“Oh! What A Tangled Web”

January 2019

By: Farrah L. Hagan

Petitioners can often explain away film of them doing activities outside of their restrictions on just one occasion. The key to effectively using surveillance is to capture more than a single episode. Surveillance is most damning when it shows a pattern of exertion falling outside of existing physical limitations.

Once such surveillance is developed, its existence should be guarded against disclosure. Keeping it secure until trial is often the most effective way of impeaching petitioner’s credibility. Thus, think carefully before sending surveillance video to your IME doctor for review. If you do, you’ll have to turn it over to the petitioner’s attorney before the doctor’s testimony. Once film is in the hands of petitioner, he can inform his testimony accordingly and you can expect he will be ready with an explanation of his activity and how badly he felt afterwards.

Surveillance was used to maximum effect by BCM in the recent trial before Arbitrator Nowak. Petitioner was hurt when a semi-tractor trailer ran over his foot, causing a crush injury and fracture to the right foot and a lateral collateral ligament sprain of the right knee. More than a year later and after being examined by board-certified orthopedic foot surgeons and CRPS specialists, petitioner was still debilitated. The doctors could not explain why petitioner was in so much pain, but would not permit his return to work.

His treating physicians recommended a tarsal tunnel surgery, the efficacy of which was questionable. Respondent’s IME doctor opined that even if petitioner underwent the recommended surgery, it would not alleviate the majority of his symptoms and pain. In effect, he would still have disability based upon his alleged pain complaints.

Petitioner was a manual laborer with a 9th grade education. Respondent was concerned that if petitioner underwent the surgery, it would actually cause further damage and disability thereby increasing the permanency aspect of the case significantly. If petitioner were given permanent restrictions after the surgery, it would prove extremely difficult to find him a suitable job. Further underlying Respondent’s wariness that surgery was necessary was video reflecting that while petitioner acted one role “on stage,” he played another part entirely without an audience.

Given the totality of circumstances, the Firm concluded that the timing was optimal for trial. Thus, it forced the case to hearing using a reverse 19(b) Petition, a tool often overlooked, but very beneficial.

At the hearing brought about by the reverse 19(b), petitioner’s attorney sought an award of denied medical bills and approval of a tarsal tunnel surgery, estimated at $20,000.00. In addition, petitioner’s attorney sought penalties and attorney’s fees by alleging that respondent’s conduct in not approving additional medical treatment, including surgery, was in bad faith and vexatious.

At trial, the petitioner testified he had foot pain which he rated as a constant 9-10/10, was unable to walk without a CAM walker boot or crutches, and had been unable to work. BCM committed petitioner on cross-examination to this very detailed portrait of disability and in fact drew out additional details, including that he never wore normal shoes, was always in his CAM walker boot or crutches, and wanted surgery to fix his foot.

In another feature unique to this litigation, petitioner’s treating physician appeared at trial to testify “live.” He advised the Arbitrator that petitioner was in significant pain and could not work. He opined further that petitioner needed the tarsal tunnel surgery and attendant care and concluded that Respondent’s failure to approve the procedure may have guaranteed a poor outcome.

Once petitioner had testified, BCM introduced the surveillance video showing him not only walking in heavy construction boots but also using his injured foot to kick apart and break down wooden furniture.

When petitioner’s treating doctor was confronted with the tape, he changed his opinions. He conceded that he could no longer testify to a reasonable degree of medical certainty that petitioner required surgery or work restrictions. Instead, he recommended a Functional Capacity Evaluation (FCE).

Obviously, the petitioner’s case crumbled upon viewing the video, and the case settled on a highly-disputed basis to close out all issues including disputed medical bills and permanency for $7,500.00. As they say, “[a] picture paints a thousand words, but a video shows a thousand pictures.”