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Law Offices of Jeremy K. Lusk, Inc.

In a recent case the insurance company apparently suspected the injured worker was not being entirely honest as to her abilities, and they retained an investigator to obtain surveillance film.  The applicant went to the gym, and the investigator purchased a day pass and went in to film the applicant while she worked out.  The catch is that the gym had a sign that indicated no filming was allowed.  The applicant argued that she had a reasonable expectation of privacy due to that sign, but the court disagreed.  Holding that the applicant had no reasonable expectation of privacy, the WCAB allowed the defendant to show the film to the agreed medical examiner.  An excerpt from the case:

Whether or not such a sign was present is irrelevant. Assuming Defendant had a good faith belief to support an investigation, including sub rosa videotaping, there is nothing to suggest that Applicant had a reasonable expectation of privacy as to her exercising in the open work out area. There is nothing in the record to suggest that any videotaping was done in the Women’s locker room or other such area that would support a reasonable person to believe that any videotaping would be inappropriate and a violation of Applicant’s privacy rights. Here, Applicant would have no reasonable expectation of privacy, in a workout area that members of the public, albeit by purchasing a “day pass” may enter the workout area of the Gymnasium.

AC4 Fitness can have its own policy of prohibiting any cameras in their work out area. They have an absolute right to control their facility. However, their right does not extend to Applicant.

Applicant had no reasonable expectation of privacy when exercising at a gymnasium  that is open to the public for a fee.

Applicant has failed to demonstrate that she will suffer any substantial prejudice or irreparable harm by the showing of the videotape to the reporting physician(s) in this case.

The key seems to be that the filming was done in the main area of the gym that was open to all members.  Had the investigator followed the applicant in to the bathroom, shower area, or locker room, the outcome could have changed.  The case is Amy Smith v. Walter Claudio Salon & Spa (State Farm Insurance), August 7, 2015, 2015 Cal. Wrk. Comp. P.D. LEXIS 450.

If you have questions about your workers' compensation case and want to talk to an attorney in Fresno, call 559-408-7436 or fill out the form to the right.

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The insurance company got film of me in the gym.
Can they show it to the doctor?