Many of my clients ask me if the workers’ compensation carrier can videotape them as part of their investigation. The answer to that question is a resounding, YES! However there are limitations on the workers’ compensation carrier’s use of the videotape that they obtain.
An administrative regulation governing discovery in workers’ compensation cases requires the employer to disclose in the pre-trial memorandum its intent to offer at trial any surveillance videotapes or films of the employee. That regulation is now followed by all of the workers’ compensation judges, and is the rule of law. However the carriers are trying to find new loopholes around the rule that requires them to disclose videotaped evidence before trial.
In a recent court case, Gross v, Borough of Neptune City, the Appellate Division in New Jersey addressed the issue of whether the employer can avoid its obligation of notification before trial by delaying surveillance until after the trial has begun, and then offering the videotapes just before its last medical expert testifies. The answer to that question posed to the court is no.
In the above case, the injured worker, Ms. Gross, was injured while performing her job as a police dispatcher for the Borough of Neptune City. Neptune City did not disclose that they had surveillance video tapes prior to the trial since none existed at that time. The employer video taped Ms. Gross after the trial began and asked the court to admit the tapes just before calling its last medical expert in the trial. The employer wanted to have its medical expert testify about the tapes. The excuse given for taping Ms. Gross after the trial began was that Neptune City’s attorney did not realize until after Ms. Gross testified that she was exaggerating her injuries.
The Judge refused to admit the videotapes into evidence and awarded Ms. Gross $92,763 for her injuries. On appeal, the Appellate Division agreed with the workers’ compensation Judge and said that the videotapes should not be admitted into evidence after trial begins if they were not disclosed prior to trial, pursuant to the rule already in place. The Appellate Division said that the workers’ compensation rule against surprise video evidence was adopted to insure that employees have a fair opportunity to address what can appear to be devastating evidence against them. The court further stated that to allow the videotape evidence in this case would be “…inconsistent with the purposes of the rule and with a decent respect for the notice requirement that is central to our concepts of due process and fundamental fairness.