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Surveillance Videos OK in Workers’ Comp Cases

DES MOINES, IA - Employers defending against workers' compensation claims have a duty to release surveillance videos, the Iowa Court of Appeals ruled Wednesday.

The decision supports the finding by the Iowa Workers' Compensation commissioner as to a provision of state law that requires litigants in a workers' compensation proceeding to release of "all information ... concerning the employee's physical or mental condition."

Lawyers who advance workers' compensation claims for the Core Group of Iowa Association for Justice had wanted the commissioner to clarify whether that law covered any surveillance footage a company might take of a member of its staff who claims to have been injured on the job.

Though Iowa Insurance Institute and other entities that handle most workers' compensation intervened in opposition of that interpretation, the commissioner sided with the Core Group.

A court in Polk County affirmed that interpretation against the insurers' claims that the Iowa law applies only to third-party information, including medical records, bills and expert testimony.

The Iowa Court of Appeals was somewhat divided in affirming for the Core Group on Wednsay.

No interpretation of the law "is required to conclude surveillance materials fall within the phrase of 'all information' to which the employer has 'access,'" according to the lead opinion by Judge Anuradha Vaitheswaran.

Though the insurers argued that work-product privilege protects the tapes since employers prepare such footage in anticipation of litigation, the court disagreed. "Surveillance, by itself ... discloses the claimant's condition - nothing more, nothing less," Vaitheswaran wrote.

Although "respondents may use the surveillance footage to denigrate claims of disability ... the footage alone does not reveal the mental impressions of an attorney," the ruling continues.

While Judge Richard Doyle concurred in full, Judge Christopher McDonald dissented on the merits.

McDonald blasted the commissioner for compounding his erroneous finding that the Iowa law applies to surveillance materials "by conflating two separate legal doctrines into something the commissioner denominated the "attorney-client work product privileged [sic]."

Extending the commissioner's reading would require any party to a workers' compensation proceeding to "waive the attorney-client privilege, the spousal privilege, and any other privilege heretofore or yet-to-be recognized," McDonald added.

"This consequence alone seems enough reason to limit the meaning of 'all information' and 'the information' to medical records and similar or related documents," he wrote.

Citing various aspects of the commissioner's declaratory order, McDonald said the commissioner seems to have "conjoined the attorney-client privilege and work product doctrine."

"We are only left to guess what the agency's order means, which militates in favor of reversal," he added.

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