Sex, Lies & Videotape: Injured Worker's Pornographic Videos Posted On The Internet Show Violations Of His Medical Restrictions

By Robin E. Kobayashi 

Note: This is the first in a series on the use of the Internet and social media as evidence in workers' compensation cases.

Mark Zuckerberg, CEO of Facebook, has said “You have one identity. The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly… Having two identities for yourself is an example of a lack of integrity.” [See The Facebook Effect, by David Kilpatrick]

Regardless of whether you agree or disagree with those who find Zuckerberg's statements "fraught with problems, ignorance, and arrogance" [see MichaelZimmer.org], this concept of having dual personalities was never more apparent than in a 2010 decision by the North Carolina Industrial Commission in which an injured worker was a healthcare technician by day and a pornographer by night.

More importantly, the case sheds some light on how the Internet has impacted questions of evidence and discovery in workers' compensation law. 

At a hearing before a Deputy Commissioner, the defendant, a self-insured employer, sought to admit into evidence graphic visual depictions of plaintiff performing sexual acts to show that plaintiff was violating his medical restrictions in various ways and that the material was created while he was out of work receiving workers' compensation disability benefits. Plaintiff objected, challenging the material's relevancy and asserting that the probative value of these items was outweighed by their prejudicial effect.

The Deputy Commissioner overruled plaintiff's relevancy objection pursuant to North Carolina Rule of Evidence 401, finding that there were some dates associated with the videos that had been posted on the Internet and such dates were subsequent to plaintiff's date of injury; therefore, the videos were created during a time period relevant to this claim.

The Deputy Commissioner further determined that the prejudicial effect of the contested evidence was significantly outweighed by its probative value and easily complied with the standard for admission under North Carolina Rule of Evidence 403 in three specific instances: (1) the videos could illuminate employment-related issues surrounding plaintiff's termination by defendant; (2) the videos could reflect on plaintiff's credibility regarding his representations about his ability to work and/or physical restrictions; and (3) the acts depicted in the videos could illustrate plaintiff's level of disability.

The Full Commission concurred with the Deputy Commissioner's evidentiary rulings.

Some of the key Findings of Facts by the Full Commission were:

> Plaintiff was employed as a health care technician at a residential healthcare facility. He reported a back injury on 2/27/2007 due to a physical struggle with a patient. Defendant accepted the claim and paid benefits beginning 3/5/2007.

> In January 2008 defendant received reports of employee complaints surrounding Internet videos depicting plaintiff performing sexual acts while he was out of work receiving workers' compensation benefits. Defendant initiated an investigation.

> The investigator found a website containing graphic pornographic videos and images depicting plaintiff and a co-worker, and downloaded 107 videos, 36 of which were posted by plaintiff and 71 of which were posted by the co-worker.

> Plaintiff and the co-worker in question both freely admitted that they were the individuals depicted in the aforementioned videos.

> Defendant terminated both plaintiff and the co-worker in question effective 1/28/2008 for personal misconduct.

> Plaintiff and the co-worker in question testified that the videos were created in 2005 and 2006, prior to plaintiff's work injury, and were posted in 2007 and 2008. However, the Full Commission found otherwise.

> As stated by the Full Commission, the website content in question was created in “close temporal proximity to their posting dates.” For example, one video posted on 12/29/2007 was entitled “End Of Year Bash! The … Party Has Started!!!!!!!!!!!!!” and the message posted in the video said this was the “final video of the year leading into 08!” among other things. Another video posted on the website 1/12/2008 by plaintiff says “THE FIRST VIDEO OF 2008! SIT BACK AND ENJOY ANOTHER MASTERPIECE.”

> Plaintiff testified that he used his cell phone to record and store the videos, and then posted them two or three years later in no specific order on the website, and that the dates reflected in the video titles and comments bore no relation to the videos' dates of creation.

> The Full Commission found the testimony of plaintiff and the co-worker was not credible.

> A physician who performed L2-3 translumbar interbody fusion surgery on plaintiff 8/1/2007, noted on 11/27/2007 that during plaintiff's functional capacity evaluation on 11/15/2007, plaintiff had lifting capabilities, but that there was “some limited effort” with floor to waist lifting and pushing and pulling. The physician recommended that plaintiff begin a work hardening program. The physician testified that plaintiff's strength was “normal from the standpoint of measuring his strength, and the lifting restriction is based on his report of pain and discomfort.”

> The physician reviewed multiple videos during the course of his deposition. In one such video posted 12/17/2007 plaintiff holds the co-worker “up in front of him facing him as he stands during sexual intercourse, experiencing no apparent pain.” The physician testified that the co-worker weighed more than 30 pounds, that the activity shown on the video should have caused pain given plaintiff's previous representations, and that he would not recommend that plaintiff take part in this type of activity. The physician also reviewed portions of videos posted 1/12/2008 and 1/15/2008, where plaintiff performed physical movements with no apparent pain, and testified that plaintiff should have experienced a lot of pain based on what he had told the medical providers about what he could and could not do.

> The physician further testified that “…if [plaintiff] was in significant amount of pain as a result of these activities that there would be…some question as to whether or not he could maintain an erection and that sort of stuff for that period of time if he was in severe back pain as a result of that.”

The Full Commission concluded that plaintiff was not credible regarding his complaints of pain and ability to work and that the greater weight of the evidence showed plaintiff had been able to engage in activities outside the restrictions set forth in the 11/15/2007 functional capacity evaluation.

The Full Commission found plaintiff was not entitled to temporary total disability benefits subsequent to 11/15/2007, and awarded defendant a credit for temporary total disability benefits paid to plaintiff subsequent to 11/15/2007.

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