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:
At his deposition, the least that an applicant should be required to do is to state the truth as to his physical abilities, and his duty to state the truth should not depend on whether the defendant has [sic] nor has not observed and made a record of his daily activities. Moreover, the ascertainment of the truth is also best served by allowing a defendant to depose an applicant before he has seen, or has been informed of the existence of, any surveillance films.
Still, questions persist regarding the proper procedure when a defendant wishes to submit surveillance video to a QME. In Espedal v. Grass Valley Police Department, 2012 Cal. Wrk. Comp. P.D. LEXIS 123, the WCAB upheld a WCJ's decision that surveillance films were inadmissible when the defendant withheld the films through two separate applicant depositions, despite timely demands for production after each, and the defendant disclosed the video only after the QME had issued a report. The WCAB found that the defendant’s actions constituted a willful violation of discovery rules and an improper attempt to stretch the Downing rule beyond its intended scope. (See also Horton v. 7UP Bottling Co., 2013 Cal. Wrk. Comp. P.D. LEXIS 55.)
A recent WCAB panel decision, in Pollard v. Lemstra Cattle Co., 2025 Cal. Wrk. Comp. P.D. LEXIS 219, addresses a different but related issue: the proper procedure for submitting sub rosa video to a QME when an applicant's deposition has not yet occurred. The decision clarifies that the procedural rules for QME submissions under Labor Code § 4062.3 operate independently of the discovery tactics surrounding a deposition.
In Pollard, the defendant obtained surveillance video of the applicant on multiple dates. After the parties had completed the deposition of the QME, the defendant sent a copy of the video to the applicant's attorney. In the cover letter, the defendant proposed submitting the video to the QME for review, giving the applicant 20 days to object, in accordance with the procedure outlined in LC 4062.3(b). The applicant's attorney filed a timely objection to the submission. Meanwhile, the primary treating physician (PTP) also reviewed the video and issued a report based on his findings.
The matter proceeded to trial, where a workers' compensation judge (WCJ) found that it was improper for the defendant to withhold the video until after the QME's deposition and then attempt to submit it. The WCJ issued an order prohibiting the defendant from sending the video to the QME and, consequently, excluded the PTP's report because it was based on the same video. The defendant filed a petition for removal, challenging the WCJ's order.
The WCAB granted the defendant's petition, rescinded the WCJ's decision and substituted a new finding that the defendant was entitled to submit the surveillance video to the QME.
The WCAB explained, "While our case law has historically allowed a defendant to withhold surveillance video when the deposition of the applicant is pending, prompt and continuing service of surveillance video is required following the completion of the deposition." It stated:
Here, however, it does not appear that applicant's deposition has been accomplished, nor has the defendant sought to introduce the sub rosa video into evidence at mandatory settlement conference on the case in chief. Rather, defendant has provided applicant with a copy of the sub rosa video and proposed to submit the video to the QME for review unless applicant objected within twenty days pursuant to section 4062.3(b) ... On this record, we discern no violation of our Rules or other statutory prohibition that would preclude the QME's review of sub rosa video.
The WCAB added that although LC 4062.3 and CCR 35 specify rules for submission of information to a QME, applicant cited to no statutory or regulatory authority that would otherwise preclude the submission of sub rosa video evidence to PTP. As a result, it found that there was also no basis to exclude the PTP's report, and the WCAB ordered it admitted into evidence.
Read together, Pollard and Espedal provide a roadmap for practitioners. The key distinction driving the opposite outcomes in Pollard and Espedal is procedural compliance and whether the applicant's deposition has been conducted.
In Espedal, the defendant violated discovery obligations by failing to produce video after the applicant's deposition and demand. Espedal serves as a cautionary tale, illustrating that withholding surveillance after taking an applicant's deposition in violation of discovery demands could result in the evidence being excluded.
The Pollard decision clarifies that the strategic considerations for withholding video pending an applicant's deposition are separate from the procedural requirements for submitting materials to a QME. In Pollard, the defendant followed the statutory procedure under LC 4062.3 for a completely different purpose: submitting evidence for a medical-legal review. The defendant in Pollard prevailed because it created a clear record of compliance by properly serving the video on the applicant's attorney and adhering to the 20-day objection period.
Practitioners should note that none of the cases cited above is binding. Although the cases are citable, further decisions in this area could be dependent on the facts of each case.
For further discussion on the use of surveillance evidence, see "Sullivan on Comp" Section 14.13 Surveillance. For additional discussion on providing materials to QMEs, see Section 14.41 Communication with Agreed Medical Examiner and Qualified Medical Evaluator.