Surveillance can be helpful evidence to dispute the compensability of a workers’ compensation claim, the employee’s physical condition and/or the employee’s ability to return to work.  But do your homework up front to ensure your surveillance is admitted into evidence by the Industrial Commission.  

For insurance carriers and employers, this means:

• Establishing proper procedures and training your employees or vendors who handle surveillance footage from your onsite security cameras;
• Appropriately collecting video footage from other store surveillance cameras; and/or
• Hiring experienced, qualified private investigators.

Videotapes containing surveillance footage of claimants are admissible for both illustrative and substantive purposes as long as the proper foundation and evidentiary requirements are met.  There are 3 significant areas of inquiry when the Industrial Commission reviews the foundation for admissibility of a videotape.  Since the employee can object to admissibility during the initial hearing as well as on appeal, it’s vital that you put on satisfactory evidence for all 3 areas of inquiry at the initial hearing.

The 3 requirements to establish admissibility of videotaped surveillance evidence, as well as the testimony that meets these requirements, are:

1) Was the camera and taping system properly maintained and properly operating when the video was made?

Witness testimony may include:  the type of surveillance/recording equipment; the maintenance schedule and history; and the proper function of the surveillance/recording equipment on the day in question.

2) Does the video accurately present the events depicted?

Witness testimony may include:  review of the video; familiarity with the location and events depicted on the video; and identification of the employee on the video

3) Was there an unbroken chain of custody?    

Witness testimony may include: the process of recording the video to tape; the storage of the videotape from its creation to hearing; and the review of the actual videotape to be admitted into evidence at the hearing. 

While this post provides an overview of this issue, you’ll want to be prepared to back up all your available defenses at an Industrial Commission hearing.