JOHN J. LANCE - v. CITY OF CAMDEN POLICE DEPARTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6606-06T36606-06T3

JOHN J. LANCE,

Petitioner-Respondent,

v.

CITY OF CAMDEN POLICE

DEPARTMENT,

Respondent-Appellant.

 

Argued September 25, 2008 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2005-31241.

Richard A. Barton argued the cause for appellant (Freeman, Barton, Huber & Sacks, attorneys; Mr. Barton, on the brief).

Herbert J. Stayton, Jr., argued the cause for respondent (Ridgway & Stayton, attorneys; Mr. Stayton, on the brief).

PER CURIAM

The City of Camden appeals from an award of temporary disability and medical benefits to petitioner, John J. Lance, a former City police officer. On appeal, the City argues that the workers' compensation court denied the City due process by failing to read a trial memorandum it had submitted, and by rendering a decision without properly considering a surveillance video the City had offered into evidence. The City also claims that the court's decision to award benefits was not supported by the record. We reject the City's arguments and affirm.

On May 10, 2004, Lance was injured on the job in a motor vehicle accident. Following the accident, he was treated at Cooper Medical Center, where the hospital record reflects that he woke up unable to remember the accident and complaining of a headache.

In October 2004, Lance began treatment with neuropsychoanalyst and closed head injury specialist, Dr. Richard Sadwin, who diagnosed Lance with post concussion syndrome (brain damage), post-traumatic seizure disorder, and depression, which prevented Lance from performing his duties as a police officer. Dr. Sadwin testified that although objective testing (EEGs, MRIs and CAT scans) of Lance was normal, his diagnosis was based on clinical and psychological testing, Lance's symptoms and his medical history. Typically, Dr. Sadwin diagnosed seizure disorders by patients' histories; he considered an EEG to be confirmatory, "just not that accurate."

Until October 7, 2005, when the City ceased paying for Lance's treatment, Dr. Sadwin treated him twice a week. His treatment included individual therapy; group therapy; oxygen therapy, which provided Lance with oxygen at home to relieve headaches and anxiety; and aqua/swimming pool therapy to relieve physical and mental discomfort. Dr. Sadwin also prescribed pain and anticonvulsive medications, sleeping pills, anti-depressants, and Ritalin. As of October 12, 2005, Dr. Sadwin considered Lance to be totally disabled.

Dr. Sadwin last treated Lance in March 2007. He diagnosed him with post concussion syndrome with seizures, right partial hemiparalysis, depression, anxiety and withdrawal; all causally related to the May 10, 2004 accident. He opined that the disabilities rendered Lance unable to perform his duties as a police officer. He explained that Lance could work only if he was supervised, and if his job did not require him to drive or make "remarkable decisions."

At the City's request, Dr. Dhiraj Panda, a neurosurgeon, examined Lance on August 17, 2005. He testified that Lance's medical records, including the emergency room report from the May 2004 accident, showed no evidence of head injury. In Dr. Panda's opinion, Lance did not suffer from a seizure disorder or brain damage. Dr. Panda concluded that Lance's subjective symptoms were not corroborated by objective physical findings. He opined that, neurologically, Lance suffered no residual effects of the May 2004 accident. Dr. Panda admitted on cross-examination, however, that the EMS report, the emergency room report and the attending physician's report showed that Lance complained of headaches, and those complaints could have indicated a brain injury.

On September 22, 2005, at the City's request, Dr. Jeffrey C. Pollock, a neurologist, examined Lance. Dr. Pollock could not confirm that Lance suffered a concussion from the accident. In his opinion, if Lance had seizures/passing-out spells, they were not related to the accident. The court asked Dr. Pollock if, considering that Lance carried a gun as a police officer, Lance was capable of returning to work. Dr. Pollock responded, "[F]rom a neurological perspective, I have no reason why he cannot. If you ask me if there are other issues going on, I would believe that there are. . . . [N]eurologically, I see no reason why he could not."

The case was tried between March 1, 2006 and June 6, 2007. On May 16, 2007, after completion of the testimony, the City requested another court date to present video surveillance evidence to the court. Referencing his impending retirement, the workers' compensation judge stated,

As you know I am leaving July 1st. So unless you want to come down to Gettysburg for me to give you a decision in the middle of the square during the reenactment of the Battle of Gettysburg I will be happy to invite you, but I would like to finish the case. I promised Judge Hickey I would finish all cases. So why don't you get together and see what you can do? Why don't you see if we can eliminate it?

The court then instructed the City to condense the seven hours of video depicting six days of Lance's activities between August 3, 2006 and August 31, 2006, into one hour.

On June 6, 2007, the court viewed that video evidence. It showed Lance installing an air-conditioning unit; driving a truck; operating a high-lift/boom lift, which lifted Lance into a tree; and operating a backhoe. Lance testified that he was not compensated for the work he performed in the videos, but he was helping his father and a friend. He testified that after the activity in one video, he suffered a headache, dizziness and vomited. That was not depicted on the video.

On the same day the court viewed the video, the City presented a trial memorandum to the court, but the trial judge refused to read it. Minutes after viewing the video, the court read a prepared decision, granting Lance's motion for temporary disability and medical benefits. In its decision, the court found that Dr. Sadwin's testimony was credible, and Dr. Panda's testimony was not credible because it contained contradictions. Regarding the video evidence, the court stated, "I would note that the video that I just saw showed some physical activities. It does not show any activity involving the use of the brain or attempted to negate the presence of the seizure disorder and the brain injury this individual has."

On appeal, the City claims that in making its decision, the court denied the City due process when: it failed to consider the video evidence; it read a decision that it had prepared prior to viewing the video; and it ignored evidence and refused to read the City's trial memorandum. The City argues that the judge denied the City a fair trial in an attempt to conclude the case prior to his retirement.

A party to a workers' compensation case has a fundamental right to due process, which includes the right to present and cross-examine witnesses. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 114 (2005). Though workers' compensation trials warrant the relaxation of technical rules of evidence, due process rights apply. Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986). A court's goal is not "swift disposition of cases at the expense of fairness and justice." Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83 (App. Div. 2001).

Applying these principles, the facts do not support the City's argument that its due process rights were violated. During the trial, the City was provided an opportunity to present lay and expert testimony and physical evidence, and cross-examine Lance and his expert. Although the workers' compensation judge may have expressed some impatience with the litigants and attorneys during trial, the record does not show that this impatience had an effect upon his decision. The judge viewed the videotape, and expressly rejected the City's argument as to the weight that it should be accorded. The court found that although the tape showed Lance performing some physical activities, nothing in the tape "negate[d] the presence of the seizure disorder and the brain injury." The City has presented no compelling reason for us to reject that finding.

Nor do we find that the court's refusal to read the trial memorandum denied the City due process. The City has not explained whether the trial memorandum included facts or argument that the court did not take into consideration in entering its decision. Even if it was error for the court not to review the trial memorandum, that error was not "clearly capable of producing an unjust result." R. 2:10-2. Harmless error will be disregarded by the appellate court. State v. Macon, 57 N.J. 325, 337-38 (1971). Said somewhat differently, although the court expressed a desire to resolve the case expeditiously, and should have reviewed the trial memorandum, the record does not show that this expeditious resolution of the case was at the expense of fairness or justice to either party.

The City claims it was denied a fair trial because the court read from a decision it had prepared prior to viewing the video. Though the court's decision may have been prepared prior to viewing the video, the court considered the video, as evidenced by its reference to it in its oral decision. The court simply did not find that the video was persuasive enough to negate the evidence that Lance was incapable of returning to work. That the court had written its proposed decision before seeing the video does not, under these circumstances, show that the court did not consider and weigh the evidence depicted on the video.

Next, we address the City's argument that the court's decision to grant temporary disability and medical benefits was not supported by the record. The City claims that had the court properly considered the surveillance video, that evidence would have required the court to conclude that Lance was able to work and thus was not entitled to temporary disability and medical benefits. Further, the City asserts that Dr. Sadwin's opinion that Lance was totally disabled should be discounted because it was not supported by objective medical tests, and the video diminished his credibility.

Our standard of review in a workers' compensation case is whether the court's findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency's expertise. Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We may not substitute our own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). The trial court's findings of the credibility of medical witnesses require our deference. Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999).

An employee who suffers an injury arising out of and in the course of employment is entitled to compensation. N.J.S.A. 34:15-1. Temporary disability benefits are payable from "the day that the employee is first unable to continue at work by reason of the accident," until the day "the employee is able to resume work and continue permanently thereat." N.J.S.A. 34:15-38. "An employee may be totally and permanently disabled and yet have some degree of earning power." Harbatuk v. S&S Furniture Sys. Insulation, 211 N.J. Super. 614, 624 (App. Div. 1986). An employee's ability to do some light work is not a basis to deny benefits when the employee is trained in a skill that he cannot perform because of his injury or when his employer has no light work available. Id. at 621-29 (court awarded temporary disability benefits to an employee, trained as a carpenter, who was capable of light work such as painting toys and repairing bicycles); see also Tobin v. All Shore All Star Gymnastics, 378 N.J. Super. 495, 501-02 (App. Div. 2005) (a trained gymnastics instructor was unable to serve as instructor after an injury, but was awarded temporary disability benefits despite her ability to continue serving as president of the company; the court found she could perform light duty work, but it was not the type for which she was paid as a salaried employee).

Here, the trial court weighed the evidence presented, making judgments on credibility and determined that Lance was unable to resume work. The court found that Dr. Sadwin's testimony was credible. As Lance's treating physician, he testified that Lance was not ready to return to work as a police officer and should not drive. He had previously opined that Lance was totally disabled.

The court rejected Dr. Panda's testimony that Lance's subjective symptoms were not corroborated by objective physical evidence. That finding was supported by the record, as Dr. Panda admitted on cross-examination that the EMS report, the emergency room report, and the attending physician's report confirmed that Lance complained of headaches. Dr. Panda also admitted that these complaints could have been indicative of a brain injury. Given that testimony, the court did not find that Dr. Panda's opinion that Lance did not suffer from a seizure disorder or brain damage was credible.

In sum, these findings by the court are precisely the factfinding and credibility determinations to which this court owes deference. It was well within the trial court's factfinding function to determine what weight to attribute to the experts' testimony and the surveillance video.

The City further argues that although Lance may not be able to work as a police officer, he is not so disabled as to be unable to perform any type of employment, so he is consequently disqualified from receiving temporary disability or medical benefits. We reject that argument. Dr. Sadwin's opinion was that Lance was totally disabled. Lance is trained and skilled in a particular profession. His doctor further testified that he cannot return to that profession. The video evidence showed Lance performing some limited physical activities, none of which involved police work. As we indicated in Tobin, supra,

"Although [the statute] does not contemplate that an employee be physically capable of returning to the identical employment he was engaged in at the time of the accident, Tamecki v. Johns-Manville [Products Corp.], 125 N.J. Super. [355,] 359 [(App. Div. 1973)], we think that the mere fact that petitioner might have been able to work a few hours at a time at light work should not be a sufficient basis for precluding an award of temporary disability benefits."

[378 N.J. Super. at 501 (quoting Harbatuk, supra, 211 N.J. Super. at 624)].

That analysis applies here. The light work shown on the video does not disqualify Lance from receiving disability benefits.

Affirmed.

 

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12

A-6606-06T3

October 17, 2008