ADJ18936354 · November 26, 2024

The Appeals Board found that the video footage was not sub rosa surveillance but footage of the incident itself, which must be produced prior to deposition to avoid prejudice to the applicant.

From the decision · page 1Applicant seeks removal of the Findings and Order ("F&O") issued on September 17, 2024, wherein the workers' compensation administrative law judge ("WCJ") concluded that defendant need not produce a video recording of applicant's injury prior to applicant's deposition. Applicant asserts that the WCJ erred because the video is a video of the alleged incident itself, not sub rosa surveillance, and is therefore properly discoverable prior to her deposition.

The video footage is of the incident leading to the alleged injury, not post-injury surveillance

Favours Applicant prevailed

This distinguishes the video from sub rosa surveillance videos which need not be produced prior to deposition, supporting production here.

From the decision · page 5To that end, we disagree with the WCJ that the situation here is analogous to the situation presented when a defendant has sub rosa surveillance video of an applicant's activities post-injury. By definition, the entire purpose of such footage is to challenge the applicant's credibility by demonstrating that the applicant's actual activities are inconsistent with the level of injury alleged. It is for this reason that panel decisions have held that such footage need not be disclosed prior to an applicant's deposition. (See Downing v. City of Hayward (1988) 16 CWCR 76.)

Applicant had previously been shown the video footage after the incident

Favours Applicant prevailed

Since applicant already saw the video, withholding it prior to deposition would unfairly prejudice applicant's testimony and counsel's ability to prepare.

From the decision · page 6Moreover, even if we were inclined to allow a defendant to withhold such evidence prior to a deposition in the abstract, there is a second reason why defendant should be compelled to produce the video footage at issue here. According to applicant's trial brief and the Petition, both verified under penalty of perjury and uncontradicted by defendant, the video footage was in fact already shown to applicant once previously, after the incident. (See Applicant's Trial Brief, at p. 2; Petition, at p. 2.)

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board

The Appeals Board timely acted on the petition within the 60-day period.

From the decision · page 4Under Labor Code section 5909(a), the Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under Event Description is the phrase "Sent to Recon" and under Additional Information is the phrase "The case is sent to the Recon board."

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if significant prejudice or irreparable harm will result and reconsideration is inadequate

Applicant showed that withholding the video prior to deposition would cause significant prejudice and reconsideration would be inadequate.

From the decision · page 5Removal the legal standard governing the claims raised here, as described above in Section I is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 3 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

Video footage was shown to applicant previously, so withholding it now would unfairly prejudice applicant's deposition testimony

From the decision · page 6Moreover, even if we were inclined to allow a defendant to withhold such evidence prior to a deposition in the abstract, there is a second reason why defendant should be compelled to produce the video footage at issue here. According to applicant's trial brief and the Petition, both verified under penalty of perjury and uncontradicted by defendant, the video footage was in fact already shown to applicant once previously, after the incident. (See Applicant's Trial Brief, at p. 2; Petition, at p. 2.)