In work-related injury claims, because many accidents have no witnesses or the witnesses have different perspectives, it often becomes an “I say, you say” dispute, where a panel or a jury has to determine whose story is more credible. A recent decision by the U.S. Court of Appeals, in the 5th Circuit, shows the importance of surveillance evidence in demonstrating the false representations of a workers’ compensation claimant.

Under the language of the Longshore Act, any claims for compensation or benefits filed under the act are “presumed” to fall under the provisions of the act in the absence of “substantial evidence to the contrary,” a provision known as the Section 20(a) presumption. In the case before the 5th Circuit, Bis Salamis, Inc. v. Director, OWCP, an administrative law judge (ALJ) initially ruled that the claimant’s testimony, along with video surveillance, had overcome the presumption. They found substantial evidence that the claimant’s testimony was unreliable, including a statement that he made that he “had been hurt before but…never got anything for it.” There was also a video that showed the claimant capable of engaging in a variety of activities without pain, contrary to his assertions in the workers’ compensation proceeding. Because the claimant did not have the presumption, he was required to show that his injury was work-related, and failed to meet that burden of proof.

The ALJ’s ruling was reversed by the workers’ compensation Benefits Review Board (BRB), which held that the ALJ had wrongfully shifted the burden of proof to the injured party. The matter was returned to the ALJ, who concluded that the claimant’s testimony was unreliable and not entitled to any weight in the proceeding. The ALJ therefore denied the claim, which was again appealed to the BRB, and was reversed again. This time, the BRB ruled that there was independent objective medical evidence that the ALJ could have used to approve the claim. The parties then stipulated to the average weekly wage and the ALJ approved temporary benefits. Nonetheless, the employer appealed the ruling.

The 5th Circuit ruled that an administrative law judge has the discretion to make credibility determinations in workers’ compensation proceedings, and that the ALJ also has the exclusive power to weigh all evidence, and to accept or reject any testimony, including that of expert witnesses. Accordingly, the ALJ could use evidence gathered from video surveillance to refute expert medical testimony that the claimant had limited range of motion or experienced pain when performing certain tasks.

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