Surveillance, testimony undermine claimant's total disability claim

A hearing officer may rely on video surveillance evidence and the employer's expert's testimony in determining whether an employee remains totally disabled.

Case name: McCoy v. BJ's Wholesale Club, No. 08A-11-005-JEB (Del. Super. Ct. 05/11/09).

Ruling: The Delaware Superior Court affirmed the employer's petition to terminate total disability benefits based on video surveillance and expert testimony that the employee was not totally disabled and incapable of working.

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What it means: A hearing officer may rely on video surveillance evidence and the employer's expert's testimony in determining whether an employee remains totally disabled.

Summary: A wholesale club employee was injured at work and was declared totally disabled. A year later, the employer filed a petition to terminate his benefits, alleging he was no longer totally disabled. The employer presented deposition testimony from a board-certified medical expert who had both examined the employee and later viewed video surveillance of the employee. The surveillance showed the employee bending, carrying fishing supplies, standing for several hours fishing, casting a rod, picking up a cooler with ice and fish, and walking without a cane. The expert opined that based on the employee's subjective complaints, he would not have been able to perform the activities on the tape. He also stated that he believed the employee had magnified his symptoms and that ongoing treatment other than pain management was not necessary.

The employee argued that the video was taken on one of his "good days" and that he experienced great pain afterward. He also argued that the hearing officer did not take into account the other five days of footage which showed nothing of interest. The court found the hearing officer had acted within her discretion in viewing the facts, and was entitled to reduce the employee's benefits based on the evidence presented. The court granted the employer's petition to terminate the employee's total disability benefits. However, the employer conceded the employee was still entitled to receive partial disability benefits.

June 15, 2009

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