Larson’s Spotlight on Recent Cases: Surveillance Video Rejected When Not Disclosed to Claimant Prior to Testimony

Larson's Spotlight on Surveillance, Workers' Comp Insurance, Retaliatory Discharge, and Reduction of Benefits. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

NY: Carrier May Not Offer Surveillance Video Where Existence of Surveillance and Investigative Materials Was Not Disclosed to Claimant Prior to Testimony

The claimant sustained a work-related injury in 2007 and was awarded workers' compensation benefits.  At a 2011 hearing, the Workers' Compensation Law Judge continued benefits pursuant to a temporary total disability and-at the request of the employer and its workers' compensation carrier-questioned claimant as to whether he had engaged in any work activities that might affect his compensation award.  Immediately after the WCLJ finished these questions, the carrier raised the issue of whether claimant had violated Workers' Compensation Law § 114-a, and requested an opportunity to present surveillance video and the testimony of its investigator. The WCLJ denied the carrier's request to suspend benefits and precluded the presentation of the video and related testimony, finding that the carrier was required to inform claimant of the existence of the video prior to claimant's testimony about his work activities. On appeal, the court affirmed.  Observing that it was 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, the court indicated that the carrier specifically prompted the line of questioning by the WCLJ 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 WCLJ and before the claimant testified about returning to work.

See Morelli v. Tops Markets, 2013 N.Y. App. Div. LEXIS 4327 (June 13, 2013) [2013 N.Y. App. Div. LEXIS 4327 (June 13, 2013)].

See generally Larson's Workers' Compensation Law, § 127.10 [127.10].

NC: $70,000 Personal Debt Incurred Through Husband's Failure to Secure Comp Coverage for Injured Employee of Husband's Business Was Not a "Marital Debt" and Should Not Be Considered in the Equitable Distribution of Assets Between Divorcing Husband and Wife

A North Carolina appellate court recently affirmed that part of a trial court's order that had determined that that a $70,000 debt incurred by the defendant-husband during the marriage related to the husband's failure to provide workers' compensation coverage to an injured employee, and for which the defendant was individually liable, was not for the benefit of the marriage and thus, not marital debt.  Accordingly, when calculating the marital estate, the workers' compensation award was given a value of $0.00.  The husband contended that because his business was operated for the benefit of the marriage and that the wife worked in the business alongside him, the debt incurred during the marriage as a result of a workers' compensation action was marital debt. The appellate court disagreed, indicating that given the pertinent finding of fact supported by competent evidence in the record that the failure to have workers' compensation insurance was through no fault of the plaintiff-wife, the conclusion of the trial court that the workers' compensation debt was not a marital debt was proper in light of the facts as found.

See Allen v. Allen, 2013 N.C. App. LEXIS 650 (June 18, 2013) [2013 N.C. App. LEXIS 650 (June 18, 2013)].

See generally Larson's Workers' Compensation Law, § 89.08 [89.08].

CT: Plaintiff's Retaliatory Discharge Action Fails Where Discharge Was Part of Company-Wide Restructuring

The Appellate Court of Connecticut recently affirmed the decision of a judge trial referee that granted the defendant-employer's motion for summary judgment in a retaliatory discharge action filed against the defendant by a former employer.  The appellate court noted that the plaintiff had been terminated after a company-wide restructuring resulted in the elimination of her position and that the plaintiff was offered a severance package, which she rejected.  The court reasoned that it was not required to examine every reason or explanation set forth by the defendant for the termination, as long as the employer met its burden of producing one legitimate reason.  The court added that the plaintiff failed to meet her burden of providing evidence that the defendant's reason for terminating her employment was merely pretextual.

See Callender v. Reflexite Corp., 143 Conn. App. 351, 2013 Conn. App. LEXIS 318 (June 18, 2013) [143 Conn. App. 351, 2013 Conn. App. LEXIS 318 (June 18, 2013)].

See generally Larson's Workers' Compensation Law, § 104.07 [104.07].

LA: Court Affirms Judge's Refusal to Reduce Benefits Due to Unsuccessful Weight Loss Program

A Louisiana appellate court recently affirmed a judgment of the Office of Workers' Compensation that denied the employer's motion to compel rehabilitation and for reduction of benefits, or alternatively, to condition further disability benefits on claimant's weight loss in compliance with a proper medical treatment plan.  The claimant, a warehouse clerk, injured his back while lifting some pallets.  During the course of his treatment, the claimant was prescribed medication and physical therapy to help alleviate his back pain. When these therapies proved unsuccessful, the patient, whose weight fluctuated at or over 600 pounds, was also given a prescription for Weight Watchers for weight loss. Noting that the decision to reduce claimant's benefits was within the discretion of the judge, that the prescription for weight loss had not so much been given to claimant as it had been requested by claimant, and that the claimant had been substantially overweight for most of his life, and all of his working time with the employer, the court found that the judge did not err in finding the claimant was cooperative and compliant with the weight loss rehabilitation offered to him, in spite of his lack of weight loss.

See Amerisure Ins. Co. v. Jones, 2013 La. App. LEXIS 1205 (June 14, 2013) [2013 La. App. LEXIS 1205 (June 14, 2013)]

See generally Larson's Workers' Compensation Law, § 10.10 [10.10].

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

For more information about LexisNexis products and solutions connect with us through our corporate site.