Commonwealth Court Clarifies Use Of Surveillance Video

Pennsylvania – Workers' Compensation

Key Points:

• The claimant must prove disability persists during the entire reinstatement proceeding.
• When the claimant has the burden of proof, video surveillance can stand alone.

In the case of Brian Soja v. WCAB, 33 A.3d 702 (Pa. Cmwlth. 2011), the Pennsylvania Commonwealth Court clarified the use of surveillance video with respect to different types of petitions and varying burdens of proof. In this case, Brian Soja sustained a low back injury when he pulled a heavy piece of equipment from a ditch. The injury was accepted, and one month of compensation was paid by way of an agreement for compensation. Less than one year later, benefits were voluntarily reinstated for a one-month period of disability. Later that same year, the claimant suffered intense pain while tying his shoes at home and alleged it was a recurrence of the work injury. The employer did not voluntarily reinstate benefits this time, and the claimant filed a petition to reinstate.

During litigation of the petition to reinstate, the claimant presented medical testimony and personally testified on three separate occasions. During each of his testimonies, the claimant described increasing disability. At the last hearing, he said his legs were constantly numb and that the pain was still increasing. He further stated that he could no longer drive safely because at times he was unable to move his legs. This caused him to build a bathroom and bedroom on the first floor since he was having difficulty getting up and down stairs. He came to the hearing limping and using a cane, which he stated he used pretty much constantly. The employer submitted into evidence videotape surveillance taken the very same day the claimant testified for the third and final time. That video showed the claimant limping and using a cane while walking to and from the hearing. After the hearing, however, the claimant was seen driving his pickup truck to a house where he picked up a passenger. He then drove over 30 miles to an automotive salvage yard. At the salvage yard, he climbed out of the pickup truck and walked around uneven ground without difficulty. The claimant then laid on the ground to remove a part from a salvaged vehicle, placed a hand jack under that same vehicle, used a wrench to tighten lug nuts after his friend changed a tire, jumped into the back of his pickup truck and then threw auto parts into that same truck. Throughout it all, the claimant bent, twisted and walked without apparent difficulty, without a limp and without using a cane.

Based upon the testimony of the claimant's treating physician, the workers' compensation judge concluded that the claimant again became disabled because of the work injury as of the shoe-tying incident. He further found, however, that the claimant failed to prove a continued inability to work and suspended benefits as of the date of the video.

The claimant appealed, alleging that since reinstatement had been granted, the burden of proof shifted to the employer to prove that the claimant was no longer disabled and that a surveillance video alone was insufficient to meet that burden. The Worker's Compensation Appeal Board disagreed and affirmed the judge. The claimant then appealed to the Commonwealth Court.

The Commonwealth Court also affirmed the judge's decision. In doing so, it explained that when a claimant petitions to reinstate benefits, he not only has the burden to establish that his earning power is again adversely affected by a continuation of his original work injury, but also that this disability persisted, not dissipated, throughout the pendency of the entire reinstatement proceedings. It then ruled that, since the burden never shifted to the employer, the video evidence alone could be accepted by the judge to determine that disability no longer existed.

While not germane to the specifics of this case, the court went on to explain that surveillance evidence alone is not sufficient to satisfy a party's burden of proof, although it can be used to help establish the facts. This means that when an employer has the burden, such as in petitions to terminate, suspend or modify, video surveillance must be examined by a physician or vocational expert who can then use that evidence to testify as to the type of job that a claimant could be able to perform and/or earning power.

The lesson in the Soja case is that strong video surveillance is always admissible and, under the right circumstances, can stand alone. When the burden is the claimant's, the video itself can be enough, but when the employer files the petition and has the burden, it needs to be used in conjunction with expert testimony.

* Bill is a shareholder and works in our Bethlehem, Pennsylvania, office. He can be reached at 484.895.2306 or wzscott@mdwcg.com.

Defense Digest, Vol. 18, No. 2, June 2012