Everybody loves a good movie.  Well, almost everybody.

Recently, the Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration in the matter of Clemi Boubli v. Cast & Crew Payroll Services, Inc.  One of the interesting aspects of the petition for reconsideration was that the workers’ compensation Judge had refused to accept into evidence subrosa video tapes of applicant engaged in various activities.

Applicant sustained an injury to the head, brain, psyche, back/cervical spine, and bilateral shoulders while employed as a stage technician on March 22, 1997.  The parties brought their disputes to an Agreed Medical Evaluator, who found applicant was totally permanently disabled and needed a whole host of in-home care and various services.

Defendant subsequently ordered over 160 hours of surveillance which yielded roughly seven hours of videotape, which it promptly sent to the AME (with a crate of microwaveable popcorn).  The AME, upon seeing applicant’s various activities in the video tapes, immediately changed his opinion and drastically reduced applicant’s impairment rating and need for in-home services in a supplemental report.  Rumor has it that the seven hours of surveillance ruined the AME’s plans to watch the hit film, Marley and Me, allowing a co-worker to blurt out how the movie had ended and thereby ruining the experience for the AME.

When the matter proceeded before the WCJ, she ordered the report stricken and the tapes deemed inadmissible.  In her report and recommendation, the WCJ reasoned that the tapes should be excluded because (1) defendants only turned over 9 of the 10-24 video tape cassettes; (2) the subrosa film consists of a very small percentage of applicant’s activities on the days of surveillance; (3) the videotapes depict applicant with her caregivers doing activities which are recommended by her doctors; (4) the video tapes are not substantial evidence, even if admissible, and should be given no weight.

The WCAB, however, rejected the WCJ’s analysis and ruled the tapes are admissible, and that “no good reason has been shown to exclude them from the record.”  Although the applicant retains her ability to challenge the tapes if they do not actually depict her, or to depose the AME to explore his opinions as to the weight of the tapes, the tapes should not be excluded for the reasons stated by the WCJ.

Here’s one thought from your blogger – if the parties elect to bring their disputes to an Agreed Medical Evaluator, it is usually because they trust this AME for his medical competence and unbiased disposition.  On what grounds is the WCJ to substitute her own evaluation of the tapes for a medical professional’s?  After all, the AME reviewed the tapes and, in a supplemental report, wrote that applicant “has the capacity to perform at a much higher level than what she indicated to her examiner … I can no longer recommend services which are given in my previous report based on the current information…”

Some members of the defense community hesitate to use surveillance as a means of influencing an evaluating physician.  Your humble blogger is not among them.  Surveillance should be taken often enough, the only trick is to keep a clear record for use in authentication, and to review and use the surveillance tapes swiftly, before they grow stale.   And to clear up any confusion, the surveillance should be of the applicant and not of the evaluating physician.