Montenegro v. Palmieri Food Products, Inc.
The Workers' Compensation Commission guidelines, Chairman's Memorandum 2004-02 "Revised Professional Guide for Attorneys, Physicians and Other Health Care Practitioners; Guidelines for Cooperation," do not require the disclosure of video surveillance prior to a claimant's deposition and medical examinations. In 2006, Dennis Montenegro sustained a near total amputation of his left thumb. His employer, Palmieri Food Products Inc., accepted the injury. Montenegro underwent orthopedic surgery and was found totally disabled from employment. In 2007, the respondents' expert, Dr. Duffield Ashmead examined the claimant who reported severe hypersensitivity to light touch. Ashmead recommended nerve blocks and further surgery. Dr. Mark Scanlan recommended further surgeries. The commissioner's examiner, Dr. Stewart Gross, basically agreed with Scanlan's surgical recommendations and found that the claimant should remain on temporary total disability. The respondents conducted video surveillance and provided videodiscs to the doctors of the claimant's activities in 2008. Scanlan's opinion was not changed. Ashmead and Gross, concluding that the claimant's physical limitations were not as great as they previously believed, found surgical intervention unwarranted and that the claimant had full-time work capacity. Prior to the video's disclosure, the claimant was deposed. He testified to doing nothing with his left hand for fear of it being touched. The trial commissioner found the testimony of Gross and Ashmead credible and persuasive and noted the video appeared inconsistent with the claimant's deposition testimony and presentation to Ashmead and Gross. The commissioner, inter alia, denied the proposed surgeries and approved two forms 36 establishing a date of maximum medical improvement and a work capacity. The claimant appealed raising multiple claims. The Compensation Review Board affirmed the findings and orders. It was not reversible error for the commissioner to admit the video as evidence or for the physicians the commissioner found credible to rely on this evidence. The commission's guidelines did not require disclosure of the video's existence prior to the claimant's deposition and medical examinations. No due process issue arose from the video's presentation. The claimant had sufficient opportunity to review the evidence and depose the experts before the formal hearing's conclusion. The commissioner properly relied on the opinions of the commissioner's examiner and found his opinion persuasive.