It is not uncommon for insurers to conduct surveillance of a workers compensation claimant. The New Hampshire Department of Labor [“DOL”] does not have any rules or written procedures expressly requiring the disclosure of all surveillance video and related information prior to a hearing. The workers compensation hearings at the DOL are administrative and quasi-judicial in nature. They are not strictly bound by the rules of evidence followed by courts, but they are still required to be fundamentally fair to both the claimants and insurers/employers. See Ohio Bell Tel. Co. v. P.U.C. of Ohio, 301 U.S. 292, 302-303 (1937) (state administrative hearings must provide minimal constitutional due process).
The DOL rules do require notice, prior to a hearing, of the evidence and witnesses the parties intend to present. Counsel for insurers/employers interpret this requirement as mandating nothing more than saying in writing that they have surveillance information that may be used during a hearing. However, such minimal notice of something that may have a big impact on the hearing is fundamentally unfair.
As far back as 1951, courts recognized that video surveillance could be presented in a manner that provided a “deceptive impression” in a workers compensation case. Ferraro v. Zurcher, 79 A.2d 473, 479 (N.J. 1951). As a result some states have rules in place for workers compensation hearings that require the full disclosure of all video surveillance and related information prior to a hearing out of “a decent respect for the notice requirement of due process and fundamental fairness.” Gross v. Borough of Neptune City, 875 A.2d 251, 253-254 (N.J. Super. 2005); see Kuykendall v. W.C.A.B., 79 Cal.App.4th 369, 405 (2000) (violation of due process not to have video available to both parties’ experts prior to testimony); M/A Com-Phi v. W.C.A.B., 65 Call.App.4th 1020, 1025 (1998) (due process requires review of surveillance video by all medical experts).
Without prior disclosure of all of surveillance video and related reports an insurer can: present selected portions of video that may be out of context; decide to not reveal claimant favorable portions of video or reports; limit the ability of a claimant to prepare for any cross-examination of the investigator who took the video; limit the ability of a claimant to present witnesses to rebut or explain what is seen on the video; and undermines the ability of a claimant to challenge the reliability of the surveillance. A claimant can bring these concerns to the DOL by way of a motion to compel. Such a motion can be based on both the common law rule of completeness, see State v. Keith, 136 N.H. 572, 574 (1992), and fundamental fairness as required by constitutional due process, see In re Stapleford, 156 N.H. 260, 264 (2007). Both of these legal concepts would support an argument that the claimant must have access to all of the surveillance video and related materials prior to a hearing on the merits in order to receive a fair hearing.