Before Judges Wallace, Jr. and Lesemann
and Bilder. *fn1
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 14, 1999
On appeal from the Department of Labor, Division of Workers' Compensation.
This is a workers' compensation appeal by petitioner from the dismissal of her petition. We reverse.
Petitioner suffered injuries from a compensable accident on April 14, 1989. She filed a claim petition on December 17, 1990 and an amended claim petition on May 29, 1992, alleging subsequent additional injuries to her back and shoulders "as a result of the extreme difficulty she had while walking/limping."
The matter was tried on June 5, 1998 and October 9, 1998. The evidence at trial included the testimony of petitioner, the medical reports of five medical experts in lieu of their testimony, and testimony of an investigator retained by the employer. Plaintiff testified at the hearing on June 5, 1998, and the medical reports were submitted at the hearing on October 9, 1998.
The medical examinations of petitioner and the resulting reports were accomplished between June 1994 and June 1996. All of the doctors agreed that petitioner was permanently impaired but in varying percentages.
The trial judge also made observation of the appearance of petitioner's injuries. He noted the brace petitioner wore on her left leg was a set of steel rods attached to a plastic appliance, which fit around the left leg just below the knee and was attached to a special shoe. He noted that petitioner's left foot was somewhat atrophied with a significant skin graft on the inner aspect of the left foot.
Following the submission of petitioner's evidence, the employer's private investigator, Michael Beukena, testified at the hearing on October 10, 1990. Beukena performed video surveillance of petitioner on various occasions. The video *fn2 taken on December 10, 1997 showed petitioner walking while carrying a large bundle with no apparent difficulty and no cane. The video taken on December 11, 1997 showed petitioner carrying toy store merchandise which she placed in the trunk of her car before driving away. Later petitioner was shown carrying a basket of groceries after shopping for about thirty minutes and displayed no apparent difficulty while walking or loading the groceries in the trunk of her car. The video taken on January 12, 1998 showed petitioner leaving the Workers' Compensation court wearing the brace on her left foot. Later that day, she was videotaped walking normally without a brace or her cane while visiting a model home with her husband. The video taken on January 15, 1998 showed petitioner pushing a shopping cart and lifting bags of groceries in each hand. She was not wearing the brace and did not use a cane while walking with no apparent difficulty. The last video taken on February 23, 1998 showed petitioner walking around the block and then picking up a garbage can and carrying it into her house.
The Workers' Compensation judge rendered his decision on October 30, 1998. After reciting the facts, the judge stated:
When the Petitioner appeared and testified before me, she walked with a cane, she appeared to be depressed to me, as a lay person. She wore the brace on her left foot, which she demonstrated to me in chambers. The Petitioner made a very sympathetic witness, and the court was impressed with her testimony giving it some degree of credibility based upon the admitted severity of the original injury and the nature of the treatment which the Petitioner underwent following that injury. The fact that the Petitioner is in receipt of Social Security disability benefits was one additional factor which entered into the court's feeling with regard to the credibility to the Petitioner on the date of her testimony. All of that, however changed when the Respondent produced videotape on October 9, 1998 taken by Michael George Beukena, a professional investigator who videotaped the Petitioner on December 10, 1997, on December 11, 1997, on January 12, 1998, on January 15, 1998.
I have seen people exaggerated, I have seen video brought in on many occasions, and most of the time, the video is innocuous; it neither demonstrates that the petitioner is able to perform to a degree greater than the testimony or it shows that the Petitioner is able to do some of the things that the testimony said they were not able to do. Most of the time the video essentially shows someone who may have testified that they can't do anything but what they mean is that they can't do ...