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In Duong v. Automobile Club of Southern California, 2014 Cal. Wrk. Comp. P.D. LEXIS –, a WCAB panel held that a sub rosa video recorded by the defendant in the parking lot of a mobile home park (where the applicant did not live) and inside an Albertson’s grocery store was admissible and could be provided to any medical-legal evaluator or treating physician. The WCAB held that the video was not properly excluded by the WCJ on basis that it violated no trespassing/private property signs at the properties where the filming occurred or that it violated the surveillance company’s rules against filming on private property.
The WCAB explained that Civil Code § 1708.8 (the “anti-paparazzi” statute) was inapplicable in a workers’ compensation proceeding in that the statute addresses civil tort liability for invasion of privacy whereas proceedings before the WCAB pertain to the admissibility of evidence before the Appeals Board.
The WCAB held that the WCJ did not identify any legal authority for her decision to exclude the sub rosa video, and that the applicant established no statutory restriction preventing the defendant’s private investigators from obtaining sub rosa video in an apparent violation of rules posted by private property owners.
As stated by the WCAB, the applicant did not have reasonable expectation of privacy in either the parking lot of the mobile home or inside of Albertson’s, as the areas where the filming occurred were open and accessible to the public.
The WCAB concluded that any intrusion that may have occurred to the applicant’s privacy was justified by the employer’s competing interest to protect against workers’ compensation fraud.
Read the Duong noteworthy panel decision.
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