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September 28, 2010

Use of video tapes in evaluating disability claims

Use of video tapes in evaluating disability claims
Aprea v Sonn, NYS Supreme Court [Not selected for publication in the Official Reports]

If an employer suspects that an individual receiving Workers’ Compensation benefits or benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law is malingering, it may decide to arrange for the surveillance of the individual and make video tapes of the individual’s activities. In the Aprea case, the court addresses the question of the right of the individual to see the video tape.

John F. Aprea sued a number of doctors. The physicians had arranged for “a videotaped surveillance” of Aprea and wanted to depose [question under oath] him before providing him with a copy of the tape. Aprea, on the other hand, demanded that he be allowed to view the tape before being deposed. The doctors contended that was necessary to question Aprea before he viewed the video tape because it showed him performing physical activities that are “inconsistent with his claims of disability.”

State Supreme Court Justice Janice Bowman pointed to a case dealing with this exact issue, DiMichel v. South Buffalo Railroad Company, 80 NY2d 184. In DiMichel, Justice Bowman said, the Court of Appeals “recognized that an order delaying discovery of films until after the plaintiff has given a deposition minimizes the potential for tailored testimony.”

Justice Bowman also observed that “subsequent to the DiMichel decision, and seemingly in response to it, the legislature amended CPLR Section 3101 by adding subdivision (1) requiring “full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, ... involving the plaintiff ... [and although] silent as to the time frame in which such disclosure is required ... [did not] seek to overrule the Court of Appeals decision in DiMichel.”

Aprea was directed to submit to a further deposition before he would be allowed to view the video tapes. After being deposed, said the court, he would be entitled to view all of the surveillance films during the surveillance.
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