JAMES SMITH, Applicant

FALK CORPORATION, Employer

FALK CORPORATION, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed April 17, 2003
smithja . wsd : 185 : 8  ND § 8.28

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

The commission viewed the videotape evidence and concurred with the administrative law judge's conclusion that the tapes demonstrated the applicant had greatly exaggerated his disability. The commission accepted the videotape of April 27, 2001 (respondents exhibit 6), into evidence, because it was satisfied that the video fit within the general provision for authentication, Wis. Stat. § 909.01, which provides:

"909.01 General provision. The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

Wis. Stat. § § 909.015(3) and (4) provide:

"909.015 General provision; illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or
identification conforming with the requirements of s. 909.01:

(3) COMPARISON BY TRIER OF FACT OR EXPERT WITNESS. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) DISTINCTIVE CHARACTERISTICS AND THE LIKE. Appearance,contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances."

The individual videotaped on April 27, 2001, is unmistakably the applicant, the same individual videotaped on April 10, 2001. However, it should be noted that even if the video of April 27, 2001, not been placed into evidence and not been reviewed by the commission, the commission would have come to the same result based on the earlier video and based on Dr. Saluja's credible opinion.

cc: 
Attorney Michael T. Sheedy
Attorney Bonni D. Fredrick

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uploaded 2003/04/28