Video and Disclosure - No Big Deal

Iowa is dealing with a typical issue in litigated workers' compensation cases in an unusual way.

By declaring sub rosa video (survelliance video) of an injured "medical evidence," the material is not protected from disclosure as being the "work product" of an attorney which would be protected by attorney-client privilege.

Workers' Compensation Commissioner Christopher Godfrey issued a declaratory order on Oct. 23, 2012 that was upheld by an Iowa district court Monday when the court denied a motion to stay enforcement of the declaratory order.

Consequently, surveillance of injured workers by insurers and employers must be released when requested by the workers or their attorneys rather than being held until the injured workers are questioned about their claims.

This has the defense side rankled because it eliminates the surprise attack and gives the claimant side an opportunity to correct any mal-perception.

The legal theory is that sub rosa video is obtained either in the course of, or in anticipation of, litigation, and thus is not subject to the records release statute.

Godfrey said in his ruling that Iowa Code Section 85.27 "requires release of all information concerning a claimant's physical or mental condition." Iowa-based insurance organizations argue that the section should be "read as applying to the release of medical evidence and information held by third parties."

Godfrey said the section applied to medical evidence and information held by third parties, but said the section is not limited to evidence held by third parties. "The section...references all information that an employee, employer, or insurance carrier has access to concerning a claimant's physical or mental condition," Godfrey wrote.

"Therefore, the issue presented is whether surveillance recordings and reports are evidence of a claimant's physical or mental condition, which is required to be released without privilege if requested under Code Section 85.27(2)," the commissioner said.

The language in question is:

"Any employee, employer or insurance carrier making or defending a claim for benefits agrees 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. The information shall be made available to any party or the party's representative upon request. Any institution or person releasing the information to a party or the party's representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers' compensation commissioner for relief. The information requested shall be submitted to the workers' compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly."

Godfrey concluded that "surveillance materials in workers' compensation claims concern a claimant's physical or medical condition."

"The Division (of Workers' Compensation) is not aware of surveillance recordings and reports being used for any other purposes in contested cases before the division," Godfrey wrote.

While the defense representatives in Iowa told WorkCompCentral that they will appeal to the state Supreme Court, I don't see the ruling as a misinterpretation of the law, or a burden to the parties.

The claimant in a contested case has to make a request for the video first - the ruling does not mandate that the carrier release such evidence upon acquisition.

And while surprise attacks are an easy way to refute allegations of disability or other claim, sub rosa video is not without its evidentiary issues and doesn't, in and of itself, prove or disprove injury, disability, or any other contested issue. There needs to be corroboration, or at least some other testament under perjury for video to have any evidentiary weight.

In addition, such video is only a snap shot in time. The value of video is when there is a history of video evidence depicting activities which the claimant actively denies or against which there is a claim of harm or injurious exposure. The vast majority of sub rosa video, in my experience, has very little value in a litigated case.

In addition, the Iowa statute permits the party holding the video to request an in camera review by the court prior to release to "determine the relevance and materiality of the information" - this gives the defense an opportunity at a pre-emptive strike by demonstrating at the pre-trial stage the folly of a claim.

Occasionally video may depict a claimant shedding his or her crutches and engaging in some strenuous physical activity, but the reality is that this is a rare circumstance, and releasing this information is not going to seriously jeopardize the defense. Creative lawyers know how to set up a case for perjurious testimony.

Anticipating litigation, and being in litigation, are two different concepts. Maybe there's a reasonable explanation for the activity depicted in video and maybe not. Nobody likes a cheat - in most situations good video, regardless of the explanations for the activity depicted, will provide the trier of fact with the information necessary to refute the cheat. An early disclosure won't impact evidentiary conclusions, and may on occasion lead to the early resolution of a claim.

More often than not, in my experience, video is not going to make or break a case. The trial lawyer's skills (and the defense client's good practices) in meeting evidentiary standards is much more determinative in the outcome of a case.

From a legal analysis, Godfrey's interpretation seems solid. From a practical analysis, I see no particular impediment to defending against spurious claims.