Case name: Garden Time Inc., 109 NYWCLR 240 (N.Y. W.C.B. Panel 2009).
A New York Workers' Compensation Board panel held that surveillance DVDs and investigative reports were properly precluded from a hearing.
What it means: An investigator who is testifying regarding a surveillance DVD and report should become familiar with the investigation, review the investigative reports, and view the surveillance DVD before taking the stand.
Summary: At a hearing, the carrier brought an investigator to testify regarding surveillance footage of a worker. The investigator indicated he had not conducted the investigation and had no personal knowledge of the investigation. While the investigator indicated that he had read the investigative reports, there was no indication that his review of another investigator's reports, without viewing the surveillance, would enable him to testify regarding whether the DVD was a true and correct copy of the surveillance conducted or to otherwise provide sufficient testimony regarding the investigation. Furthermore, there was no indication that the investigator who appeared to testify was an officer or supervisor or otherwise in charge of assigning work or maintaining records at the investigative agency so that he could testify to the specifics of the investigation, the dates on which the investigation was conducted, or the maintaining of reports or other records related to the investigation. Because no meaningful cross-examination could be conducted, the panel affirmed the workers' compensation law judge's decision to exclude the DVD.
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March 1, 2010
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