It is well understood that all individuals have an interest in privacy, but in the context of workers’ compensation, that privacy right often succumbs to an employer’s legitimate business interest, see Pamela V. Keller, “Balancing Employer Business Interests and Employee Privacy Interests: A Survey of Kansas Intrusion on Seclusion Cases in the Employment Context,” 61 U. Kan. L. Rev. 983 (2013). Employers and their insurance carriers, in efforts to protect themselves from frivolous claims, monitor injured workers using intricate image-enhancing technology, as in Moses v. McWilliams, 549 A.2d 950 (Pa. Super. Ct. 1988). While it is understood that employers have a legitimate business interest in protection from fraud and malingering, one of the weapons at their disposal, surreptitious surveillance, has stretched this effort too far.

Differing from other judicial proceedings, workers’ compensation judges (WCJs) are not bound by common law or statutory rules of evidence in litigation. The evidentiary record usually consists of the injured worker’s testimony, the testimony of an employer’s fact witness, medical expert testimony, and demonstrative evidence, including surreptitious surveillance. This surveillance is admitted into the evidentiary record so long as it is the claimant depicted therein, and is reviewed to determine the credibility of the claim, either contradicting or confirming the medical testimony. As a result, surveillance serves as a crucial piece of evidence.