A recent Board panel decision has provided guidelines for the appropriateness of introducing video surveillance as evidence at trial.

In Gamboa v. Saputo Cheese USA, Inc., ADJ5999814, defendants filed a petition for reconsideration, arguing that the Judge erred when denying defendant’s request to introduce video surveillance into evidence for impeachment purposes. In its Opinion and Order Denying the Petition for Reconsideration, the WCAB confirmed two uses of video surveillance in litigation:

1. To review medical conclusions of the evaluator considering the activities in the video, and,
2. For impeachment purposes, showing that the applicant’s observed activities are inconsistent with the applicant’s testimony or other evidence.

The Board opined that when surveillance is provided to the medical legal evaluator to review, the video is considered medical evidence. Unless a party objects to the determinations of the evaluator, it is unnecessary to introduce the video into evidence. In Gamboa, the parties did not provide the surveillance footage to Agreed Medical Evaluator Dr. Mandell. Because the surveillance was not provided to Dr. Mandell, the Board upheld the Judge’s opinion that the surveillance could not be considered medical evidence and there was no reason to introduce the video at trial to challenge Dr. Mandell’s report.

When video surveillance is introduced into evidence for impeachment purposes, the Board agreed with the Judge’s opinion that the evidence is only relevant when being introduced to contradict an activity that the applicant previously indicated he could not perform. After having reviewed the video surveillance, the Judge determined that the footage did not contradict the applicant’s former testimony and was therefore irrelevant.

 As defendants failed to present evidence showing the video surveillance was relevant as evidence of impeachment, and because the surveillance was not provided to Dr. Mandell for his review, defendant’s petition for reconsideration was denied. The decision serves as an important reminder of how to appropriately and effectively utilize sub rosa when litigating claims.