PRACTICE TIP: The liberal rules of evidence governing NYS workers’ compensation proceedings permit the admissibility of surveillance evidence even in the absence of the investigator who secured video evidence.
Under WCL Section 118 neither the common law nor statutory rules of evidence nor the technical or formal rules of procedure are binding on the Board. In the Board Panel Decision of NYS Department of Corrections, WCB 50212214 (11/22/06) the Board considered whether surveillance evidence including videotapes could be authenticated by the Director of Operations for an investigative agency rather than the individual investigator who shot video evidence. The individual investigator was no longer available for testimony. In holding that the technical rules of evidence do not apply and recognizing that the video and other evidence could be admissible as business records, the Board Panel reversed the ruling of the Administrative Law Judge. The Board Panel permitted the testimony of the Director of Operations for the investigative agency in order to provide a foundation for the admissibility of surveillance evidence. The Board Panel pointed out that if there is “sufficient evidence in the record to show that the videotape is authentic and relevant to the case,” then the videographer need not be called as a witness.
In presenting a case involving video/surveillance evidence it is best practice to present the individual investigator who undertook the surveillance. However, if the individual investigator is no longer available, the evidence can still be admissible through other means as long as an adequate foundation is provided.
On another topic: Be alert for forthcoming guidance from the Board on labor market attachment now that the Governor’s Executive Order on the Covid-19 emergency has expired.
If you have any questions about this or any other issue, contact David L. Niefer at dniefer@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
