On appeal from final determination by the Civil Service Commission.
Lynch, Kole and Petrella. The opinion of the court was delivered by Petrella, J.s.c. (temporarily assigned).
[159 NJSuper Page 125] The City of Newark appeals a determination by the Civil Service Commission adopting the findings and determinations of a hearing officer requiring the reinstatement of respondent Anthony Bellezza, Jr. as a Newark patrolman and awarding him back pay (less amounts received as pay in other employment
as mitigation of damages) and counsel fees under N.J.S.A. 40A:14-155.
A Civil Service hearing was held in August 1976 and the record supports the findings of facts stated. Respondent was then age 25, weighed about 275 pounds, and is 5' 11" in height. He was employed as a patrolman by Newark on July 1, 1972. In July 1974 he received a back injury, which is being disputed in another forum as to whether it is compensable under the Workers' Compensation Law. After that injury respondent was absent from duty from July 15, 1974 through October 24, 1974, when he returned for three hours on orders of the police surgeon who held the rank of deputy chief. As a result of a letter from his own doctor indicating a back operation was scheduled, as well as a telephone call to the police surgeon from his attorney, respondent was relieved from duty that same day. A laminectomy was performed on respondent November 3, 1974. He remained out of work until about November 1975, when he attempted to report back on duty after being released by his doctor.
In early 1976 respondent was served with a Civil Service form captioned "Preliminary Notice of Disciplinary Action," which indicated an intent to remove him from his position because of his inability to perform his duties due to his physical condition.
An orthopedist retained by the city to examine respondent testified that in his opinion respondent was disabled to the extent of 5% permanent total of the back, and expressed the opinion that he should not be performing strenuous work. Although respondent did not produce his own medical expert, that orthopedist conceded on cross-examination that respondent, who regularly lifted weights of up to 200 or 220 pounds, could do anything that he wanted to do. In addition, the police surgeon testified that he had permitted
another policeman who had had a laminectomy to return to active duty.
Appellant complains that it was error to have allowed respondent to testify to statements of his doctor to the effect that his back operation was a complete success and that there was no reason for respondent not to return to work. In administrative hearings the rules of evidence are not as strictly applied as in court proceedings. See In re application of Howard Savings Bank , 143 N.J. Super. 1, 6 (App. Div. 1976); David v. Strelecki , 97 N.J. Super. 360, 368 (App. Div. 1967), rev'd on other grounds, 51 N.J. 563, cert den., 393 U.S. 933, 89 S. Ct. 291, 21 L. Ed. 2d 269 (1968). See also, N.J.S.A. 52:14B-10(a). In any event, we have carefully reviewed the entire record, including the testimony of the orthopedist, and find sufficient credible testimony in the record to support the Commission determination ordering the reinstatement of the respondent with back pay, less amounts in mitigation. See Campbell v. Civil Service Dep't , 39 N.J. 556, 562 (1963); Harvard v. Bushberg Bros., Inc. , 137 N.J. Super. 537, 540-542 (App. Div. 1975), certif. granted, 71 N.J. 493, appeal withdrawn (1976). Any error as to hearsay evidence of a doctor's statements was clearly harmless.
However, we disagree with the determination by the Department that N.J.S.A. 40A:14-155 allows counsel fees in cases of this nature. The statute was ...