The use of sub rosa surveillance video is a powerful tool in workers' compensation, often used to challenge an applicant’s credibility regarding the claimed level of disability. The timing and procedure for providing such evidence can be a point of significant dispute.
The procedural rules governing discovery in workers' compensation cases serve critical purposes in ensuring fair and efficient adjudication. In particular, Labor Code 5502(d)(3) establishes that discovery closes on the date of the mandatory settlement conference (MSC), with strict limitations on the admission of evidence not disclosed in pretrial conference statements. Those rules are fundamental to the workers' compensation system's goal of expeditious resolution while maintaining due process protections.
Video evidence is admissible in workers' compensation proceedings. Generally, it's obtained by a defendant after an applicant reports an injury and the defendant questions the applicant's credibility. This type of evidence can be called surveillance evidence or sub rosa evidence, and the parties often dispute when it must be produced.
Labor Code § 3600(a)(7) establishes the initial physical aggressor defense. It explains that a claim is not compensable when the injury arises "out of an altercation in which the injured employee is the initial physical aggressor." That defense embodies the legislative intent to exclude from compensation those who introduce violence into the workplace.
