Video evidence is generally admissible in workers’ compensation cases. In most cases, video evidence is used by the defendant as evidence that the applicant’s impairment, physical disabilities, or even credibility should be called into question. Video evidence of the applicant’s activities can also be reviewed by the medical-legal evaluator to evaluate these issues as well.
It has long been established that a defendant is not required to produce or even disclose the existence of post-injury video until after taking the applicant’s deposition. The seminal decision for this rule is Downing v. City of Hayward (1988) 16 CWCR 76 (Panel Decision). Downing holds that sub rosa surveillance video of an applicant’s activities post-injury need not be disclosed until after the applicant’s deposition is taken by a defendant. The WCAB reasoned in Downing that the purpose for using post-injury surveillance video evidence of the applicant is to cast doubt on the applicant’s credibility through evidence inconsistent with the applicant’s deposition testimony or what he or she tells a doctor or medical-legal evaluator. This cannot be accomplished if surveillance video is disclosed prior to the applicant’s deposition.
What about surveillance video evidence of the actual injury itself? When is it required to be disclosed and produced? In Gonzales v. ADP TotalSource Group 2024 Cal. Wrk. Comp. P.D. LEXIS 415 (Panel Decision), the Board determined that video evidence of the injury itself must be disclosed and produced prior to the applicant’s deposition when reasonably requested as part of discovery.
In Gonzales, the applicant filed an Application for Adjudication of Claim alleging injury to her shoulder, nervous system, and psyche occurring on November 20, 2023, when she was involved in an apparent physical altercation at work with a co-worker. The applicant served a demand for production of the applicant’s employment records and witness statements. The defendant denied the demand. The applicant then demanded production of video of the work altercation, claim notes, and witness statements. This too was denied by the defendant. It is noted that the defendant had shown the video of the incident to the applicant herself, prior to retaining an attorney. The applicant then filed a DOR to obtain an order to compel production of this evidence. The WCJ held that the defendant was not required to produce the video evidence of the incident before the applicant’s deposition, relying on the Downing decision.
On Reconsideration, the WCAB panel reversed the WCJ’s decision holding that where an applicant has been shown video of the injury itself, the defendant must disclose and produce the video to the applicant/applicant’s attorney when requested before the applicant’s deposition.
The Board distinguished Gonzales from Downing. Not only was the video evidence different (video of the injury vs. video post-injury), but the video in Gonzales was already disclosed and shown to the applicant. This makes the holding and rationale in Downing irrelevant since the video evidence cannot be used to test the applicant’s credibility at deposition.
Takeaways
The Gonzales panel decision seems to be limited to producing and disclosing video of the injury incident itself. Does this apply to video evidence that the injury did not occur? What about video evidence of the applicant unable to do activities before the injury occurred? What if the video evidence of the injury incident was not shown to the applicant? Arguably, one could factually distinguish these types of cases and video evidence from those addressed in Gonzales. One could also argue that the Downing decision should apply, and that this type of video evidence need not be disclosed prior to the applicant’s deposition.
By Jeffery A. Nale, Esq., Associate Attorney, San Jose Office, May 2025
