Tactical Decisions Regarding the Use of Surveillance in Worker’s Compensation Hearings

WDC Journal Edition: Spring 2006
By: Cherie Erickson - Aplin & Ringsmuth LLC

Although opportunities for formal discovery are relatively limited under the Worker’s Compensation Act, evidence obtained though informal discovery, such as surveillance, may enhance the respondent’s chances of successfully defending Wisconsin worker’s compensation claims. However, presenting surveillance evidence at a worker’s compensation hearing requires planning on the part of the respondent and the applicant must be prepared to successfully deal with “surprise” surveillance that the respondent may present at the hearing.


Admission of Surveillance in Worker’s Compensation Hearings

Generally, the rules of evidence do not apply to workers’ compensation hearings. The courts have applied evidentiary rules and common law when considering admissibility of evidence in worker’s compensation claims.1

With the exception of medical records2 and certified medical and vocational reports3, all other records and evidence may (theoretically) be filed at the worker’s compensation hearing. Surveillance evidence normally is not presented until after the applicant testifies at the worker’s compensation hearing because once the existence of surveillance is disclosed to the applicant and his or her attorney; its usefulness is dramatically reduced or eliminated.

In Ranft v. Lyons, the court of appeals held that the existence of, and details concerning, surveillance or other private investigative efforts into the activities of a claimant are privileged attorney work product, and are not routinely discoverable in Wisconsin civil proceedings.4 In fact, even after the close of discovery deadlines, Wisconsin courts have upheld the non-disclosure of a surveillance tape until it is played in court.5
At worker’s compensation proceedings, administrative law judges routinely admit surveillance materials into evidence even if the surveillance has not been disclosed prior to the hearing. While an insurance adjuster or attorney may chooseto disclose the existence and nature of surveillance in advance of a worker’s compensation hearing, for tactical reasons,Ranft may be asserted to rebuff demands by claimants and their attorneys that such evidence must be produced.6


Respondent’s Tactical Decisions

Once the respondent has obtained the surveillance materials, the respondent needs to decide how best to use that material to their advantage. Prior to the worker’s compensation hearing, the respondent will need to determine if it is necessary to have their medical and/or vocational expert(s) review and comment on the surveillance. Providing the material to an expert, and having it form the basis for his or her opinion, entitles the applicant to a copy prior to the hearing if the expert’s report references the video and the applicant requests it. Thus, disclosure even to an expert requires tactical analysis.
Even if the respondents submit “great” surveillance at the hearing, its power can be somewhat undermined if the surveillance is not logically linked to the benefits it is meant to rebut. In Brakebush Bros. v. LIRC, the Wisconsin Supreme Court held that the respondent failed to properly rebut the opinion of the applicant’s treating physician with their surveillance videotape.7 It was noted that though the recreational activities shown on the surveillance videotape may have appeared to the “lay person” to be incompatible with the applicant’s disability, the respondent failed to rebut findings that the worker’s compensation applicant reached a healing plateau on a certain date because the respondent failed to present evidence that a person able to engage in such activities would also be able to engage in light duty work.8
Filing the medical and/or vocational report(s) which comment on the surveillance after the applicant has testified at the hearing, thus linking the surveillance to the benefits claimed, presents its own set of tactical issues for the respondent. Because medical and vocational expert reports must be filed with the Department of Workforce Development 15 days prior to the hearing,9 the respondent runs the risk their medical and/or vocational report(s) may not be allowed into evidence. Therefore, it is important for the respondent to have filed his or her main medical or vocational defenses prior to the 15-day filing deadline to avoid the risk of having the entire medical or vocational defense not allowed into evidence and then file the supplemental report(s) after the surveillance is played at the hearing.
Prior to the hearing, the respondent must determine what portion of the applicant’s claim the surveillance is meant to rebut, and then determine whether additional evidence or reports needs to be submitted into evidence. If a concluding hearing is granted, the respondent needs to utilize the extra time to thoroughly prepare cross-examination based upon the applicant’s testimony at the first hearing and if necessary, obtain additional support for their defense which he or she may have been unable to obtain prior to the first hearing.


Applicant’s Tactical Decisions

Despite the applicant’s expected objection to the surveillance on the basis of unfair surprise, the administrative law judge will most likely allow the surveillance into the record as evidence, and therefore the applicant must be prepared to make tactical decisions regarding how to handle the surveillance once it has been presented at the hearing. Counsel for the applicant needs to be prepared to salvage potential credibility problems on re-direct examination of the applicant. Counsel for the applicant also needs to quickly decide what action, if any, they would like the administrative law judge to take if the surveillance is admitted into evidence.

The applicant may want the applicant’s treating physician to review the surveillance if the surveillance shows that applicant engaged in activities that were different than the abilities presented to the treating physician. The applicant’s treating physician may be able to rehabilitate his or her opinion or report by stating that the applicant was having a good or bad day and/or that the activities seen in the surveillance videotape are not that significant.
In order to have the applicant’s treating physician or their vocational expert review the surveillance, the applicant may request a concluding hearing, or the applicant may request that the record be left open for a period of time such that the applicant’s experts could review and comment upon the surveillance. The Administrative Law Judge has discretion in this matter and need not abide by any agreement between the parties. 10
The applicant must also be aware of the potential implications of requesting a concluding hearing. If counsel for the applicant is of the opinion that further testimony from the applicant may only hurt the applicant’s claim for benefits, counsel for the applicant may decide that simply rehabilitating the applicant on redirect is a better option.

Depending on the damage, if any, that may have been done by the surveillance at the hearing, the applicant needs to know his or her options and choose accordingly. The applicant will need to balance the damage that the surveillance may have done to his or her claim for benefits and the greater damage that could be done at a concluding hearing. The applicant will also need to follow-up in a timely manner to ensure that his or her experts can and will comment on the surveillance.


Conclusion

Surveillance evidence can be potentially devastating to an applicant’s claim, however, if the respondent fails to link the applicant’s behavior as seen on the surveillance videotape to the benefit it was meant to rebut, even what may appear to be great surveillance may ultimately have little impact on the claim. The respondent needs to plan ahead to successfully utilize the surveillance videotape and the applicant needs to be prepared to successfully handle any “surprise” surveillance and corresponding report(s) that the respondent may submit at the hearing.
Cherie A. Erickson is an associate attorney at Aplin & Ringsmuth, LLC. She primarily defends employers and insurance carriers in employment relations matters. She earned a B.S. degree from the University of Wisconsin - La Crosse where she majored in Microbiology with a minor in Chemistry. She earned her law degree from the University of Wisconsin Law School. She is a member of the American Bar Association, the State Bar of Wisconsin and the Wisconsin Association of Workers’ Compensation Attorneys.

1See John D. Neal & Joseph Danas, Jr., Worker’s Compensation Handbook (5th ed. 2003).

2Wis. Stat. §102.17

3Wis. Stat. §102.17(1)(d)

4Ranft v. Lyons, 163 Wis. 2d 282, 302-303, 471 N.W.2d 254 (Ct. App. 1991).

5Martz v. Trecker, 193 Wis. 2d 588, 594, 535 N.W.2d 57 (Ct. App. 1995).

6Ranft at 303. See also Martz at 494.

7Brakebush Brothers, Inc. v. LIRC, 210 Wis.2d 623, 633, 563 N.W.2d 512 (WI. Sup. Ct.1997).

8Id. at 632.

9Wis. Stat. §102.17(1)(d)

10Nelson Mill & Agri-Center, Inc. v. DILHR, 67 Wis. 2d 90, 226 N.W.2d 435 (1975) and Theodore Fleisner, Inc. v. DILHR, 65 Wis. 2d 317, 222 N.W.2d 600 (1974).