Video surveillance is allowed in workers’ compensation cases and is often used to make sure a petitioner is telling the truth about the extent of his injuries or the limitations he has as a result of his work injuries. If video surveillance shows a petitioner engaging in activities that he has told his doctors he can’t do, this might raise the issue of fraud.
The general rule about using surveillance video during a workers’ compensation trial is that its existence has to be indicated on the Pre-Trial Memorandum. The Pre Trial Memorandum is filled out by the parties and the Judge and lists all of the witnesses the parties will call at trial as well as the issues in dispute.
However, in the recent case, Louis Dubrel v. Maple Crest Auto Group, decided by the Appellate Division on January 30, 2012, the Respondent was able to introduce surveillance video after the petitioner testified. In this particular case, the petitioner testified that he had sustained permanent injuries to his neck and low back from an injury at work in February 2004. The petitioner testified that before his injury he was able to travel, go fishing with his kids, and ride off road motorcycles. The petitioner also testified that he was not able to trailer horses any longer. He had enjoyed a hobby of raising horses for harness racing but was no longer able to ride horses, train horses, trailer horses, or care for them. He and his brother still had horses but he said that he only participated “by brain”.
After petitioner testified, the respondent conducted an investigation with surveillance and determined that the petitioner was still very involved in harness racing. Surveillance showed the petitioner working on his farm, doing carpentry, taking care of animals, etc. In the video and according to the surveillance investigator, the petitioner was unimpaired in his activities of daily living. The petitioner was then presented with the videotape and informed that the employer was going to call the surveillance agent and the claims adjuster at trial.
The video was shown, over the objection of petitioner’s counsel. The adjuster testified about what she had discovered on the horse racing websites. The Workers’ Compensation Judge noted that one week before petitioner’s testimony in court, he was the driver of “Finest Firewater” in a qualifying race in Delaware. The Judge found that the statement that petitioner could no longer ride horses was purposely and knowingly false. He further found that it was clear from the context of the petitioner’s remarks that the statements were made to obtain workers compensation benefits fraudulently.
In their decision, the Appellate Division approved the inclusion of surveillance video obtained after the petitioner testified because it was “relevant to prove or disprove a fact in issue.”The Appellate Court found that the video surveillance were not “surprise witnesses” and the Compensation judge had not abused his discretion by letting that testimony into the case. The Appellate Court ruled that although surveillance tapes made after the start of trial should generally be excluded, an exception arises where the employer could not be aware of the circumstances necessitating the surveillance before the start of trial.