Of what value is video surveillance? The answer to that question is “as much value as the Judge places on it.”
Video surveillance is often relied upon by the defense in New Jersey Workers’ Compensation cases to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination. A recent case (Gross v. Neptune) has been relied upon by plaintiff’s attorneys to limit the introduction of videotape evidence in contested workers’ compensation trials in New Jersey.
In Lance v. City of Camden Police the claimant alleged a closed-head injury resulted in “post-concussion syndrome” leaving him unable to perform his duties as a Camden Police Officer. The claimant’s treating doctor, (Dr. Richard Sadwin) testified that although objective testing of the claimant (EEGs, MRIs, and CT Scans) was normal, based on psychological testing and clinical observation the claimant was unable to return to work as a Police Officer.
The City of Camden countered with the testimony of Dr. Dhiraj Panda who opined that the claimant had “no residual neurological’ impairment.
The case was tried.
On the last trial day, the respondent City of Camden introduced a video into evidence. The video was one hour long and showed the claimant installing an air-conditioner unit, driving a truck, operating a high-lift/boom lift, climbing a tree, and operating a backhoe, all while “totally disabled” according to his testifying doctor (Dr. Sadwin).
The Judge of Compensation viewed the video and then immediately read a pre-written decision, finding the claimant totally disabled due to the head injury. The videotape evidence was mentioned in the oral decision, but the Judge stated that the video “does not show any activity involving the use of the brain.”
The employer appealed the decision, arguing that the Judge of Compensation denied the City of Camden its due process rights by ignoring video-tape evidence and refusing read the employer’s trial brief.
The appellate court found that the Judge of Compensation handled the case “expeditiously” and should have reviewed the trial brief of the employer’s counsel. However, the appellate panel also stated that the failure of the Judge to read the brief was not a reversible error “clearly capable of producing an unjust result” (quoting R. 2:10-2). The Appellate court also found that the Judge’s reading of a decision that was written before the Judge ever saw the videotape evidence was acceptable because the Judge referred to the video in his oral decision and “simply did not find the video persuasive enough to negate the inference that [the claimant] was incapable of returning to work.”
In reviewing the Appellate decision, it is striking that the claimant was not cross-examined with the video evidence – that is, his testimony as to his working ability was not challenged by the video showing him clearly capable of operating heavy machinery and perform various types of work. The surveillance video in this case would have had impeachment value to attack the credibility of the claimant. In light of the fact that the medical diagnosis was based on subjective “observation” and psychological testing, a direct challenge to the credibility of the claimant may have been more fruitful in challenging the nature and degree of permanent disability in this case. Instead, defense counsel appears to have waited until all testimony was concluded before the video was introduced, which severely limits the impact of such evidence (for example, it could have been sued to cross-examine the petitioner’s testifying doctors, etc.).
Case: John J. Lance v. City of Camden Police Department, A-6606-06T3 (App. Div. decided October 17, 2008)(Judges Winkelstein & Fuentes, unpublished as of blog date).