On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2005-31241.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2008
Before Judges Winkelstein and Fuentes.
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 ...