by Tracy W. Cary, Esq.
Video surveillance can have a devastating impact on a workers’ compensation case. How frequently it occurs is speculative but it is safe to assume that it occurs in nearly every case.
Why is it used so often?
Surveillance can undermine the credibility of the injured worker and his or her claim in the eyes of the treating physicians and more importantly in the view of the judge. Despite warnings, there are some people who will nevertheless continue to engage in activities inconsistent with the physical restrictions imposed by the physicians or make social media posts that only serve as fodder for weakening their credibility or claim.
There are numerous examples but Sullivan v. City of Satsuma, 20 So. 3d 822, 823-824 (Ala. Civ. App. 2009) illustrates the point. It appears from a reading of the trial court’s judgment in Sullivan that video surveillance alone caused the injured worker to lose his case.
The Court finds that the video surveillance is compelling and demonstrates that Shester Sullivan has not suffered the loss of the ability to earn wages as a result of any injury sustained within the course of his employment with the City of Satsuma. The Court finds that the injury to Shester Sullivan’s left knee does not contribute to any disability which impairs his ability to earn wages. Further, the Court finds that Shester Sullivan has testified in his wrongful-termination action that he was capable of gainful employment with the City of Satsuma. The evidence as observed by this Court during the trial of the case and the viewing of the surveillance video demonstrates in the best judgment of this Court that Shester Sullivan has not suffered an impairment of his ability to earn wages and hence he is not entitled to workers’ compensation benefits for a permanent impairment or disability.
The Court finds that Shester Sullivan is not entitled to recover compensation benefits as a result of any injury sustained within the line and scope of his employment with the City of Satsuma as the court determines that he is capable of performing physical activities with no limitation of his left knee as demonstrated by the video surveillance offered by the defendant. The Court further finds that Shester Sullivan has failed to carry his burden of proof with regard to any injury to his back and the Court finds that any such condition is unrelated to his employment with the City of Satsuma. Id.
The Defendant Can Withhold Video Surveillance Until after the Plaintiff Is Deposed
From the plaintiff’s perspective it would be nice to be able to review video surveillance before the plaintiff submitted to a deposition. That has been tried before, in Ex parte Doster Constr. Co., 772 So. 2d 447 (Ala. 2000).
In Ex parte Doster, the injured worker’s attorney refused to allow him to sit for deposition claiming he was entitled to know if a surveillance videotape existed and, if it did, that he was entitled to review it before sitting for the deposition. The trial court agreed and the employer petitioned for mandamus review. The issue was whether the trial court abused its discretion in ruling that the worker did not have to appear for deposition until the employer both disclosed whether a videotape of existed and, if it did, to permit the worker to view the videotape.
The court wrote that if the plaintiff were to view the surveillance videotape prior to being deposed as to his physical injuries and limitations during the time period pictured in the videotape, he would be more likely, either inadvertently or deliberately, to tailor his testimony to correspond with the actions pictured in the videotape.
The Court wrote:
The quest for the truth should be furthered through protecting a surveillance videotape before the employee is deposed. Of course, the employee also has a right to question the truthfulness of the images on the videotape. Therefore, once a party decides to use the videotape as evidence, it is no longer protected by the work-product privilege. At that point, the employee is entitled to test the truth and validity of the images on the videotape. Because videotapes are particularly vulnerable to manipulation through various editing techniques, the videotape, if requested, should be produced by the employer within a reasonable time before trial so as to afford the employee the opportunity to test its validity and authenticity. Id., 772 So. 2d at 451.
About the Author:
Tracy W. Cary, a partner and co-founder of Morris, Cary, Andrews, Talmadge & Driggers, LLC in Dothan, practices in workers’ compensation on behalf of injured victims and their families. He has represented hundreds of workers’ compensation claims all over the state of Alabama, and is also licensed to practice in Florida, Georgia, Tennessee, and the District of Columbia.
Mr. Cary is the author of The Injured Worker’s Survival Guide, and maintains a blog exclusively devoted to job-related accidents, Alabama Workers' Compensation Law Blog. He is also a frequent speaker for continuing legal education seminars, including the Fundamentals of Workers' Compensation seminar in Montogomery, AL.