Plaintiff injured his shoulder while lifting heavy trashcans. During the trial, defendant offered into evidence several surveillance videotapes of plaintiff doing various physical activities. The videotapes...

II. Workers' Compensation

1. Video Surveillance Tapes: Must the Employer Disclose These Tapes as "Statements" Under the Workers' Compensation Statute?

Fisher v. Waste Mgmt. of Missouri, (Mo. banc 2001)

1. Facts: Plaintiff injured his shoulder while lifting heavy trashcans. During the trial, defendant offered into evidence several surveillance videotapes of plaintiff doing various physical activities. The videotapes did not contain an audio component. The videotapes were not turned over to plaintiff when he requested copies of all "statements" during discovery. The ALJ ruled that the tapes were inadmissible and determined that plaintiff had sustained a 30% permanent partial disability. On review, the Labor and Industrial Relations Commission held that the videotapes were not statements and did not have to be disclosed. As a result, the commission reduced the award from 30 to 10%.

2. Pre-Existing Law: In Erbschloe v. General Motors Corp., 823 S.W.2d 117 (Mo. App. 1992), the term "statement" as used in section 287.215 of the Workers' Compensation Statute was found not to include videotapes with no audio component. Section 287.215 states: No statement in writing made or given by an injured employee, whether taken and transcribed by a stenographer, signed or unsigned by the injured employee, or any statement which is mechanically or electronically recorded, or taken in writing by another person, or otherwise preserved, shall be admissible in evidence ... unless a copy thereof is given or furnished the employee ... or their attorney, within fifteen days after written request...

3. Changes after Fisher: Surveillance videotapes are statements and must be turned over pursuant to Section 287.215 of the Workers' Compensation statute, overruling Erbschloe. The Court, looking to the dictionary for help, defined "statement" as:

1. act of stating, reciting, or presenting, orally or on paper; as, the statement of the case;

2. that which is stated; an embodiment in words of facts or opinions; a narrative, recital, report, or account.

In this case, the videotape of plaintiff doing physical activity amounted to a report on his physical condition. The fact that this statement was unknowingly and involuntarily made was irrelevant. The purpose of this ruling is to avoid surprise at trial and to facilitate settlements.