Hamberger & Weiss LLP

Appellate Division Decision Creates Challenges for Carriers Seeking to Admit Video Evidence

Maffei v. Russin Lumber Corp., decided 1/19/17, has created potential pitfalls for carriers seeking to introduce video surveillance as evidence. The decision holds that video surveillance must be produced and entered into evidence at the time of an expedited hearing, even if submission of the video was raised for the first time at that expedited hearing. Additional language in the decision may support an argument for extension of this rule to cases outside of the expedited hearing process. We invite you to review our full analysis of the Maffei decision on our website.

Briefly, here are the practical claim handling and litigation implications from the Maffei decision:

1.Carriers must carefully scrutinize hearing notices to determine whether the Board has invoked WCL §25(3)(d) for an expedited hearing. This will be clearly stated on the hearing notice. If the hearing is expedited and there is any potential for testimony from the claimant on activities where video surveillance is present, the video must be provided to defense counsel, along with enough DVD copies in WMV or AVI format (See, Board Subject Number 046-237), so that a copy of the DVD can be provided to the WCLJ and claimant’s counsel at the conclusion of testimony.

2. Claim handlers will need to communicate with defense counsel to flag the video surveillance or other evidence as something that may need to be introduced into evidence at the hearing without adjournment, to ensure that the important portions of the video or other evidence are not overlooked.

3. Carriers will need to ensure that the investigator who shot the video, or the custodian of the video (if taken from security cameras or other fixed location cameras) is present at the expedited hearing to testify about the authenticity of the video footage in case the claimant challenges the admissibility or authenticity of the footage. For documentary evidence, a witness who can testify to the authenticity of the documents will be needed.

4. Because some language in the court’s decision potentially allows for application of this harsh rule to non-expedited cases, claim handlers should contact defense counsel as soon as possible to determine an appropriate strategy any time a non-expedited hearing is scheduled for claimant testimony. Defense counsel will need to be able to review video or other documentary evidence to determine whether it may be needed at the hearing. Counsel will also be able to assist with subpoenaing any necessary witnesses to establish a foundation for admissibility of the video or documents at issue at the hearing.

It remains to be seen how the Board and the claimants' bar will use this decision. Until application of this case is clarified by further Board or court decisions, caution and protective preparation are advisable.

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