Commissioner Issues Declaratory Order on Surveillance
In April of 2012, the Workers' Compensation Core Group of the Iowa Association for Justice had requested a declaratory order from the Iowa Workers' Compensation Commissioner on the issue of the disclosure of surveillance materials. The gist of the Core Group's request was that section 85.27 of the Iowa Code indicates that employers and claimants in workers' compensation actions agree, as a predicate for making or defending a claim for benefits, "to the release of all information to which the employee, employer, or carrier has access concerning the employee's physical or mental condition relative tot he claim and further waives any privilege for the release of the information." The Core Group argued that previous agency policy, which had prohibited the disclosure of surveillance material until after the claimant's deposition, was rooted in the Iowa Rules of Civil Procedure rather than the workers' compensation statute, and that the broad waiver of privilege in the statute required the disclosure of surveillance materials within ten days of receipt, as would be the case for medical records.
Given the importance of the issue, the Commissioner solicited comments from interested parties. The Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa Self Insurer's Association and Property Casualty Insurance Association of America all filed petitions in intervention, which were granted by the commissioner. On June 26, 2012, the parties to the proceeding appeared and presented testimony and oral argument to the Commissioner. A spirited discussion was had at the meeting discussing the role of surveillance, the interplay between rules of privilege and the workers' compensation statute, and the practicalities of releasing surveillance materials prior to a claimant's deposition. The Intervenors challenged the Core Group's standing to bring the declaratory action.
As an initial matter, the Commissioner concluded that the Core Group had standing to request the declaratory order as it related to disclosure of surveillance materials. In addressing the issues presented, the Commissioner first addressed the statute and its interpretation in Morrison v. Century Engineering, 434 N.W.2d 874 (Iowa 1989). The Commissioner noted that Morrison had concluded that the "waiver provision in section 85.27 [was] much broader than the one in section 622.10." In Morrison, the court had noted that workers' compensation proceedings fostered the ready access to information to facilitate the process of resolving claims. The Commissioner also noted, however, that Commission precedent had restricted the timing of disclosure until after the deposition of the claimant. The Commissioner noted that the two major decisions addressing the issue, Hoover v. Iowa Dept. of Agriculture, No. 529205 (App. April 30, 1991) and Ramirez v. Riverview Care Center, Nos. 1243830, 1253740, 1253741, 1253742, 1253743 (App. Aug. 14, 2002) had not addressed section 85.27 as it related to waiver of privilege.
The Commissioner noted that although Core Group had argued that surveillance was evidence of a claimant's physical condition under the statute, the Intervenors had stated that surveillance was primarily a means of testing claimant's credibility. The Commissioner concluded that even if this was the case, "the veracity relates to the claimant's physical or mental condition." The Commissioner rejected the argument that surveillance lost its impeachment value if it was presented prior to deposition, noting that although the "surprise" element would be lost, the impeachment value would still remain because the surveillance would arguably give the lie to claimant's description of his or her condition.
The Commissioner noted that attorney client privilege was not to be waived by production of surveillance, and that under Squealer Feeds v. Pickering, 530 N.W.2d 678, 688 (Iowa 1995), the mental impressions, conclusions, opinions or legal theories of an attorney were not discoverable. The Commissioner concluded that the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party were not waived by section 85.27(2).
A summary of the answers to the questions posed in the Petition for Declaratory Order is as follows:
1. Iowa Code section 85.27 is applicable to surveillance.
2. All privileges as to attorney-client work product pertaining to surveillance videos showing the worker or concerning the worker are waived by 85.27, but privileges as to mental impressions, conclusions, opinions or legal theories of an attorney or other representative are not waived.
3. Defendants are required to produce surveillance materials pursuant to appropriate discovery requests
4. Surveillance materials may not be withheld until after the deposition of the claimant.
5. Surveillance materials are to be produced upon request. If the request is made under rule 85.27 rather than formal discovery, the materials are to be produced within the time periods in 876 IAC 4.17 (20 days after filing an answer, thereafter within 10 days of receipt.
6. Parties seeking to prevent discovery of surveillance material may seek an order from the Commissioner disputing the relevance and materiality of the information requested.
7. Defendants are required to timely answer and supplement discovery, and so if surveillance is performed, defendants must disclose that surveillance under the rules of discovery and 876 IAC 4.17.
8. An injured worker can move to compel production of surveillance materials, and the Commissioner can impose sanctions if a party fails to comply with an order.
It is anticipated that Intervenors will file a Petition for Judicial Review of the action of the Commissioner. Inasmuch as the decision was issued on October 23, 2012, such a petition would need to be filed by November 22, 2012.
The Declaratory Order on surveillance clarifies what had been a murky area regarding the discovery and production of surveillance materials. The Order also clarifies that section 85.27, in its waiver of privileges, has broad application not only to medical records, but to all records that concern the physical or mental condition of the claimant. The result of the Order may well be that surveillance in workers' compensation cases is reduced. The Iowa Supreme Court in Cedar Rapids Comm. Sch. Dist. v. Pease, 807 N.W.2d 839, 848 (Iowa 2011) had already suggested that surveillance materials must be used "with great caution," and the Order makes it less likely that surveillance will be widely used in workers' compensation proceedings.
NOTE: Following the issuance of the declaratory order, a petition for judicial review was filed in district court challenging the commissioner's action. The district court affirmed the order, and an appeal was filed and heard by the Iowa Court of Appeals. In Iowa Insurance Institute, et al. v. Core Group of the Iowa Association for Justice, No. 13-1627 (Iowa App. Oct. 29, 2014), the Court of Appeals, in a 2-1 decision, affirmed the commissioner's action. A more complete discussion is contained in the posting about the decision in this blog in November of 2014.
Given the importance of the issue, the Commissioner solicited comments from interested parties. The Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa Self Insurer's Association and Property Casualty Insurance Association of America all filed petitions in intervention, which were granted by the commissioner. On June 26, 2012, the parties to the proceeding appeared and presented testimony and oral argument to the Commissioner. A spirited discussion was had at the meeting discussing the role of surveillance, the interplay between rules of privilege and the workers' compensation statute, and the practicalities of releasing surveillance materials prior to a claimant's deposition. The Intervenors challenged the Core Group's standing to bring the declaratory action.
As an initial matter, the Commissioner concluded that the Core Group had standing to request the declaratory order as it related to disclosure of surveillance materials. In addressing the issues presented, the Commissioner first addressed the statute and its interpretation in Morrison v. Century Engineering, 434 N.W.2d 874 (Iowa 1989). The Commissioner noted that Morrison had concluded that the "waiver provision in section 85.27 [was] much broader than the one in section 622.10." In Morrison, the court had noted that workers' compensation proceedings fostered the ready access to information to facilitate the process of resolving claims. The Commissioner also noted, however, that Commission precedent had restricted the timing of disclosure until after the deposition of the claimant. The Commissioner noted that the two major decisions addressing the issue, Hoover v. Iowa Dept. of Agriculture, No. 529205 (App. April 30, 1991) and Ramirez v. Riverview Care Center, Nos. 1243830, 1253740, 1253741, 1253742, 1253743 (App. Aug. 14, 2002) had not addressed section 85.27 as it related to waiver of privilege.
The Commissioner noted that although Core Group had argued that surveillance was evidence of a claimant's physical condition under the statute, the Intervenors had stated that surveillance was primarily a means of testing claimant's credibility. The Commissioner concluded that even if this was the case, "the veracity relates to the claimant's physical or mental condition." The Commissioner rejected the argument that surveillance lost its impeachment value if it was presented prior to deposition, noting that although the "surprise" element would be lost, the impeachment value would still remain because the surveillance would arguably give the lie to claimant's description of his or her condition.
The Commissioner noted that attorney client privilege was not to be waived by production of surveillance, and that under Squealer Feeds v. Pickering, 530 N.W.2d 678, 688 (Iowa 1995), the mental impressions, conclusions, opinions or legal theories of an attorney were not discoverable. The Commissioner concluded that the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party were not waived by section 85.27(2).
A summary of the answers to the questions posed in the Petition for Declaratory Order is as follows:
1. Iowa Code section 85.27 is applicable to surveillance.
2. All privileges as to attorney-client work product pertaining to surveillance videos showing the worker or concerning the worker are waived by 85.27, but privileges as to mental impressions, conclusions, opinions or legal theories of an attorney or other representative are not waived.
3. Defendants are required to produce surveillance materials pursuant to appropriate discovery requests
4. Surveillance materials may not be withheld until after the deposition of the claimant.
5. Surveillance materials are to be produced upon request. If the request is made under rule 85.27 rather than formal discovery, the materials are to be produced within the time periods in 876 IAC 4.17 (20 days after filing an answer, thereafter within 10 days of receipt.
6. Parties seeking to prevent discovery of surveillance material may seek an order from the Commissioner disputing the relevance and materiality of the information requested.
7. Defendants are required to timely answer and supplement discovery, and so if surveillance is performed, defendants must disclose that surveillance under the rules of discovery and 876 IAC 4.17.
8. An injured worker can move to compel production of surveillance materials, and the Commissioner can impose sanctions if a party fails to comply with an order.
It is anticipated that Intervenors will file a Petition for Judicial Review of the action of the Commissioner. Inasmuch as the decision was issued on October 23, 2012, such a petition would need to be filed by November 22, 2012.
The Declaratory Order on surveillance clarifies what had been a murky area regarding the discovery and production of surveillance materials. The Order also clarifies that section 85.27, in its waiver of privileges, has broad application not only to medical records, but to all records that concern the physical or mental condition of the claimant. The result of the Order may well be that surveillance in workers' compensation cases is reduced. The Iowa Supreme Court in Cedar Rapids Comm. Sch. Dist. v. Pease, 807 N.W.2d 839, 848 (Iowa 2011) had already suggested that surveillance materials must be used "with great caution," and the Order makes it less likely that surveillance will be widely used in workers' compensation proceedings.
NOTE: Following the issuance of the declaratory order, a petition for judicial review was filed in district court challenging the commissioner's action. The district court affirmed the order, and an appeal was filed and heard by the Iowa Court of Appeals. In Iowa Insurance Institute, et al. v. Core Group of the Iowa Association for Justice, No. 13-1627 (Iowa App. Oct. 29, 2014), the Court of Appeals, in a 2-1 decision, affirmed the commissioner's action. A more complete discussion is contained in the posting about the decision in this blog in November of 2014.
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