California: Noteworthy Panel Decision on Sub Rosa Films

Juan Licea, Applicant v. Screwmatic, Insurance Company of the West, Defendants

W.C.A.B. No. ADJ10568300—WCJ Roger A. Tolman, Jr. (LAO); WCAB Panel: Commissioner Razo, Chair Zalewski, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed January 28, 2022

Disposition: Reconsideration is granted, and the May 21, 2021 Findings and Orders are rescinded, and substituted with a new Findings of Fact and Order.

Counsel: For applicant—Law Offices of Jie Ci Ding, Inc.

For defendants—Tobin Lucks

Evidence—Surveillance Video—Submission of Nonmedical Records to Medical Evaluator—WCAB, granting reconsideration and rescinding WCJ’s decision, held that WCJ erroneously applied Civil Code § 1708.8 to find that defendant, having established “articulable suspicion” to support filming applicant, was permitted to submit sub rosa surveillance video to qualified medical evaluator (QME) for review, and WCAB substituted new finding that Civil Code § 1708.8 did not apply in these proceedings, when WCAB reasoned that per Labor Code §§ 5708 and 5709, WCAB is not bound by common law or statutory rules of evidence and may decide issues in more informal, flexible manner in order to achieve substantial justice, that Civil Code § 1708.8, which restricts filming of individuals without their permission, describes prerequisites to civil cause of action and does not apply as evidentiary bar in workers’ compensation proceedings, and that although applicant retains fundamental right to privacy under California Constitution, applicant did not establish reasonable expectation of privacy for conduct filmed in front yard of home that was plainly visible from street and sidewalk or in publicly accessible parking lots where he was surveilled; WCAB further found that pursuant to Labor Code § 4062.3(a)(2), sub rosa films obtained by defendant were nonmedical records relevant to determination of medical issue, and, on that basis, must be provided to QME. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 22.06[3], 25.29[2]; Rassp & Herlick, California Workers' Compensation Law, Ch. 15, § 15.03[4][e], Ch. 16, § 16.65.]

Publication Status: CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.