Posted on 11/11/2014 at 07:39 AM by Melissa Schilling
Employers often use covert video surveillance to verify the authenticity of an employee's workers' compensation claim. For an employee who is faking or exaggerating his/her condition, video surveillance is often the most compelling piece of evidence to cut off the employee's workers' compensation benefits. Indeed, video surveillance can be used in two critical respects during workers' compensation proceedings: (1) to undermine the credibility of the injured employee; and (2) as substantive evidence to defeat the employee's claim for benefits. In such cases, it is essential for the employer to use the surveillance video as evidence during the workers' compensation proceedings. The only critical question becomes how and when to reveal the video surveillance. But what if the video surveillance is unfavorable to the employer? Is the employer required to turn over the video surveillance if the employer has no intention of using the surveillance video during the workers' compensation hearing? According to a recent decision by the Iowa Court of Appeals, the answer to this question is YES! On October 29, 2014, in Iowa Insurance Defense Institute v. Core Group of the Iowa Association For Justice, (No. 13-1627) by a 2-1 vote, the Iowa Court of Appeals upheld the workers' compensation commissioner's decision that employers must disclose all surveillance video whether it is helpful or harmful to opposing counsel prior to the employee's deposition.
The Court's decision was based upon Iowa Code § 85.27(2). Under Iowa Code § 85.27(2), employers and insurance carriers must agree to the release of all information to which the employee, employer, or carrier has access concerning the employee's physical or mental condition relative to the claim and further waives any privilege for the release of the information. Based upon this provision, the Court of Appeals agreed with the workers' compensation commissioner that: (1) surveillance video depicts a claimant's physical and mental condition; (2) Iowa Code § 85.27(2) extends beyond information held by third parties and includes surveillance video possessed by employers; and (3) surveillance, by itself, is not protected by the work-product doctrine (a legal doctrine which protects trial preparation materials from discovery). Despite the foregoing, the Court of Appeals, and the commissioner, recognized that surveillance video could be protected by the work-product doctrine if the video was prepared in anticipation of litigation and disclosed the mental impressions, conclusions, opinions, or legal theories of any attorney or other representative of a party concerning the litigation.
Take Aways: Although the parties are likely to seek additional review from the Iowa Supreme Court, this decision may bring dramatic changes to the workers' compensation discovery and investigative process in the meantime. Prior to this case, the workers' compensation commissioner only required disclosure of surveillance materials after the claimant was deposed. This allowed defense counsel to ask specific questions based upon the activity demonstrated in the video and allowed defense counsel to catch employees in a lie. Because employees will now be able to view the surveillance videotape prior to being deposed, employees will be more likely to tailor their testimony to correspond with the actions pictured in the videotape. In addition, prior to this case, employers were able to claim that the surveillance video was privileged under the work product doctrine if surveillance video was unfavorable to the employer's position or was not used to impeach a witness or provided to a medical witness. Now, it will be significantly harder for employers to protect surveillance videos under the work product doctrine. Therefore, it is imperative for employers to consult with legal counsel prior to conducting covert video surveillance in order to determine the best way to protect the disclosure of unfavorable video surveillance, if necessary.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
- Melissa Schilling
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