WCDefenseCA

Happy Friday, dear readers!

When your humble blogger was knee-high to a grass-hopper, all the “cool” kids played this game called Mortal Kombat.  It was a fighting game akin to Street Fighter and the such.  My favorite character on there was, of course, Sub-Zero, who could freeze his enemies and was, by definition, very cool (see what I did there?)  It makes perfect sense, of course, as now my favorite part of workers’ compensation is called Sub Rosa.

So, for those of you still reading and not busy unsubscribing because of that long set-up that went nowhere, I have a question for you: have you ever seen a sub rosa video used in a workers’ compensation case?  Typically, sub rosa is good for one of two things, if not both: to show unreported income, triggering fraud proceedings, restitution, and the razing of applicant’s credibility; and/or to show applicant engaged in activities exceeding reported limitations.  So you might have an applicant claiming to be limited to 10 pounds of lifting, then seen at Costco loading and unloading large boxes of water bottles.

If done right, and a foundation properly laid, sub rosa video can have devastating effect on the applicant’s credibility.  It can give rise to significant remedies and sometimes even carry serious punishment for the fraudster. 

What are we going to do when applicant swears, adamantly, that the video presented to the QME and the Judge is not that of the applicant, but a deepfake?   The Register is reporting that Tencent Cloud will offer deepfake videos for as low as $145 to generate a high-definition image and video of a person, so long as the client provides 3 minutes of live action and 100 spoken sentences of the real subject.

For example, for the younger readers, Arnold Schwarzenegger was in many fine films, but Ferris Bueller’s Day Off was not one of them:

How is the defense going to respond to the claims made by applicant that the person captured in the video footage is not him or her?

Well, initially we need to remind our investigators that in the world of AI, ChatGPT, Deep Fakes, etc., it is more important than ever to thoroughly document the sub rosa file as to time, date, location, etc. and have a life person who is available to testify that (1) the applicant was the one depicted in the film and; (2) the film has not been altered in any way.

We can also expect applicant attorneys to retain experts to testify that the video must be a deepfake, and cite flaws with the video footage to support this opinion.  Of course, the applicant bar will demand the expert’s fees as a cost.  We will have to be ready to respond to these claims as well once they are made; hopefully the life testimony of the investigator who personally took the footage will suffice to rebut any ridiculous claims of deepfake technology fabricating evidence of applicant fraud.

You might think that this is all from some paranoid mind of your humble blogger’s, who resents the fact that there is no audio-book version of Beyond the Aquila Rift, but let me assure you, these issues absolutely are coming, and we in the defense community would be well served to prepare for them rather than being blindsided when they finally arise. 

Have a great weekend, dear readers!