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The Pennsylvania Commonwealth Court Decides How Filmed Surveillance Evidence May Be Used to Defeat a Claimant's Petition for Workers' Compensation Benefits Entitlement


August 3, 2012

Background Facts of Case

In 2005, claimant sustained a work related low back injury which the employer accepted as compensable and for which claimant initially received disability benefits.  He eventually returned to work and his indemnity benefits payments were properly suspended.  However, in October 2006, claimant contended that he experienced intense back pain with lower left extremity radiation.  He filed a Reinstatement Petition, alleging again that he was disabled and unable to work, as the result of his occupational injury, as of November 1, 2006, and this matter was litigated before a Workers' Compensation Judge (WCJ). 

Claimant testified at three hearings for this case held in February 2007, November 2007, and April 2008.  On the latter occasion, he testified in detail as to his self-impressions about his symptomatology and difficulties. He alleged that his back and leg pain intensified with sleep, that constant use of a cane was necessary, that he must undergo Cortizone treatments, that he was considering surgery, that he had difficulty stair climbing, that he experienced leg numbness and increasing pain, that he cannot drive much, that he must build a first floor bathroom and bedroom in his home to accommodate his disability, that he must urinate in his kitchen sink because he could not navigate the stairs to a second floor bathroom, and that he likes to fish but could do this activity only occasionally because of back problems.

Testimonies of three of claimant's friends was also presented at this hearing, confirming his difficulties with standing and walking.  The deposition testimony for this case was also presented from claimant's treating and examining doctors, who believed that claimant could not return to work.  Both doctors' opinions were based, in part, upon claimant's complaints and his own descriptions of his self-perceived physical difficulties.

However, surveillance videotape was filmed of claimant on April 24, 2008, the day he had testified.  The film first showed claimant walking to and from the hearing, limping and leaning on a cane.  After the hearing, the claimant was observed driving his pickup truck to pick up a passenger.  Then, the two traveled in the truck over 30 miles to an auto salvage yard.  There, claimant climbed out of the truck without apparent difficulty and did not use a cane to walk around the salvage yard.  Claimant then laid on the ground to remove a part from the bottom of a junked van and placed a hand jack under the van.  After the other individual changed a tire, claimant used a wrench to tighten the tire's lug nuts.  As he did so, claimant bent and twisted his body.  Claimant is seen on the videotape jumping into the back of the truck and throwing auto parts into it.  During the videotape, claimant is never seen using the cane or walking with a limp.

The WCJ observed the surveillance videotape and concluded that the activities the film documented were contrary to claimant's graphic self-description of severe disability.  The Judge held, inter alia, that as of April 24, 2008, claimant could walk without using cane, could bend over and down, could lie on the ground, and could lift himself from that position without difficulty.  This was contrary to claimant's testimony, on that same day, that his pain made it impossible for him to walk without a cane, and that the pain severely limited his movements.  The WCJ rejected the testimony of claimant and his friends.  He held that although claimant was disabled from his usual occupation, due to the 2005 work injury, as of November 1, 2006 and continuing through April 23, 2008, that claimant's indemnity benefits entitlement was suspended as of April 24, 2008 based upon the videotaped activities that failed to confirm an ongoing inability to work thereafter.

Claimant appealed to the Workers' Compensation Appeal Board (WCAB), contending that the surveillance videotape was insufficient to constitute substantial evidence supportive of a suspension.  The WCAB agreed that surveillance videotape cannot provide the only basis for an employer's Petition for Suspension.  However, for the pending Reinstatement Petition, it is the claimant's burden of proof to establish ongoing disability.  It was held that the videotape supported the WCJ's decision to discredit the testimony of claimant and his three friends, who had asserted that claimant's pain was disabling as of April 24, 2008.  The opinions of the two physicians, based upon claimant's description of the extent of his pain, were likewise properly discredited.  The WCAB therefore held that as a matter of law, the WCJ had not erred in holding that claimant failed to prove continuing disability as of April 24, 2008.

Claimant appealed to the Pennsylvania Commonwealth Court, contending that workers' compensation indemnity benefits eligibility cannot be suspended based upon videotape surveillance evidence.  Claimant further averred that the WCAB had applied the incorrect burden of proof to claimant's pursuit of the Reinstatement Petition, because once the claimant had established the presence of disability, the burden shifted to the employer to prove his continued loss of earnings was not caused by residuals of the work injury.

Commonwealth Court's Holding

On April 24, 2008, claimant described such substantial impairments as the inability to walk without a limp or the assistance of a cane, and that he could not navigate steps within his own home.  These statements were certainly inconsistent with his videotaped activities later that same day.  The WCJ held that the videotape evidence defeated claimant's eligibility for benefits as of April 24, 2008 because it contradicted his own testimony that his pain symptoms were ongoing and incapacitating.

The Court held that if the employer had filed and pursued Termination, Modification, or Suspension Petitions based solely upon videotaped surveillance evidence, that such evidence would be inadequate, standing alone, to sustain the employer's burden of proof to establish a reduction in a claimant's medical disability.  In the context of a Termination, Modification, or Suspension Petition, though, a videotape can be viewed by a physician or by a vocational specialist to assist in formulating opinions about the kinds of job activities a claimant can perform.  Here, however, claimant was pursuing a Reinstatement Petition, where one of his burdens of proof was to establish dates of ongoing or continued disability.  The surveillance film evidence was properly utilized to impeach claimant's testimony describing his own impressions about his self-perceived disability.  In this situation, where claimant's burden of proof was to establish continued disability, employer's responsive evidence was not limited to just medical opinion evidence alone.

Claimant's evidence, consisting of his own testimony and that of his friends, attempted to establish the presence of continuing disability.  This evidence was found to be non-credible by the WCJ, as of April 24, 2008, based upon claimant's videotaped activities from that same date.    

Claimant argued that the credibility determination was irrelevant, and that once he proved a recurrence of his disability due to his work injury, as of November 1, 2006, he was not then charged with the additional burden to prove persistent disability throughout the reinstatement proceedings, but that it became employer's burden to establish when the disability ended.  The Commonwealth Court disagreed with this position.  The Commonwealth Court stated that this is like the situation of a Claim Petition: in Reinstatement Petition proceedings, it is claimant's burden of proof to likewise establish the injury continued to cause disability throughout the pendency of the litigation, and that the burden never shifts to the employer to show the disability has ceased or has been reduced.  The burden of proof for a reinstatement, in addition to demonstrating the recurrence of disability due to the original work injury, also includes a showing that claimant's earning power is once again adversely affected by the disability.  Here, claimant contended his disability, i.e., his inability to participate in work activities, was caused by increased pain from residuals from his work injury. 

The WCJ had concluded that claimant's testimony, asserting that he continued to experience disabling pain due to his work injury beyond April 23, 2008, was false.  Because claimant's medical experts had directly relied upon claimant's reports of such pain, those physicians' opinions were likewise properly discredited as of April 24, 2008, as well.  The surveillance can be used to impeach credibility in this manner.  The WCJ had rejected claimant's testimony that the work injury continued to adversely affect his earning power subsequent to April 23, 2008, and this holding was properly based upon substantial evidence in the form of the surveillance videotape.  In light of the videotaped evidence, claimant did not prove that his disability period, related to residuals from his work injury, had persisted after April 23, 2008.  Therefore, the WCJ's finding of a suspension, effective April 24, 2008, was affirmed. 

Lesson

If skeptical of a claimant's appearance of, or report of, a self-described disability when he is pursuing a Claim or Reinstatement Petition, it is appropriate to consider enlisting surveillance.  Sometimes, you strike gold.  

If you would like a copy of Soja v. WCAB (Phyllis-Carnes Engineering Associates), issued November 7, 2011 by the Pennsylvania Commonwealth Court, or would like to further discuss this case and its ramifications, please do not hesitate to contact any of us.