How Videotape Captured REAL Capabilities of Injured Worker

Videotape Evidence Undermines Tennessee EMT’s Claim for Permanent Disability

Here’s What Happened:

Lesko, an EMT/paramedic, injured her lower back while assisting in moving a patient on a stretcher from a wooded area. She was seen and treated by a host of medical professionals who generally prescribed conservative treatment, pain medication and physical therapy. One of the doctors Lesko saw was a physiatrist. Lesko generally complained of pain, showed a very slow and “bizarre” gait, and indicated she had experienced other difficulties. Tests revealed some normal degenerative changes in her back, but nothing conclusive.

Several physicians indicated that “symptom magnification” appeared to be present. Prior to her last visit to the physiatrist, the latter viewed part of a private investigator’s videotape recording that showed Lesko enter and exit her physical therapy facility with a slow, labored gait, but later showed Lesko shopping, walking normally, and unloading two bulky items from her car, all without apparent pain or difficulty. The doctor opined that Lesko’s movements captured on the videotape were inconsistent with the symptoms she exhibited at the doctor’s office. Lesko contended she suffered permanent disability as a result of the work-related injury. The trial court ruled that she had no such disability and Lesko appealed.

Here’s What The Court Decided:

In Lesko v. Tennessee Sch. Bd., 2010 Tenn. Dist. LEXIS 29 (Jan. 22, 2010), the Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, held there had been no error. The court reasoned that while the trial court made no findings as to Lesko’s credibility, its discussion of the many conflicts between Lesko’s testimony and other evidence in the case amounted to a de facto finding that Lesko’s credibility had been diminished. The court observed that the only physician who testified that Lesko had any level of permanent injury had based that testimony on Lesko’s subjective complaints. (workersxzcompxzkit)

The court noted that video and photographic evidence produced by the employer cast doubt upon Lesko’s credibility in general, and the accuracy of those statements in particular. Because Lesko’s statements were the factual basis for her expert’s opinion, the accuracy of that opinion was also questionable. The court indicated that under the circumstances, it was unable to conclude that the evidence preponderated against the trial court’s decision to give greater weight to the testimony of the physiatrist, or its finding that Lesko had not sustained a permanent disability.

See generally Larson’s Workers’ Compensation Law, § 127.10.

Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: [email protected].

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.