Carrier’s Video Surveillance of Employee Disallowed Because It Was Not Disclosed

The Third Department affirmed the Workers’ Compensation Board’s determination that video surveillance of the employee was properly excluded from the hearing because the existence of the surveillance by the carrier had not been previously disclosed:

It is well established that an employer or carrier must disclose the existence of surveillance and investigation materials to a claimant prior to the claimant’s testimony … . This obligation serves “to  limit the gamesmanship which might otherwise occur”… . While routine questions …regarding claimant’s return to work may not trigger a carrier’s obligation to disclose the existence of these items…, we note that, here, the carrier specifically prompted this line of questioning …at the end of the hearing.  The surveillance materials were thus properly precluded, as the carrier had the opportunity to disclose their existence before prompting the [questioning] and before the claimant testified about returning to work… . Accordingly, contrary to the carrier’s argument, the Board’s decision to preclude the carrier’s surveillance materials did not deviate from its previous decisions and was  not arbitrary and capricious… .  Matter of Morelli, 515964, 3rd Dept, 6-13-13