This is a LAT motion decision on two issues: (1) The insurer requested an adjournment of the hearing because it underwent a cyber attack and did not have access to internal files, computers, or email; and (2) the claimant requested that the insurer’s surveillance evidence be excluded because it was disclosed outside of the timelines provided in the case conference order, which ordered that evidence be disclosed by May 21, 2021, and at the latest October 15, 2021. The surveillance report and video, which had been completed in 2018, was served on October 28, 2021. The claimant argued that the surveillance evidence had little probative value, late disclosure prevented him from preparing witnesses on it, and inclusion of the surveillance evidence would elongate the hearing. The insurer argued that the surveillance evidence was not disclosed through inadvertence and the disclosure date still complied with Rule 9.2 of the LAT Rules, and that the video was relevant because it showed the claimant functioning at a higher level than he claimed. Adjudicator Lester ordered that the hearing be adjourned for three weeks and that the surveillance video and report be excluded. Adjudicator Lester found that the surveillance report and video had little probative value and were not relevant to the issues in dispute. Adjudicator Lester noted that the video was not used to determine the benefits in dispute and had not been provided to assessors for comment. Adjudicator Lester differentiated three cases relied on by the insurer as the surveillance evidence was considered relevant to the issues in dispute in the other three cases in which late-served surveillance evidence was allowed. Adjudicator Lester found that the prejudice the surveillance evidence would cause to the claimant in preparing his witnesses and elongating the hearing would outweigh its probative value.
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