Recovering from a workplace injury does not always mean being unable to perform every daily activity. Someone may be able to carry groceries, drive, or complete a household task while still experiencing pain or being unable to sustain those movements throughout a workday. When an insurance carrier records only a brief portion of that activity, the footage may not tell the whole story.

In New York, surveillance can be submitted to challenge a workers’ compensation claim, a claimant’s degree of disability, or continuing wage-replacement benefits. However, video footage does not automatically prove fraud or require the Workers’ Compensation Board to deny benefits. A Workers’ Compensation Law Judge considers the surveillance alongside medical records, testimony, and other evidence before deciding what the footage establishes.

Key Takeaways: Can Surveillance Be Used to Deny a New York Workers’ Comp Claim?

• Surveillance can affect a claim, but it does not decide the case by itself. The Workers’ Compensation Board determines whether the footage is relevant and how much weight it deserves.
• Recorded activity does not automatically establish fraud. A violation of Section 114-a requires a knowing false statement or representation about a material fact made to obtain compensation or influence a benefits determination.
• Surveillance may affect different parts of a claim. Depending on the evidence, it may be used to dispute whether an injury occurred, the claimant’s degree of disability, or eligibility for continuing wage-replacement benefits.
• Context matters. Medical evidence and testimony may show that a recorded activity was brief, intermittent, painful, or consistent with the claimant’s restrictions.
• A Section 114-a violation can carry serious penalties. These may include forfeiture of benefits connected to the misrepresentation and, in sufficiently egregious cases, disqualification from future wage-replacement benefits.
• Carriers must follow Board procedures when using surveillance. New York has required disclosure of the existence of surveillance materials before taking the claimant’s testimony.

How Can Surveillance Affect a New York Workers’ Comp Claim?

An insurance carrier may use surveillance footage to question statements made by a claimant about an injury, physical limitations, work activity, or ability to perform daily tasks. The potential effect depends partly on the stage and subject of the case.

Before a claim is established, a carrier might argue that the footage contradicts the claimant’s description of the accident or alleged injuries. In an established claim, surveillance is more commonly used to dispute:

• The claimant’s degree of temporary or permanent disability
• Eligibility for continuing wage-replacement benefits
• Statements made to treating providers or an independent medical examiner
• Undisclosed employment or other income-producing activity
• The claimant’s reported range of motion or physical restrictions
• A possible violation of New York Workers’ Compensation Law Section 114-a

The carrier may ask a medical examiner to review the footage and reconsider an opinion about the claimant’s disability. The claimant’s treating provider may also review it and explain whether the recorded movements are consistent with the injury and documented restrictions. Ultimately, the Workers’ Compensation Board decides how the evidence affects the claim.

When Does Surveillance Support a Section 114-a Allegation?

New York Workers’ Compensation Law Section 114-a applies when a claimant knowingly makes a false statement or representation about a material fact for the purpose of obtaining compensation or influencing a decision concerning compensation.

A carrier alleging a Section 114-a violation must establish more than the fact that the claimant performed a physical activity. The carrier generally must connect the surveillance to a material statement, representation, or omission. Depending on the circumstances, that could include allegations that the claimant:

• Deliberately exaggerated physical limitations
• Denied being able to perform activities shown in the footage
• Failed to disclose work or other income-producing activity
• Misrepresented symptoms during a medical examination
• Withheld material information about physical capabilities from a physician or the Board

A difference between a claimant’s reported limitations and the recorded activity can raise questions, but it does not automatically prove that the claimant knowingly lied. The Workers’ Compensation Board evaluates credibility and determines whether the evidence establishes the elements of Section 114-a.

Why Context Matters When the Board Reviews Video Evidence

Surveillance footage may capture what a claimant did, but it does not always show how long the activity lasted, how much pain it caused, or whether the claimant needed to rest afterward. It also may not establish that the activity could be repeated throughout a workday.

New York decisions illustrate why the surrounding evidence matters. In Matter of Feisthamel v. Marcy Correctional Facility, surveillance showed a claimant driving, exercising at a gym, and using a riding lawn mower. The Board found no Section 114-a violation because the activities were sporadic, consistent with the claimant’s treatment, and not contrary to what he had reported about his intermittent abilities.

Similarly, in Matter of Rosario v. Consolidated Edison Co. of New York, the court upheld the Board’s finding that surveillance was of limited value because it did not show the claimant performing activities inconsistent with his medical restrictions.

These decisions do not mean that surveillance is harmless in every case. Instead, they demonstrate that the Board must consider what the footage actually shows and whether it contradicts a material representation made by the claimant.

Can Surveillance Lead to the Loss of Workers’ Compensation Benefits?

Surveillance can contribute to a reduction, suspension, or denial of benefits when it persuades the Board that the claimant’s medical condition or degree of disability differs from what was reported. It may also support penalties if the Board finds a violation of Section 114-a.

Section 114-a provides for a mandatory forfeiture of compensation directly attributable to a claimant’s false statement or representation. For example, if a claimant knowingly concealed work activity while receiving wage benefits, the Board may determine that benefits paid during the relevant period must be forfeited.

The Board may also impose a discretionary penalty. When a misrepresentation is sufficiently serious or egregious, that penalty can include permanent disqualification from future wage-replacement benefits associated with the claim. Permanent disqualification is not automatic, and the Board must provide a sufficient explanation for imposing such a severe penalty.

These penalties concern indemnity or wage-replacement benefits. Questions involving ongoing medical treatment for an established injury may require a separate determination.

What Must a Carrier Disclose About Surveillance?

New York has established procedural protections governing surveillance evidence. In Matter of Monzon v. Sam Bernardi Construction, the court recognized the Board’s rule requiring an employer to disclose the existence of surveillance materials in its possession before taking the claimant’s testimony.

A failure to provide the required disclosure may result in the surveillance evidence being excluded. However, the exact consequences depend on the timing, the procedural history, and the Workers’ Compensation Law Judge’s ruling.

This disclosure rule does not necessarily require the carrier to reveal planned surveillance before it occurs. It concerns surveillance materials already in the employer’s or carrier’s possession when the claimant’s testimony is taken.

How Is Surveillance Addressed at a Workers’ Compensation Hearing?

When a carrier raises a surveillance-related dispute, the Workers’ Compensation Law Judge determines what evidence is necessary to resolve it. That may include:

• The surveillance footage and investigative reports
• Testimony from the claimant
• Testimony from the investigator who recorded the footage
• Medical reports addressing the claimant’s restrictions
• Testimony or depositions from treating providers and independent medical examiners
• Evidence concerning employment, income, or other activities shown in the recording

The claimant may challenge the carrier’s interpretation of the footage and present medical or testimonial evidence explaining the recorded activity. The judge then evaluates the surveillance with the rest of the record.

Under New York Workers’ Compensation Law Section 118, the Board is not bound by the technical rules of evidence that ordinarily apply in court. The judge may develop the record in the manner necessary to determine the parties’ substantial rights.

If a party disagrees with the judge’s decision, that party may seek administrative review by a Board Panel. An application for Board review generally must be filed within 30 days of the filing date of the judge’s decision.

How Can a Claimant Respond to Surveillance Evidence?

A claimant should not assume that surveillance footage automatically defeats the claim. The response should focus on what the recording actually shows and whether it contradicts any material statement.

An attorney may:

• Review the disclosed footage and investigative reports
• Compare the investigator’s description with the recorded activity
• Determine whether the carrier complied with the Board’s disclosure requirements
• Identify gaps in the recording or context not visible on camera
• Ask a treating provider whether the activity is medically consistent with the claimant’s condition
• Prepare the claimant to explain the activity accurately
• Challenge whether the evidence establishes a knowing material misrepresentation

Claimants should continue to follow their healthcare provider’s restrictions and provide honest, consistent information about what they can and cannot do. It is important to explain intermittent abilities accurately rather than describing limitations in absolute terms.

If an adjuster, investigator, or carrier representative asks about surveillance footage, a claimant should avoid guessing or making rushed statements. A represented claimant can speak with an attorney before providing a detailed response, while continuing to comply with Board orders and other legal obligations.

Can Investigators Record You at Home?

Investigators generally may observe and record activities that are visible from public places. For example, an investigator may record someone leaving a home, driving, shopping, or performing an activity that can be seen from a public street.

Investigators may not trespass onto private property merely to obtain a better view or use investigative methods that otherwise violate applicable law. Whether particular surveillance was lawfully obtained or may be considered in a workers’ compensation proceeding depends on the circumstances.

The Workers’ Compensation Board is not bound by the same technical evidentiary rules used in civil courts, but questions about how footage was obtained can still be raised before the Workers’ Compensation Law Judge.

Social Media May Also Become Evidence

Surveillance is not limited to video recorded by a private investigator. Carriers may also review publicly available social media posts, photographs, videos, location tags, and other online material.

A post may be used to question a claimant’s reported restrictions or show participation in work, travel, recreational activities, or other events. However, like physical surveillance, a photograph or isolated post may lack important context. An older photograph could be reposted during the claim, or an image might show only a brief activity that caused pain afterward.

Claimants should consider limiting new posts and reviewing their privacy settings. They should not delete, alter, or conceal existing content without speaking with an attorney because removing potentially relevant material can create a separate evidence dispute. More information is available in our guide to social media and New York workers’ compensation claims.

Frequently Asked Questions About Surveillance in New York Workers’ Compensation Cases

Can a Short Video Be Enough to Deny a Claim?

A short recording may affect a claim if it clearly contradicts material testimony or medical representations, but it does not automatically require denial. The Board considers the footage with the medical and testimonial record.

Should I Stop All Physical Activity While My Claim Is Pending?

No. Claimants should follow their healthcare provider’s instructions and be truthful about their abilities. Being able to perform some daily activities does not necessarily mean someone can return to regular employment or sustain those activities throughout a workday.

Can Surveillance Prove Workers’ Compensation Fraud?

Surveillance may support a Section 114-a allegation, but the footage alone does not automatically prove a violation. The evidence must establish a knowing false statement or representation concerning a material fact made to obtain compensation or influence a compensation decision.

What Should I Do If Surveillance Is Raised at My Hearing?

Speak with your attorney about the footage, the investigator’s report, and the statements the carrier claims are inconsistent. Medical evidence and testimony may help explain why the recorded activity does not contradict your actual condition or restrictions.

Need Legal Help? Brandon J. Broderick, Attorney at Law, Is Here for You

At Brandon J. Broderick, Attorney at Law, we understand how stressful it can be when an insurance carrier uses surveillance to question your injury or your need for benefits. Our attorneys can review the footage, examine the surrounding evidence, and help you respond to allegations that could affect your claim.

Our team is available 24/7 to listen to your story and explain your options. Contact us today for a free, no-obligation legal consultation.