107 A.D.3d 1231
N.Y. App. Div.2013Background
- In 2007 claimant sustained work-related injuries to his right shoulder, right hip and right leg and was awarded workers’ compensation benefits.
- At the 2011 hearing, the WCLJ continued benefits as temporary total disability and asked claimant about activities affecting his award.
- After the questioning, the carrier sought to introduce surveillance video and investigator testimony.
- The WCLJ precluded the surveillance materials, ruling the carrier failed to disclose their existence prior to claimant’s testimony.
- The Board affirmed the decision; the carrier appealed.
- The court held that disclosure requirements applied and the preclusion was proper because the carrier prompted the questioning at the end of the hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether surveillance evidence could be precluded for failure to disclose | Claimant argues disclosure rules apply | Carrier argues prompting questions justifies preclusion | Preclusion upheld |
Key Cases Cited
- Matter of Monzon v Sam Bernardi Constr., Inc., 60 AD3d 1261 (N.Y. App. Div. 1st Dept 2009) (disclosure of surveillance materials before testimony)
- Matter of Williams v Lloyd Gunther Ele. Serv., Inc., 104 AD3d 1013 (N.Y. App. Div. 3rd Dept 2013) (surveillance disclosure standards in WC proceedings)
- Catapano v Jaw, Inc., 73 AD3d 1361 (N.Y. App. Div. 3rd Dept 2010) (surveillance disclosure and gamesmanship considerations)