claims or overpay for benefits for which they were not responsible. Sub-rosa is one of the tools that can be used, in a targeted manner, to make sure that employers (insurance carriers) only pay the benefits for which they are responsible.
Sub-rosa can help determine if the worker is “double dipping,” which refers to someone working while he/she is receiving temporary disability benefits. The results from Sub-rosa have also been used to reduce potential Permanent Disability exposure, which typically takes place when information from a doctor’s report or the injured worker’s deposition indicates that the stated permanent disability or physical restrictions, greatly exceeds the likely result of the injury or medical treatment. Sub-rosa can also be used to help manage other exposures, such as Medical Care, if the injured worker’s physical activity is believed to exceed the physical limitations prescribed by the doctor.
Occasionally, Sub-rosa has even been used to help determine if the injury is compensable. However, Sub-rosa typically cannot determine if an injury actually took place.
Sub-rosa can also help identify claims that are completely fraudulent. This solves the problematic situation that asks employers to pay for benefits due to injuries or disabilities they did not cause. Allowing fraud to exist increases system costs and undermines the integrity of the system.
Jurisdictions throughout the United States have different rules and regulations concerning the acceptance and use of Sub-rosa. This even pertains to local court rules concerning when the workers (or their attorneys) may have to be notified of the existence of Sub-rosa film or have access to copies of the results of the investigations.
To create attorney client privilege, which insures legal confidentiality, in most jurisdictions, the investigator must work directly under the instructions and control of an attorney.
Over the past few years, the camera quality and technology (remote controlled video cameras and drones with video capability) has changed dramatically. With the new technology, it can be easy for an inexperienced investigator to breach the laws concerning privacy. Therefore, the investigator must be aware of the latest laws, rules and regulations and limitations on their activity concerning privacy and entrapment.
With today’s technology it is easy to share data files containing the results of the Sub-rosa. However, with the ease of sharing of the files it may result in accidently inappropriate sharing, which may shatter any privilege for confidentiality of the Sub-rosa results.
How to maximize effectiveness of Sub-rosa
Prior to attempting Sub-rosa, the results of any investigation should be carefully planned.
It is important to treat the Sub-rosa Partners as a professional partner in the administration of the claims process. Quality investigators know the best days, times and locations to reach success. Skilled Sub-rosa vendors will usually obtain better results. Though there may be a potential conflict, they should be involved in the decision to do Sub-rosa and should understand the plans for how their work product will be used.
Employers, defense counsel and claims handlers should also understand the operational and legal limitations of Sub-rosa. Even with the best information, not all Sub-rosa efforts turn out successful.
It’s important to recognize that there are limitations to using Sub-rosa. For example, Sub-rosa will not be able to determine, the exact location of where an injury took place.
The reason for limited results from sub-rosa, is that it often begins with unrealistic expectations. These can be compounded by inappropriate instructions between the claims defense team and the Sub-rosa partner. Sub-rosa should not be used because the claims handler, defense counsel or employer is angry with the worker for having had the injury, or how the worker has behaved during the claims process.
Failures in Sub-rosa also take place because some sub-rosa aggregators having limited the necessary and appropriate communication between the front-line investigators and the claims team. Other than confidentiality there should be few limitations of communication between the Sub-rosa vendor and the claim handler.
The process for determining if Sub-rosa is needed, should be through creating a consensus of opinions by the front-line examiner, the claims supervisor, the defense counsel and, if appropriate, an employer representative. There are differing opinions on including medical professionals in the conversation on the need for Sub-rosa, because some physicians believe that it would be their duty to tell the worker if they knew that sub-rosa was being done
The examiner and the defense counsel should review the current state of the claim, review the exposures and create an estimate of how much a quality Sub-rosa result might result in savings on the claim, as well as determine how much the Sub-rosa will potentially cost. At this time there should also be a discussion on potential impacts a positive Sub-rosa finding may have on the claim, and even other claims by the same employer.
Use of Sub-rosa
One of the most important strategies in claims management is determining the best use of the Sub-rosa film. Early disclosure, or the inappropriate use (or misuse) of Sub-rosa films, can result in a waste of effort and incur significant expenses involved in obtaining the films.
Successful Sub-rosa can be used by showing the films to the applicant, defense, AME doctor to refute his/her findings or to change his/her mind on the nature and extent of PD. It can also be shown at the court or in a deposition to refute the credibility of the injured worker. Occasionally, having a Sub-rosa investigator show up at a hearing or deposition will result in faster claims settlements, without necessarily having to show any films.
Sub-rosa has also been used to confirm the nature and extent of disability as outlined by the applicant medical reports. This result may justify higher reserves and payments of disability on that claim.
Check list for Success
When the file is closed, do a post-mortem on the effectiveness of the Sub-rosa process. What worked? What did not work? What would you do different the next time? Include the Sub-rosa vendor in the post-mortem so everyone can learn from the successes and failures. Give feedback to the Sub-rosa Partner on what they did well and what did not work.