On appeal from the Department of Labor, Division of Workers' Compensation, Claim No. 99-008680.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Stern, Coburn and Wecker.
An administrative regulation governing discovery in workers' compensation cases requires the employer to disclose in the pre-trial memorandum its intent to offer at trial any surveillance videotapes or films of the employee. The primary question presented by this case is whether the employer can avoid its obligation of notification by delaying surveillance without special justification until after the trial has begun and then offering the videotapes just before its last medical expert testifies. Our answer is no.
On January 15, 1999, petitioner, Danielle Gross, was injured while performing her assigned tasks as a police dispatcher for respondent Borough of Neptune City ("Neptune"). She filed a petition for workers' compensation in March 1999, and Neptune filed its answer in April. Neptune has not included the pre-trial memorandum in the record, but we know that it did not include a reference to surveillance materials since none existed when the trial began, as this colloquy between the judge and Neptune's counsel reveals:
THE COURT: By that I mean of course the respondent is not going to come in with a tape or anything and tell us the last day of trial that you have a tape or anything like that?
THE COURT: So there are no surprises.
Gross testified on the first day of trial, February 24, 2003. We will not describe her testimony because Neptune does not argue that the judgment was unsupported by the evidence.
Neptune's video surveillance began a few weeks later, on March 11, and was continued on March 14 and 21. On April 7, Gross's medical experts testified, but Neptune made no attempt to use the surveillance videotapes on cross-examination. Further surveillance videotapes were made on April 16, 18, 27 and 28. On May 19, Neptune's first medical expert testified, and again there was no reference to the tapes. Further surveillance videotapes were made on June 16 and 26; and on June 30, just before calling its last medical expert on what was scheduled to be the last day of trial, Neptune offered all of the tapes in evidence, while also proposing to have its medical expert testify about them.
The excuse given for the delayed taping was that Neptune's counsel did not realize until Gross testified that she was exaggerating her injuries. But, as the judge noted, long before trial Neptune's counsel had a report from his medical expert stating that Gross's injuries were far less serious than her physicians had claimed in their reports. After a lengthy argument the judge refused to admit the videotapes into evidence. Neptune moved for ...