It is not uncommon when an employer suspects that an employee may be falsely describing the extent of an on-the-job injury for the employer to obtain video of the employee engaging in physical activities. A recent case involving a Chicago police officer serves as a reminder that video evidence that the employee has engaged in even vigorous physical activity does not necessarily establish that the employee is malingering, and that what is needed is evidence that the physical activity is inconsistent with the claimed extent of the employee’s injury.
The case involved Jennifer Koniarski, who joined the Chicago Police Department (CPD) in 2003. In her third week at the police academy, she sustained severe trauma to her right ankle during a training exercise, fracturing her right lower tibia and severely damaging three ligaments. In 2005, after an evidentiary hearing, the City’s Pension Board found her disabled and awarded her a 75% duty disability benefit.
Pursuant to Illinois’ Pension Code, Koniarski received periodic medical examinations to determine whether she had recovered from her disability. On June 28, 2018, the Pension Board scheduled a status review hearing based on newly acquired information consisting of several video recordings of Koniarski walking and performing various activities without a cane and/or ankle brace.
At the hearing, Officer Patricia Gallagher testified that she was employed in the CPD Medical Integrity Unit and was assigned to conduct surveillance of Koniarski in June and July 2017. She recorded a number of videos that were introduced at the hearing. A June 29 video showed Koniarski and another individual carrying a mattress; Koniarski was holding her end of the mattress with both hands and was not using a cane. A July 2 video showed Koniarski briefly walking alongside her brother without a cane, an ankle brace, or any noticeable limp. Another July 2 video showed her brother pushing a motorcycle up a ramp into a moving truck while Koniarski helped to balance the motorcycle from behind.
Gallagher never saw Koniarski running or jumping but she did see her “walking a lot” on July 2. She made approximately 15 trips out the back door and down a flight of eight steps to a U-Haul where she and her brother were loading boxes. Koniarski did not appear to be using a cane or ankle brace during any of those trips. The fourth and fifth videos, from July 5, depicted Koniarski walking through a mall parking lot and, later, walking back to her car carrying a 37-pound microwave. She was not using a cane and no ankle brace was visible in either video.
In holding that Koniarski was no longer disabled, the Pension Board stated that Koniarski was “not a credible witness” since she “portrayed instability” when appearing before the Board but did not display the same instability in the video recordings outside the Board’s presence. The Board also speculated that “the CPD’s decision in not providing Koniarski a job may well be grounded in their investigation of Koniarski and the video recordings obtained which show that contrary to Koniarski’s representations to the CPD she is able to ambulate without a cane or ankle brace.”
The Illinois Court of Appeals restored Koniarski’s benefits. The Court observed that “the Board’s credibility determinations are based on surveillance videos showing Koniarski walking and carrying objects without the use of a cane or visible ankle brace. However, Koniarski testified that she is only required to use a cane and ankle brace ‘as needed’ and that she openly walked around the academy without a cane ‘at times.’
“More importantly, with or without a cane or ankle brace, it is undisputed that she is unable to perform all the physical tasks necessary for full-duty police work, such as combat maneuvers, running, and kicking. All medical evidence indicates Koniarski has not fully recovered from her disability. As to the video evidence, an examining doctor clarified that the videos did not change his opinion of Koniarski’s condition since the actions she took were ‘within her limits’ and her condition could ‘increase and decrease throughout the day.’ Moreover, the ability to carry a microwave through a parking lot without assistance does not establish that Koniarski is able to perform full- -duty police work.
“Under these circumstances, where no limited-duty position is available to Koniarski and the CPD has expressly found that it cannot accommodate her physical limitations, she remains disabled and is entitled to disability benefits.”
Koniarski v. Retirement Board, 2021 IL App (1st) 200501-U (Ill. App. Ct. 2021).