Sub rosa surveillance is one of the most powerful tools in a claims adjuster’s arsenal. It is also one of the most expensive. When you capture footage of an applicant performing activities they claimed they could not do, the instinct is to immediately send it to the Qualified Medical Evaluator (QME) to secure a favorable supplemental report.
While this is a standard and effective strategy, a recent 2025 panel decision, Pedroza v. OC Jones & Sons, Inc., serves as a critical reminder: if you want to use video to prove the applicant is a liar, the Judge has to see it.
Here is what went wrong in Pedroza and how you can ensure your surveillance evidence sticks at trial.
The Case: Pedroza v. OC Jones & Sons, Inc. (2025)
In this recent case, the applicant claimed a specific injury to his right shoulder. The defense obtained sub rosa video showing the applicant working—footage that seemingly contradicted his claims of total inability to work.
The defense followed the standard playbook: they sent the video to the QME, Dr. Centeno. The QME reviewed the footage, noted that the applicant had been dishonest about his work history, and updated his medical reporting. At trial, the Workers’ Compensation Judge (WCJ) relied on the QME’s summary of the video to find the applicant asserted a lack of credibility. Based largely on this medical reporting, the WCJ issued a “Take Nothing” Order.
It looked like a win for the defense. However, the Workers’ Compensation Appeals Board (WCAB) rescinded the decision.
Where the Defense Went Wrong
The WCAB overturned the victory because of a procedural fumble: The video itself was never admitted into evidence.
The Board clarified that there are two distinct ways to use sub rosa video, and each has different evidentiary rules:
- As Medical Evidence: You send the video to the QME to see if it changes their medical opinion on disability or apportionment. In this scenario, the video is “germane only to the medical expert’s opinion.” Generally, the video itself does not need to be admitted at trial because the evidence being relied upon is the doctor’s report.
- As Factual Evidence of Credibility: This is where the defense in Pedroza failed. If you want to argue that the applicant is lying to the court (impeachment) and that their testimony is not credible, the video becomes factual evidence. The WCAB ruled that a Judge cannot rely on a doctor’s summary of a video to make credibility determinations. The “trier of fact” (the Judge) must view the evidence personally.
Because the defense did not move the actual video into evidence, the Judge had no right to rely on it for credibility purposes, and the “Take Nothing” Order was vacated.
The “Sua Sponte” Surprise: Conflicts of Interest
As a secondary warning, the WCAB noted a massive issue that neither party had raised (“sua sponte”). The QME (Dr. Centeno) appeared to be in the same medical practice as the applicant’s primary treating physician (Dr. Nissen).
Under Administrative Director Rule 41.5, a QME who shares a practice with the PTP has a disqualifying conflict of interest. Because there was no waiver of this conflict in the record, the entire medical record is now in jeopardy, further complicating the defense’s position.
Key Takeaways for Claims Adjusters
To avoid having your hard-won surveillance tossed out on a technicality, follow these three rules:
- Define Your Goal: Are you using the video just to reduce the impairment rating (Medical), or do you want to prove the applicant is testifying falsely (Factual/Credibility)?
- Admit the Evidence: If credibility is at issue, instruct your defense counsel to formally offer the sub rosa video into evidence at trial. Do not rely solely on the QME’s description of the footage.
- Check Your Doctors: Always verify that your QME is not financially affiliated with the PTP. This is an easy procedural attack for applicant attorneys that can restart your claim from square one.
About Yrulegui & Roberts
At Yrulegui & Roberts, we believe that a successful defense requires more than just knowing the law—it requires a strategic partnership. Serving California from Sacramento to Bakersfield for over 40 years, our firm is dedicated to exceeding client expectations. We take an aggressive and practical approach to every claim, ensuring that expensive tools like sub rosa surveillance are used effectively to close files, not just generate reports. If you need a defense team that understands the nuance of litigation, visit us at www.rjylaw.com.
Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this post. Workers’ compensation laws are complex and subject to change; please consult with legal counsel regarding the specific facts of your case.
