Duong v. Hartford Ins. – Surveillance of Activity

Applicant injured his neck on June 20, 2008 in the course of employment.

Defendant obtained videotape of activities engaged in by the applicant that appeared inconsistent with the disability he was claiming. Defendant intended to show the videotapes to a QME in psychiatry who was to evaluate applicant’s disability.

Applicant objected and requested a hearing on the issue.

At the hearing, the applicant asserted that the videotapes were inadmissible because they violated his right to privacy and should not be provided to the evaluating physicians.

An investigator testified that he conducted the surveillance of the applicant by following him along the street and into the Town & Country Mobile Home Park. He filmed applicant entirely from his car. He further testified, that there were no signs prohibiting trespassing that he observed from the street when entering the driveway. Applicant was also filmed inside an Albertson’s Grocery store. The owner of the investigative agency testified he understood that one cannot film on private property, and that he so instructed his employees.

A resident of the mobile home park testified the applicant had been visiting him at his invitation and that there were signs at each entrance to the park stating, “invitees and guests only, no trespassing, violator’s will be prosecuted”. Applicant submitted a photograph of Albertson’s logo with the words “no videotaping, photography, audio taping, anywhere in the store premises without prior consent”.

The WCJ found that defendant had obtained the videotapes in violation of signs prohibiting trespassing and videotaping and excluded the videotapes from evidence. WCJ’s opinion on the decision explain the defendants own witnesses testimony established that the videotaping was on private property in the face of prohibitory signs that were clearly posted and violated the rules of the premises where the filming took place.

Defendants filed a petition for reconsideration.

The WCAB granted reconsideration and concluded that the WCJ had erred. The panel observed that the sole basis for the WCJ’s decision to exclude the video evidence was that the filming was accomplished in a manner that violated the rules of both properties and the surveillance company itself, and that there is an important policy consideration to be factored in where the evidence is obtained in a manner which violated posted rules and company policies.

The WCJ did not, however, define or elaborate on the policy consideration involved or explain how it was to be factored.

In the opinion of the, WCAB the WCJ had failed to provide any legal authority for decision.

An unidentified policy consideration without basis in statutory or procedural law cannot be the basis for a WCJ’s decision.

Applicant had not cited any statute that prevents private investigators from obtaining video evidence in violation of rules posted by private property owners.

Labor Code 435 applies only to rest rooms, locker rooms, and other rooms, designated for changing clothes, and Penal Code 647 (j) applies only to videotaping persons in various stages of undress. Civil Code 1708. 8, is not only limited to the creation of tort liability but has an exception for surveillance videos when fraudulent conduct is suspected.

The panel added that it was not persuaded that the applicant had a reasonable expectation of privacy in either the mobile home parking lot or in the grocery store. The constitutional right to privacy is not absolute.

The person alleging invasion of privacy must establish all the following: (1) a legally protected privacy interest, (2) a reasonable expectation of privacy in the circumstances, and (3) conduct by the defendant constituting a serious invasion of that privacy. (Hill v. NCAA, 7 C4th 1)

Even if these elements are established, however, no violation occurs if the intrusion is justified by one or more competing interests (such as fraud prevention) according to the case of Hernandez v. Hillside (47 C4th 272), which states that as a general rule, there is no expectation of privacy in an open and accessible area within the site and hearing of customers or visitors of the general public.

The no trespassing signs at the mobile home park were for the benefit of residents, not for the applicant who did not live there. Likewise, the notice at the grocery store was presumably posted for the store’s protection and not applicants.

Applicant failed to establish a reasonable expectation of privacy in either location. Moreover, a competing interest justified an intrusion on applicant’s privacy, here preventing possible harm to defendant through fraud.

An injured worker who claims workers’ compensation must expect a reasonable investigation by the employer or insurer.

The WCAB concluded that the WCJ should not have excluded the video evidence; it was admissible and should be shown to the medical evaluators in treating physician.

Board found the order was not final, so the proper remedy was a petition for removal. The board then granted removal and found that the video evidence was admissible and could be provided to any evaluating treating physicians.

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