MICHAEL SULLIVAN & ASSOCIATES BLOG

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 Workers' Compensation Appeals Board (WCAB) has long recognized that a defendant may withhold surveillance video until after an applicant's deposition. In Downing v. City of Hayward (1988) 16 CWCR 76 (panel decision), the WCAB explained:

The use of artificial intelligence (AI) is increasing throughout society, and its use in law is no exception. AI provides tools for lawyers to quickly and effectively deliver legal services. Many lawyers use AI for both routine and complicated legal tasks, and those who do not risk falling behind.

As an emerging technology, however, AI is not infallible. Even the most advanced AI models have limitations and might not be familiar with all of the procedural and substantive court rules. A recent Workers' Compensation Appeals Board (WCAB) panel decision illustrates the dangers of relying entirely on AI to draft legal pleadings, and provides a stark warning about attorney oversight in an era of increasing reliance on AI.

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) adopted regulations regarding electronic hearings. Remote hearings initially were used during the COVID-19 pandemic, but because such proceedings increased access to the workers' compensation system for parties, their representatives and the public, the WCAB believed that making the changes permanent would benefit the public and the administration of the workers' compensation adjudicatory system.

California Code of Regulations, Title 8, § 10745 states that the WCAB "may order that hearings be conducted electronically." CCR 10750 states that a notice of hearing must include "whether the hearing will be conducted electronically and how to access any electronic hearing."

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.

On May 16, 2025, the 3rd District Court of Appeal in DPR Construction v. WCAB (McClanahan) (2025) 111 Cal. App. 5th 1136 issued a decision clarifying the discovery rules and addressing the standards for credibility findings under LC 5313. The decision was certified for publication June 11, 2025, ensuring its precedential value across California's workers' compensation system.

California Code of Regulations 31.3 establishes the rules for scheduling appointments with a qualified medical evaluator (QME) selected from a panel. CCR 31.3(e) establishes when a QME must be available for an appointment and states, "If a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within ninety (90) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than one-hundred-twenty (120) days after the date of the party's initial request for an appointment." CCR 31.3(e) also allows either party to report the QME's unavailability and requires a replacement panel to issue "when the selected QME is unable to schedule the evaluation within one-hundred-twenty (120) days of the date of that party's initial request for an appointment" unless the parties waive the time limit for scheduling an initial or subsequent evaluation. CCR 31.3(f) applies the provisions in CCR 31.3(e) to both comprehensive medical-legal evaluation by a QME and follow-up comprehensive medical-legal evaluations by a QME.

Labor Code § 4062.2 establishes the procedure for selecting a qualified medical evaluator (QME) when an employee is represented by an attorney. Pursuant to LC 4062.2(c), each party has 10 days from assignment to strike a doctor from a panel, a period extended by the mailbox rule. (Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc).) It adds that if a party fails to timely exercise a strike, "[T]he other party may select any physician who remains on the panel to serve as the medical evaluator."

When an employee is injured during the course of employment due to the negligence of a third party, the worker may file a workers' compensation claim against the employer and a civil claim for damages against the responsible third party. An employee is entitled to workers' compensation benefits regardless of whether he or she or the employer was negligent in causing the injury. In the civil courts, however, comparative negligence applies, "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (Li v. Yellow Cab Co. of California (1975) 13 Cal. 3d 804, 829.)

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.

The issue was addressed long ago in Downing v. City of Hayward (1988) 16 CWCR 76 (panel decision). In that case, the applicant's attorney objected to allowing his client's deposition because the defendant had failed to disclose whether or not it possessed surveillance films of him, and if it did, because it had failed to provide them to the attorney. Downing held that a defendant not only is not obligated to show any surveillance films prior to an applicant's deposition, but that it's also not obligated to disclose whether or not such films in fact exist. The WCAB explained: