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NC Risk Handling Hint -Necessity of Objection Before Deputy Commissioner; Admissibility of Surveillance Video
Clifton Bowman was a repair technician for Cox Toyota Scion. He alleged that he tripped over an air hose at work causing injury to his neck and low back. After the fall, Bowman reported the accident to his supervisor and showed several employees his alleged back injury before leaving work early. Cox Toyota Scion had installed an extensive security system in the building, including surveillance equipment that recorded footage in the area where Bowman allegedly fell. An executive with Cox Toyota Scion reviewed the surveillance footage after learning of Bowman’s alleged fall. This footage was also recorded onto several DVDs. Because they could find no evidence of a fall on the surveillance footage, Defendants denied Bowman’s claim.
At hearing, Plaintiff’s evidence consisted of his own testimony, medical evidence and testimony of two witnesses who testified that Bowman’s back was red and swollen after the fall. The Deputy Commissioner denied Bowman’s claim, concluding that he was not credible because the video surveillance did not corroborate his testimony. On appeal, the Full Commission reversed the Deputy Commissioner and found that he erred in admitting the surveillance since Defendants did not lay a proper foundation or authenticate the surveillance video.
On December 4, 2012, inBowman v. Cox Toyota Scion, the Court of Appeals first considered whether the Full Commission erred in concluding that Defendants’ surveillance video should not have been admitted into evidence when the reversal was based on an objection that Bowman did not raise before the Deputy Commissioner. Rejecting Defendants’ argument that the North Carolina Rule of Appellate Procedure which precludes a party who fails to obtain a ruling on an issue before the trial court from raising the issue on appeal applied, the Court noted that the Full Commission is not an appellate court and that this argument had already been rejected inJoyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610 (1988). The appealing party’s Form 44 determines the issues properly before the Full Commission, and the fact that a particular issue was not objected to or raised before a Deputy Commissioner does not, in and of itself, prevent the Full Commission from deciding the issue.
The Court also addressed whether the Full Commission erred in concluding that Defendants had not laid a proper foundation or authenticated the surveillance video when Defendants had offered evidence that the surveillance cameras were working properly and that the video footage was unedited. The Court held that the Commission erred in excluding the video, noting that the Rules of Procedure and Evidence used by the Commission are required to be simpler than the Rules used in State Court. Video recordings are generally admissible when a proper foundation is laid and when the recording is authenticated, which is usually accomplished when there is evidence that the camera and taping system were properly maintained and operating when the video was made, the videotape accurately presents the events depicted, and there is an unbroken chain of custody.
In this case, the Court found that a supervisor from Cox Toyota Scion testified that a state-of-the-art security system was installed, that Cox Toyota Scion experienced no problems with its video surveillance, and that the cameras were in operation on the date of the alleged injury. The supervisor also testified that he followed the instructions for retrieving footage from the cameras. Based on this testimony, the Court concluded that Defendants laid a sufficient foundation for the video and that the Full Commission erred in excluding this evidence. The Court remanded the case back to the Full Commission for the entry of an Opinion and Award that considered the video surveillance. Notably, the Court also rejected Bowman’s argument that three seconds of the video surveillance was missing, which Defendants acknowledged might have coincided with the time at which Bowman claimed to have fallen, since that issue goes to the weight of evidence, not to its admissibility.
Risk Handling Hint:Bowman underscores the fact that the issues before the Deputy Commissioner are not necessarily the same as those ultimately considered by the Full Commission. An appeal to the Full Commission can also include newly received evidence in some circumstances. Risk managers are reminded to consider the Full Commission’s scope of review to address every aspect of a worker’s compensation claim.Bowman also establishes guidelines for the admission of surveillance evidence. Risk managers should ensure that the chain of custody for surveillance footage is carefully maintained, that all surveillance equipment functions properly, that the footage is unedited, and that a representative of the employer can testify as to the fairness and accuracy of the events depicted in the recording.