Author: Trevor Cutaiar

 

The claimant, Wendy Ward, suffered a hand injury while working at Iberia Medical Center.  Her personal physician referred her to an orthopedic surgeon and, at the request of Iberia Medical, she was seen by a second orthopedic surgeon.  Iberia Medical conducted surveillance on Ward and subsequently provided a video to both surgeons, asking them to comment on her ability to return to work in light of the activity demonstrated.  Both doctors’ opinions changed upon viewing the surveillance video and Iberia Medical terminated Ward’s benefits.  Both parties filed a Disputed Claim for Compensation with the Office of Workers’ Compensation.  The OWC officer ruled in Ward’s favor and Iberia Medical appealed.

One of the issues on appeal was the propriety of providing surveillance video to the orthopedic surgeons who had evaluated Ward.  The Louisiana Supreme Court found that the lower courts were wrong to hold that the videos had compromised the doctors’ opinions to the extent that they should be ignored.  The lower courts relied on Fabre v. ICF Kaiser International, a 2002 First Circuit Court of Appeal case, which held that it was improper to provide surveillance video to a court-appointed independent medical examiner to see if the video changed the doctor’s opinion. This decision was based on the finding that a defendant should not have contact with an independent medical examiner.

The Supreme Court distinguished Fabre.  In Ward’s case, no video surveillance was provided to an independent medical examiner.  Rather, the video was provided to Ward’s treating physician and a physician that Iberia Medical retained to give a second opinion.  The Court explained that parties in workers’ compensation cases should not have contact with court-appointed independent medical examiners to prevent bias.  However, there is nothing that prohibits an employer from showing surveillance evidence to the claimant’s treating physician or the physician that provided it a second opinion.

Iberia Medical Center v. Ward, 2010 WL 4867972 (La. 2010).