Babbar v. WCAB (W/D) (79 CCC 1525)


Applicant suffered an admitted industrial injury to his foot and psyche.


Applicant was deposed on March 11, 2011, after which he made a written demand for any sub rosa evidence obtained by defendant.


Defendant obtained sub rosa video on applicant on January 25, 2011.


The video was never provided to the applicant is requested.


The parties selected two Agreed Medical Evaluators to which medical reports were submitted. Both physicians found applicant’s injuries caused significant PD.


Applicant obtained a report from a vocational expert on October 23, 2013 and based on that made a settlement demand for one hundred percent permanent disability. Defendant acknowledged receipt of the demand and requested an applicant to her file a DOR because defendants invoke expert had not yet issued a report.


On January 14, 2014 having not received defendant’s vocational report applicant filed a DOR. Defendant objected on the basis it had not yet received their vocational report but made no mention in its objection of any sub rosa video.


On January 23, 2014 the parties were notified that an MSC was sent on February 7, 2014.


On January 27, 2014 defendant served applicant with the sub rosa video that was obtained on November 14, 2013, November 15, 2013 and December 18, 2013. The 2011 sub rosa video was served by defendant for the first time on January 31, 2014.


No investigative reports were served with the video.


On January 29, 2014 defendant served their vocational report.


At the MSC, the WCJ ordered defendant to serve all investigative reports and continue the MSC to allow applicant time to review the newly disclosed evidence.


At the second MSC the parties provide oral argument over the content of the video, the videos admissibility and the propriety of closing discovery and the matter proceeded to trial versus seeking the opinions of the Agreed Medical Evaluators and vocational experts concerning the impact of the sub rosa films.


The WCJ was persuaded that the newly discovered evidence was significant and that, on balance, the interest of achieving substantial justice through a complete evidentiary record outweighed any impropriety and defendants part in not having developed the record earlier by obtaining expert opinion regarding the impact of the video on applicants permanent disability. The WCJ ordered the case off calendar for further discovery as it related to the sub rosa video.


Applicant filed a Petition for Removal asserting that the sub rosa video should have been excluded because of defendant’s failure to timely disclose the sub rosa video and and obtaining supplemental medical evidence and that pursuant to LC § 5502 (d) (3) discovery should have ended in the matter set for trial.


The WCJ recommended that reconsideration be denied. In his report WCJ indicated that the issue was whether the 2013 video obtained by defendant should have been excluded from evidence, based on either defendant’s two-year delay disclosing the 2011 video or its 39 day delay in disclosing the 2013 video. Was it error for the WCJ to order the matter off calendar and allow further discovery.


The WCJ agreed with applicant’s position that defendant breached its duty to disclose 2011 sub rosa video after applicant’s demand for production and that the video could be excluded on that basis. However, the WCJ pointed out that defendants apparently did not intend to introduce the 2011 video because it was unhelpful, and applicant did not specifically request exclusion of the video.


The WCJ also found that to exclude the 2013 sub rosa video obtained years later and served before the MSC, as a remedy for defendants failure to disclose the 2011 video, would be overly for Coney and, especially given that the delay in disclosure from December 18, 2013 (the last day of surveillance) until January 27, 2014 was, according to the WCJ, not sufficiently significant to warn exclusion.


Additionally the WCJ pointed out that defendant disclose the sub rosa evidence prior to the MSC rather than after the MSC thereby complying with its statutory duty pursuant to Labor Code § 5502 (d) (3).


The WCJ was likewise not persuaded by applicant’s lack of due diligence contention in which applicant asserted that, if defendant had disclosed and serve the video immediately (just after 12/18/2013), parties could have obtained supplemental reports from the Agreed Medical Evaluators by the time of the MSC.


The WCJ found a six-week delay to be reasonable and pointed out that the case could be reactivated as soon as the supplemental reports were obtained. Moreover, the WCJ found no due process violation and explain why you believe further discovery was necessary in light of the sub rosa video. It was the judge’s opinion that the video evidence, already determined to be admissible, needed to be seen by the medical experts, at least, in order that its significance be weighed against the impairment reported in the limitations founds by those experts. The WCJ remain persuaded that stamp stanch old justice required such an inquiry.


The WCJ opined that any prejudice caused by defendants failure to mention the sub rosa video in its timely objection to applicants DOR on other grounds, was cured by disclosure and service of the evidence part of the MSC, thereby providing applicant with an opportunity to review the video.


The WCJ also noted that the 2013 video had been described as extremely telling, in terms of applicant’s residual disability, and is materially inconsistent with the physicians reporting on the applicants physical capabilities.


The WCAB denied reconsideration.


Applicant filed a petition for writ of review which was denied.


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