Joe Smith, a surly, disgruntled, sub-optimum, morbidly obese individual, has claimed the occurrence of an industrial injury to his back. He has been absent from his job for over two months. The employer has substantial doubts regarding not only his alleged disability, but also whether he even sustained an industrial injury. Labor Code Section 3600 requires that the employer furnish medical treatment (Labor Code Section 4600), TD benefits (Labor Code Section 4650) and PD benefits (Labor Code Section 4658) only to those employees who sustain an injury arising out of and occurring during the course and scope of the employment. Within the employer’s arsenal of determining whether to provide benefits to an individual and, if an obligation to do so exists, the extent thereof, is video surveillance. Various strategic factors must be considered in determining whether to employ this discovery tool.
Many employers within this state currently have video surveillance installed at key locations on their premises. Thus, the use of video can be employed to determine whether an injury actually occurred, thereby providing the employer with a viable basis for rejecting the claim on a good faith basis and ultimately prevailing at the time of Trial. If the employee insists that the injury occurred on a specific date and time at a precise location, and the film does not reflect any accident or injury, proof will be adduced that the incident did not occur. Alternatively, film could reveal that the employee intentionally self-inflicted the injury, which would provide the employer with the affirmative defense pursuant to Labor Code Section 3600(a)(5). Additionally, where the employee claims that the injury was caused by his altercation with a co-employee, film can graphically reveal the identity of the individual who first engaged in physical conduct that a reasonable person would perceive as a “real, apparent threat of bodily harm” which is the standard necessary to invoke the affirmative defense of initial physical aggressor pursuant to Labor Code Section 3600(a)(7) as set forth by the Supreme Court in Matthews v WCAB (1972) 37 CCC 124. However, caution should be employed in traveling this path: unless the film clearly demonstrates that the applicant was the initial physical aggressor, the Court could utilize Labor Code Section 3202 to interpret the video as supporting the conclusion that the other individual was the initial physical aggressor, as it did in Hanover Insurance v WCAB (Mattas) (2014) 79 CCC 1207 and LACMTA v WCAB (Hicks) (2006) 71 CCC 641.
In addition to utilizing video to support the application of an affirmative defense or to prove that the claimed injury did not occur, this form of evidence can be utilized to reduce the alleged impairment asserted by the employee. Clearly, 10 minutes of video depicting Mr. Smith lifting a cow on Wilshire Blvd. would tend to impeach his allegation regarding a spinal impairment. However, it is not necessary for the video to land such a knockout punch to be valuable to the employer. How do the employee’s actual activities comport with previous or contemporaneous statements? A physician is required by Labor Code Section 4628 and CCR Section 10606 to obtain a complete and accurate history, express the findings on examination, set forth an opinion regarding the extent of impairment and/or work limitations as well as set forth the basis underlying all of those opinions. Is the employee’s behavior in the video consistent with the physician’s stated understanding? If not, there will be a gap between reality and the information provided: the physician’s opinions will not be deemed to constitute substantial evidence. (Hegglin v WCAB (1971) 36 CCC 93). In fact, if the employee neither denies nor explains the activities shown, the film may constitute substantial evidence that the employee’s disability is not as great as claimed. (Sully-Miller Contracting v WCAB (Sommer) (1980) 45 CCC 683). More importantly, how do the activities captured in the video comport with the employee’s deposition testimony? Labor Code Section 5710 permits the deposition of the employee to be “taken in the manner prescribed by law for like depositions in civil actions in the Superior Courts.” Because the deposition testimony of the employee is secured under oath (to which the penalty of perjury applies), an individual’s deposition assertion that, during the timeframe in question, he was only able to lift items weighing less than five pounds once every two hours and the video reflects him repetitively lifting items weighing in excess of 50 pounds, will serve to provide substantial impeachment. With knowledge that deposition testimony can effectively obliterate the merits of his case where the video tells a contrary story, wouldn’t a sharp applicant’s counsel always demand that the video be furnished before the deposition? Although such a demand can be made, it need not be complied with. In Downing v City of Hayward (1988), it was held that video need not be released to applicant’s counsel prior to the deposition.
Assuming that the video is beneficial to the employer’s interests, it is imperative that it be reviewed by the QME or AME. In fact, the Court, in Eastman Kodak v WCAB (Brinson) (1997) 62 CCC 1501, went so far as to state that video not reviewed by a physician will not be admissible at the time of trial. Because projecting dramatic video to a physician will be beneficial to the interests of the employer, applicants’ attorneys will often do everything in their power to prevent the physician from viewing this evidence. Assuming that applicant’s counsel objects to the presentation of the video to a QME pursuant to Labor Code Section 4062.3(b) or to an AME pursuant to Labor Code Section 4062.3(c), does the employer have a remedy? Clearly, video of the employee would constitute a “non-medical record relevant to the determination of the medical issue.” (Labor Code Section 4062.3(a)(2)) Assuming that there is no issue with respect to the identity of the individual depicted in the video, wouldn’t applicant’s counsel’s efforts designed to block projection of this evidence to the physician constitute “asserting a position that is indisputably without merit and done for the purpose of causing unnecessary delay or increase in the cost of litigation” (CCR Section 10561(c)(6)(A)) and thereby create a basis for seeking sanctions pursuant to Labor Code Section 5813?
Possessing excellent video evidence and $3.00 will buy you a cup of coffee at Starbucks unless the video is deemed admissible at the time of Trial. It is absolutely imperative the video be enumerated on the Pre-Trial Conference Statement at the time of the MSC. The Courts, in City of Hayward v WCAB (McKee) (2007) 72 CCC 237, Allegis Group v WCAB (Brodie) (2016) 81 CCC 1027 and Transworld Airlines v WCAB (Lilomaiaua) (1997) 62 CCC 835, held that the failure to enumerate video on the Pre-Trial Conference Statement precluded the admissibility of the video at the time of Trial.
In those situations in which the employer intuitively believes that the extent of impairment alleged by the employee is not consistent with reality, substance will prevail over procedure, as long as certain requirements are fulfilled. In Scott v WCAB (2008) 73 CCC 1261, the employee sustained an admitted industrial injury. The reporting physician opined that she was afflicted with a substantial amount of impairment. At the 3/21/05 MSC, the employer enumerated potential video on the Pre-Trial Conference Statement. Trial occurred on 6/28/05 and the case stood submitted for decision. Before the decision issued, the employer filed a Petition to Reopen for Additional Evidence, based on its procurement of video subsequent to the Trial. The Trial Court denied the employer’s Petition and issued a Decision holding that the employee sustained 76% PD. The employer’s Petition for Reconsideration was granted. The WCAB held that because the employer had attempted to conduct surveillance on at least four occasions prior to the MSC, it had demonstrated due diligence in procuring the video prior to the MSC in compliance with Labor Code Section 5502(d)(3). The WCAB essentially concluded that a miscarriage of justice would occur if the subsequently secured video was not admitted in the evidentiary record, particularly in light of the fact that this dramatic evidence, which was reviewed by a physician, resulted in a substantially reduced impairment amount. By implication, this case stands for the proposition that, as long as long as video is enumerated on the Pre-Trial Conference Statement and efforts were made to conduct surveillance prior to the MSC, video acquired between the date of the MSC and the date of Trial, should also be deemed admissible.
Finally, where the percipient investigator is unavailable to project the film at the time of trial, the custodian of records of the investigation firm can testify as to the foundation underlying the video. (Kozak v WCAB (2014) 79 CCC 1108)