A court of appeals dramatically changed the rules of discovery regarding surveillance videos in Missouri worker's compensation.
A claimant is entitled to a surveillance video even after the Missouri legislature specifically changed the law to state a claimant cannot obtain a video based on a statutory demand for statements because videos are not "statements." The former practice allowed an employer to produce a video at hearing for maximum impeachment. The new case is Feltz v Bob Sight Ford Inc., WD 72969 (Mo. App. 2011).
Missouri's comp statute has two separate provisions concerning discovery: 287.215, which specifically addresses statements, and 287.560, which defaults to the general rules of discovery.
The court of appeals concluded even though the legislature excluded video from 287.215, it didn't make a similar exclusion in 287.560. As a result, the legislative reform merely changes the manner in which a claimant can request a video and the court found no legislative intent to prevent discovery of a video. A claimant cannot obtain a video by a 30 day statement demand under 287.215, but is entitled to a video if requested under 287.560 with a subpoena. There is no duty to turn over a tape merely because claimant filed a claim or limited a request as a .215 motion.
Videos are important weapons against fraud and exaggeration. The new disclosure rule from Feltz treats comp claimants like other plaintiffs. They cannot be surprised by tape and now have more time to prepare explanations for any indiscretions captured on tape.
Claimant alleged he tripped over a carpet in 2008. The court found no abuse of discretion by the circuit court to order the release of any video. BSF has appealed the permanent order of mandamus compelling ALJ Fowler not to quash the original subpoena.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.
Lexis.com subscribers can access the Lexis enhanced version of the Feltz v Bob Sight Ford Inc., WD 72969 (Mo. App. 2011) decision with summary, headnotes, and Shepard's.
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