Shawn Pollard sustained admitted injury on October 20, 2016 while employed as an Equipment Operator by Lemstra Cattle Company. This applicant selected Michael Azevedo, M.D., as his PTP. The parties have further selected M. Nathan Oehlschlaeger, D.C., as the QME in chiropractic medicine.
The Defendant obtained surveillance video of applicant on multiple occasions between December 1, 2022 and February 22, 2023. On March 6, 2023, the parties completed the deposition of the QME.
Following the QME deposition, On April 14, 2023, defendant sent a letter to applicant’s counsel attaching surveillance videos and proposing their submission to the QME, barring objection received in twenty days. On April 18, 2023, applicant’s counsel timely objected to the submission of surveillance video to the QME.
On May 23, 2023, PTP Michael Azevedo, M.D., issued a PR-2 interim report in response to a request that he review sub rosa video of applicant. The PTP’s report discussed the films and the physician’s opinions regarding applicant’s work restrictions.
On September 27, 2023, the parties proceeded to trial and framed for decision the issue of whether defendant was precluded from sending surveillance video to the QME. The parties also framed the issue of the admissibility of the May 23, 2023 report of the PTP. The WCJ heard testimony from the claims examiner and ordered the matter submitted for decision.
On December 7, 2023, the WCJ issued the F&O, determining in relevant part that “Defendant is precluded from sending the surveillance videos in question to the QME, Dr. Oehlschlaeger.” The WCJ further ordered the May 23, 2023, report of PTP Dr. Azevedo excluded from evidence.
The Defendants’ Petition for Removal filed with the WCAB over this Order was granted in the panel decision of Pollard v Lemstra Cattle Company – ADJ10675931 (June 2025).
Defendant’s Petition for Removal acknowledges that it obtained multiple dates of surveillance videos and that “[t]he video obtained in 2017 and 2021 was not previously disclosed to any party, partly because the deposition of the applicant had been scheduled, re-scheduled, continued several times, but never actually took place.”
Defendant contends the WCJ’s order disallowing submission of the surveillance videos to the QME is prejudicial because defendant has complied with the applicable statutes regarding submission of information to the QME. Defendant acknowledges that “[t]here is no real dispute here that the surveillance videos in question would have constituted information and had to be sent to the applicant’s attorney 20 days prior to being sent to Dr. Oehlschlaeger … [w]hen applicant’s attorney timely objected, the only way the videos could be sent to the PQME would be by order of the court.” Defendant thus contends it has complied with the provisions of Labor Code section 4062.3 and Administrative Direct (AD) Rule 35 (Cal. Code Regs., tit. 8, § 35) and should be allowed to send the subject videos to Dr. Oehlschlaeger for his review.
Generally, when a party makes a demand pursuant to Hardesty v. Mccord & Holdren (1976) 41 Cal.Comp.Cases 111, 114 [1976 Cal. Wrk. Comp. LEXIS 2406] for service of existing evidence, including sub rosa video, the employer is obligated to promptly serve the requested materials. A failure of timely service of sub rosa video or other demanded evidence may result in the imposition of various monetary or evidentiary sanctions, including the exclusion of evidence from the record. (Lab. Code, §§ 5502(d)(3).
The WCAB noted that “Here, however, it does not appear that applicant’s deposition has been accomplished, nor has the defendant sought to introduce the sub rosa video into evidence at mandatory settlement conference on the case in chief. Rather, defendant has provided applicant with a copy of the sub rosa video and proposed to submit the video to the QME for review unless applicant objected within twenty days pursuant to section 4062.3(b).”
The WCAB panel concluded by saying “On this record, we discern no violation of our Rules or other statutory prohibition that would preclude the QME’s review of sub rosa video. Accordingly, we will grant defendant’s petition, rescind the F&O, and substitute a new finding of fact that defendant may submit the surveillance video dated December 1, 2022, December 9, 2022, December 14, 2022, February 16, 2023, February 21, 2023, and February 22, 2023, to QME Dr. Oehlschlaeger.”
And “having concluded that defendant followed the procedure for submission of sub rosa video to the QME under section 4062.3(b), and that the sub rosa video may be submitted to6 the QME as a result, we discern no basis upon which to exclude the PTP’s reporting following review of the same evidence.”