Injured Employee Loses Evidence Spoliation Bid Over Video Erased by Employer

A Virginia public school employee must proceed with his workers’ compensation claim appeal without the evidence of a video he believes shows how and when he was injured at work.

His employer, the Newport News Public Schools, erased the video before the employee asked for it, prompting him to accuse the schools of spoliation of evidence.

A Virginia Workers’ Compensation Commission (VWCC) deputy commissioner rejected the spoliation claim last September and last week the full VWCC let that evidence ruling stand.

The public school employee filed his workers’ compensation claim on June 24, 2024, alleging that he sustained a compensable injury by accident on April 9, 2024.

His employer denied the claim. When his appeal of that denial was before the deputy commissioner, the claimant asked for the record to be kept open to deal with the issue of evidence from a workplace video he said would support his case.

According to the employee, his employer received notice of the April 9, 2024 accident shortly after it took place, had notice that he was seeking benefits when he filed his June 24, 2024 claim, and had notice that he was seeking a copy of the video at least as of November 21, 2024. “At some point during that short window of time, the employer either destroyed or lost the video. The employer should not be allowed to benefit from its failure to preserve the video,” the claimant asserted.

He claimed that the missing video amounted to spoliation of evidence. He maintained that Newport News Public Schools knew about his injury and that it was captured on video and should have reasonably anticipated that he would pursue a claim and it “would be a minimal burden to preserve a short video clip.”

Newport News Public Schools denied there was any spoliation of evidence. The school system said that the video from the day of the incident had been erased after 30 days in accordance with its normal procedures. That was about six weeks before the claimant filed his appeal with the commission. The school district argued that it was not aware of litigation involving the video when the video was destroyed and vowed that it did not intentionally or in bad faith destroy the video to deprive the claimant of evidence.

The VWCC deputy commissioner dismissed the employee’s spoliation claim, finding that the employer did not know the video might have evidence before routinely erasing it after 30 days, which was in keeping with the company’s normal policy.

The deputy commissioner pointed out that cases have “uniformly held” that for a finding of spoliation to occur, the party in possession of the evidence “must either be aware or should reasonably be aware” of the relevance of evidence in its possession or under its control to either probable or pending litigation.

The claimant appealed that ruling on the evidence. The full VWCC last week refused to review the deputy’s decision on the grounds that, while the commission has the discretion to grant an appeal on the evidence issue, a right of review of this nature is typically only available after a final decision or award.

The VWCC noted that it is typical for it to decline interlocutory reviews on evidentiary or procedural matters, except for good cause shown. On this matter, it found that the claimant had not established good cause for such a review.

The VWCC also did not agree that the claimant would suffer substantial prejudice if an interlocutory review were declined. The panel noted that the worker was not harmed because he also had two eyewitnesses willing to testify as to what occurred.

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Workers’ Compensation
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