Last-minute surveillance prejudices claimant and is incurable.

Last-minute motions to admit surveillance or continue final hearing denied as claimant was prejudiced by the surprise, the prejudice was incurable and another continuance would have prevented efficiency.

2K South Beach Hotel, LLC and Continental Indemnity Co. v. Marlene Mustelier, DCA#: 19-0713, Decision date: Jan. 15, 2020

Three weeks before the final hearing, an authorized treating physician testified via deposition that the claimant utilized a cane (not prescribed) at her last office visit. The employer obtained surveillance of the claimant in the week before the final hearing, which showed that the claimant did not use a cane and she was seen using her right arm and hand in an unrestricted manner. The employer deposed the claimant the day before the final hearing, where she testified she had never used a cane.

On the morning of the final hearing, the employer moved to either admit the surveillance or to continue the hearing, to amend the pretrial stipulation to add a misrepresentation defense, and to “clarify” their witness and exhibit lists to include the surveillance evidence. The employer also e-filed the surveillance report and then gave the report to the claimant the morning of the final hearing. At the final hearing, the employer proffered the surveillance evidence and elicited testimony from the claimant that a friend had applied nail polish to her right hand, even though she claimed she has pain when her right hand is touched.

The judge denied the employer’s motions, finding prejudice to the claimant and no good cause for the employer’s delay, and awarded the claimant the requested benefits. After granting the employer’s motion for rehearing, in part, the judge amended the order, adding a discussion of “bad faith” to the analysis of good cause and clarifying that he found the late addition of a misrepresentation defense violated the claimant’s due process rights.

On appeal, the First District Court of Appeal held that the claimant was prejudiced by the surprise, the prejudice was incurable and another continuance would have prevented efficiency. The court also held that the judge did not abuse his discretion in denying the employer’s motion to amend the pretrial stipulation, as the motion was not a mere “clarification” of the witness list and the lateness of the motion to add a misrepresentation defense was not excusable. The court went on to hold that there was no error on the judge’s part in denying testimonies from surveillance witnesses.

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