On more than one occasion I have had a version of the following inquiry by a client. “A guy has been parked outside my driveway for the last two days, and I swear I saw him pointing a video camera at me. What should I do?”

The short answer is “nothing”. If you are doing what your doctor told you to do and not doing anything he told you not to do, any surveillance video will only reinforce that you are complying with doctor’s orders. The vast majority of surveillance tapes that I have reviewed over the years were usually more helpful to the claimant than to the insurance company. Typically, it shows my client hobbling down the street in a way that is consistent with the injuries that he or she has alleged. When the lawyer on the other side of the table attempts to argue that the limp depicted in the video is not as severe as the one he is now claiming in front of the commissioner, or that he walks well enough to work full-time, that argument is generally a loser.

Sometimes the carrier will authorize the surveillance tape in an effort to catch the claimant engaging in some type of activity that is inconsistent with the restrictions that the treating doctor has placed upon him. When this happens, counsel will sometimes ask the treating physician to review the surveillance tape and to ask whether such activities by the claimant are inconsistent with the treating physician’s opinion that the claimant has no work capacity, for example. This can be effective in altering the treating physician’s opinion as to work capacity if, in fact, the claimant can play a game of hockey, but claims that he cannot work as a machinist.

Bottom line: assume that someone will be videotaping your actions, and as long as your activities are consistent with the medical restrictions, you will have nothing to worry about.

There are storm clouds on the horizon. When you receive the dreaded Form 36 by certified mail from the insurance carrier, it means that they are asking for permission from the workers’ compensation commissioner to either reduce or eliminate or change in some way the benefits that you have been receiving. If you do not have an attorney at this point in the case, it is a very good time to consider hiring one.

There are a number of scernios in which a Form 36 may be issued. You may have been receiving temporary total disability benefits for a period of months, and, based on the independent medical physician’s opinion that you now have work capacity the carrier is seeking to suspend your temporary total payments. Or, you may be receiving light duty payments (temporary partial payments) for which you have been submitting job searches. The adjuster may feel that your searches are inadequate. This may result in a Form 36 being filed. Your treating physician has recommended physical therapy or some other treatment that you have refused to follow, and therefore the carrier is seeking to cut off your benefits.

In any of those circumstances, or many others that can be imagined, the claimant must object to the Form 36 within 15 days of the issuance of the Form 36 or the 36 will automatically approved by the workers’ compensation commissioner. Connecticut state law requires that in order for the above-mentioned benefits to be cutoff or changed, the commissioner must approve of such change.

Unfortunately, many adjusters believe that they can cutoff benefits without the authorization from the workers’ compensation commissioner in instances where they feel that the claimant is not producing sufficient job searches, or where they have done something else to earn the ire of the adjuster.

In the event that an objection to the Form 36 is timely filed with the commission, a hearing will be scheduled within several weeks before the commissioner to discuss these issues. Again, my strongest recommendation is that you have an attorney to help assist you in a 36 hearing.

Clients will often ask whether they can receive their specific award in a lump sum rather than over a period of weeks, and sometimes years, depending on how big the award is. The answer is that the claimant can file a motion for commutation in which the claimant requests that the workers’ compensation commissioner authorizes a one time lump sum payment at a specified discount rate rather than being weekly. In considering this motion, the commissioner must satisfy himself/herself that doing so is in the best interests of the claimant. Depending upon which commissioner this motion is entertained The claimant should furnish copies of documents which would demonstrate what the claimant is earning every week, and what the claimant is spending every week by way of mortgage obligations or rent, utility bills, revolving credit card bills, alimony or child support obligations, and the like. The more dire the claimant’s financial circumstances are, the more likely that the commissioner will approve a motion for commutation.

The discount rate to which the insurer is entitled depends upon the current interest rates. Because the current interest rates are at historic low, so is the discount rate by which the lump sum must be discounted (currently 3% as of September 2009). Obviously, as the interest rates go up in the future so will the discount rate.

The claimant must be aware that if the commissioner approves the lump sum commutation, then the claimant will not be able to receive any temporary total or temporary partial benefits until such a time as the original periodic payment of his/her specific benefits would have elapsed, (even if the claimant becomes incapacitated again). By way of example, if the claimant commutes his 10% of the back (37.4 weeks), then the claimant cannot collect any temporary total or temporary partial benefits for the next 37.4 weeks, even if he/she becomes totally incapacitated.

The claimant is advised to discuss the pros and cons of such a commutation carefully with his lawyer.