In 1963, the Pennsylvania Supreme Court determined that there is no expectation of privacy when a private investigator follows an individual and photographs her on the street subsequent to her claiming personal injuries sustained in a car accident. Such a claimant, the court held, “must expect reasonable inquiry and investigation to be made of her claim and to this extent her interest in privacy is circumscribed.”1 The court went on to stress the public nature of the surveilled activities:
It should also be noted that all of the surveillances took place in the open on public thoroughfares where appellant’s activities could be observed by passers-by. To this extent appellant exposed herself to public observation and is therefore not entitled to the same degree of privacy that she would enjoy within the confines of her own home.2
Relying on the same reasoning, Pennsylvania courts have held that workers’ compensation claimants are provided with a reduced expectation of privacy. "Under Pennsylvania law, invasion of privacy involves four separate torts:
(1) unreasonable intrusion upon the seclusion of another;
(2) appropriation of another's name or likeness for commercial purposes;
(3) publicity given to another's private life; and
(4) publicity that unreasonably places another in a false light before the public." In workers’ compensation-related privacy cases, the privacy tort at issue it the first one listed here, the “unreasonable intrusion upon the seclusion of another.”3
To define “intrusion upon the seclusion,” Pennsylvania courts look to the Restatement (Second) of Torts, which explains the term as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”4 The Restatement’s comments and examples are instructive. They make clear that it is not an intrusion to photograph someone walking on a public highway, because one is not in seclusion when he or she is in public. Moreover, liability does not attach unless the interference with seclusion is substantial enough that a reasonable person would find it highly offensive.
Clearly, expectations of privacy are diminished while outdoors and during the summer months, we all, including many workers’ compensation claimants, spend more time outdoors. That public presence provides more opportunities for surveillance. It is well established in Pennsylvania that “surveillance films, even when taken without the consent of the subject, may be used as evidence in workmen's compensation proceedings for the purpose of establishing facts, if relevant, and if the proper safeguards of identification and authentication are met.”5 Additionally, the use of vision enhanced photographic equipment was allowed in a workers’ compensation case, when an investigator “was standing at a lawful vantage point in the parking lot across the street from the Islamic Center” using such equipment as the claimant prayed.6 Outside of the workers’ compensation context, Pennsylvania courts have found no expectation of privacy at airports, on a front porch, on a rooftop, and at a courthouse.
Keeping in mind that insurers and their investigators may not trespass, photograph individuals inside their homes, or harass claimants, one can assume that the same expectations of privacy exist in the workers’ compensation context, as Pennsylvania courts have clearly expressed the value of investigations to weed out fraudulent claims. According to the Pennsylvania Supreme Court, “there is much social utility to be gained from these investigations. It is in the best interests of society that valid claims be ascertained and fabricated claims be exposed.”7
The value of good surveillance, particularly when summer weather makes it more obtainable, cannot be understated.
1 Forster v. Manchester, 410 Pa. 192 (1963).
2 Id., at 197.
3 Doe v. Wyoming Valley Health Care System, Inc.,987 A.2d 758, 765 (Pa. Super. 2009).
4 Restatement (Second) of Torts § 652B.
5 See WestinghouseElec. Co. v. Workmen's Comp. Appeal Bd. (Pollock), 96 Pa.Commw. 436, 507 A.2d 1287 (1986) (citations omitted).
6 Tagouma v. Investigative Consultant Services, Inc. andMichael S. Zeigler, 4 A.3d 170 (Pa. Super. 2010).
7 Forster, at 197.