Larson’s Spotlight on Recent Cases: Video Evidence Not Disqualified for Three-Second Gap

Larson's Spotlight on Videotape Evidence, Going and Coming Rule, PTSD, and Foot Injury. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

NC: Three-Second Gap in Video Goes to Weight of Evidence, Not Admissibility

A North Carolina appellate court recently reversed a decision by the state's Industrial Commission that had refused to allow into evidence videotape evidence offered by the employer that purportedly would have cast doubt on whether an employee sustained and slip and fall injury.  The employee pointed to a three-second lapse in the video and contended that based upon that lapse, the video could not be properly authenticated.  The appellate court, noting that there were some 7 hours of video to be reviewed, with no problems in its quality except for the three-second lapse, found that although the employee's arguments might well justify a decision to find the employee's testimony credible despite the inferences that the employer sought to have the Commission draw from the surveillance videos, they did not suffice to justify a refusal on the part of the Commission to consider the videos at all.

See Bowman v. Cox Toyota Scion, 2012 N.C. App. LEXIS 1362 (Dec. 4, 2012).

See generally Larson's Workers' Compensation Law, § 127.10.

OH: Going and Coming Rule Does Not Apply to Employee Who Had No "Fixed Situs"

An Ohio appellate court, citing Larson's Workers' Compensation Law, recently reversed a trial court's decision that entered summary judgment, on the basis of the "going and coming" rule, in favor of the employer.  The court noted that the evidence indicated that the employee, a sales consultant whose primary work was to meet with homeowners, make presentations as to their potential need for waterproofing services by the employer, and execute contracts to be fulfilled by the employer, had no fixed situs, nor regular hours.  He received his daily schedule of appointments by telephone and was not required to stop by the employer's office on a regular basis.  Injuries sustained as he traveled home after an appointment occurred in the course and scope of his employment; the claim was not barred by the going and coming rule.

See Cossin v. Ohio State Home Servs., Inc., 2012 Ohio 5664, 2012 Ohio App. LEXIS 4952 (Dec. 4, 2012).

See generally Larson's Workers' Compensation Law, § 13.01.

PA: Truck Driver's PTSD Claim Upheld Since It Was Related to Vehicle Accident That Constituted "Triggering Physical Event"

A Pennsylvania truck driver, who sustained minor physical injuries in a bizarre vehicular accident that appeared to have been purposely caused by another driver-who might have been suicidal-successfully established a "physical/mental" claim, held a Pennsylvania appellate court recently.  Accordingly, the truck driver was not required to show "abnormal working conditions," as would have been required for a "mental/mental" claim, indicated the court.  The truck driver testified that the other driver appeared to veer purposefully into the path of his truck in spite of the truck driver's efforts to avoid him, that at the point of impact, the driver of the oncoming vehicle was pressing himself toward the windshield of his car and looking at truck driver, and that following the impact, the truck and its trailer went down an embankment, damaging the tractor and destroying the trailer.  The court agreed that the accident was a sufficient triggering physical event to establish the claim.

See New Enterprise Stone & Lime Co., Inc. v. Workers' Comp. Appeal Bd., 2012 Pa. Commw. LEXIS 328 (Dec. 6, 2012).

See generally Larson's Workers' Compensation Law, § 56.03.

OH: No Loss of Use of Foot Where Injured Employee Retained Ability to Walk on Foot With Assistance of Brace

An Ohio appellate court recently affirmed a magistrate's finding that the state's Industrial Commission had applied the correct standard for determining the alleged loss of use of the employee's left foot.  Because she retained the ability to walk using her left foot, albeit with the assistance of a brace, she had not lost the use of her left foot for the primary function of walking, indicated the court.  According to the court, the proper inquiry was whether, taking into account both medical findings and real functional capacity, the body part for which the scheduled loss award was sought was, for all practical purposes, unusable to the same extent as if it had been amputated or otherwise physically removed. The employee failed to meet that standard.

See State ex rel. Richardson v. Industrial Comm'n, 2012 Ohio 5660, 2012 Ohio App. LEXIS 4908 (Dec. 4, 2012).

See generally Larson's Workers' Compensation Law, § 86.04.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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