BEFORE:          Diana Ferriero
                        Judge of Compensation

APPEARANCES:

                        GELMAN GELMAN & WISKOW
                        One Broadway
                        Elmwood Park, New Jersey 07407
                        Attorney for the Petitioner

                        EDWARD HOAGLAND JR.
                        100 Franklin Square Drive, Suite 301
                        Somerset, New Jersey 08873
                        Attorney for the Respondent
 

DATE:                November 29, 2005

        This is the Court’s decision in the case of Frank Giordano vs. A. Giordano & Sons, Claim Petition 2002-28595. 

        Respondent stipulated to all jurisdictional facts.  The parties agreed to a trial on reports and waived their respective rights to cross examine the medical experts.

        There are two issues before the court:  1) the admissibility of surveillance videos of petitioner taken February 10, 11 and 14, 2005 and March 30, 2005; and 2) the nature and extent of petitioner’s permanent disability.

        The parties signed a Pretrial Memorandum (“Pretrial”) on June 14, 2005.  Pursuant to the Pretrial, petitioner sustained an accident arising out of and in the course of his employment on August 24, 1998.  Petitioner earned $720 per week, and he had no compensable lost time.  Petitioner was successful in his third party action, and respondent is entitled to a Section 40 lien credit. 

        At the start of the trial, the Court marked the Pretrial as C1-Evidence, and both parties agreed no modifications were necessary.  (T. 3 L. 10-14)  At the conclusion of petitioner’s testimony and after the admission of the doctors’ reports, respondent counsel sought to offer into evidence two surveillance videotapes of petitioner.  Counsel for petitioner objected as she had no prior notice of the tapes.  The Court directed that the tapes be marked for identification only and reserved on the admissibility of the tapes.

ADMISSIBILITY OF SURVEILLANCE VIDEOS

        N.J.A.C. 12:235-3.91(a) provides, in pertinent part,

i.                   Any party that intends to utilize videos…

including surveillance tapes, must indicate that such

media will be utilized at trial and identify the witness

who will authenticate and testify concerning the

materials to be presented in the “Other Witness”

section of the pretrial memorandum or as an

addendum to the pretrial memorandum.

        Here, respondent failed to comply with the mandate of N.J.A.C. 12:235-3.91(a).  As noted, respondent did not include the existence of the videotape surveillance on the Pretrial.  Nor did respondent advise the Court of the existence of the surveillance video immediately prior to the start of the trial.  Respondent waited until petitioner testified and the expert reports were moved into evidence to alert the court and the petitioner as to the existence of the surveillance tapes.   Nor did respondent counsel offer anyone to authenticate the surveillance tapes as required by N.J. Evid. R. 901[4].

        In Gross vs. Borough of Neptune City 378 N.J. Super. 155 (App. Div. 2005), the Appellate Division noted that N.J.A.C. 12:235-3.91(a) “was adopted, in part, to ensure employees have a fair opportunity to meet what can appear to be devastating evidence against them…withholding surveillance until after the trial has begun, would not only cause undue expense and delay-it would be inconsistent with the purposes of the rule and with a decent respect for the notice requirement that is central to our concepts of due process and fundamental fairness.”  Id. at 159.

        Given N.J.A.C. 12:235-3.91(a) and the holding in Gross, I have excluded the video surveillance tapes of the petitioner and have not reviewed same.

NATURE AND EXTENT OF PERMANENT DISABILITY

        On August 24, 1998, petitioner, then a 58 year old plumbing contractor, was driving the respondent van when he was broadsided by a vehicle that disregarded a stop sign.  The force of the impact caused petitioner’s van to flip over onto its roof.  Petitioner’s nose struck the steering wheel, his head struck the ceiling of the van, his left arm and left shoulder came into contact with the ground and his right leg struck the steering wheel.

        Petitioner initially presented at the emergency room of Hackensack University Medical Center, and he then came under the care of several doctors.  Petitioner presented to Dr. Mary Swajian on August 28, 1998 and gave complaints of light headedness, daily headaches, nasal pain, cervical pain with radiation into the left shoulder, left shoulder pain and thoracic and lumbar pain with bilateral radiation into the buttocks and right thigh radicular pain.  On exam, Dr. Swajian noted a mild antalgic gait veering toward the right, deviation over the bridge of the nose and pain on palpation to cervical and lumbar spines.  Dr. Swajian noted echymoses over the left shoulder and pain on palpation of the left acromioclavicular joint.  Dr. Swajian prescribed a course of physical therapy and referred petitioner to Dr. Ronald Low.

        Dr. Low diagnosed petitioner with a depressed fracture of the nose with sutured laceration and a septal displacement.

        On August 14, 1998, petitioner presented to Dr. Michael Gross complaining of low back pain with radiculopathy.  Dr. Gross diagnosed petitioner as having lumbosacaral sprain and strain with secondary spasm.  He administered a steroid injection and prescribed physical therapy. 

        At the October 21, 1998 visit, petitioner complained of left shoulder pain.  Dr. Gross’ exam showed positive impingement signs.  Dr. Gross administered a steroid injection into petitioner’s left shoulder and prescribed anti-inflammatory and physical therapy.

        Petitioner continued to have positive findings on exam relative to the left shoulder and lumbar spine at the November 18, 1998 visit.  Dr. Gross diagnosed petitioner with internal derangement of the left shoulder with possible torn rotator cuff and lumbar strain and spasm.

        A MRI of the left shoulder taken on December 10, 1998 showed tendonitis or a small tear of the supraspinatous tendon, mild degenerative changes of the acromioclavicular joint and slight separation of the midport of the posterior glenoid labrum.  Dr. Gross then diagnosed petitioner with a torn left rotator cuff and recommended arthroscopic surgery.  However, petitioner never underwent surgery.

        Petitioner next presented to Dr. Dante Implicito with a complaint of constant low back pain.  Dr. Implicito reviewed the lumbar MRI dated October 7, 1998 and noted it was significant for disc osteophyte complex at L4-L5.  Petitioner underwent a discogram on November 10, 2000 which was quite positive at L4-L5.

        In May/June 2005 petitioner treated with a Dr. Neumann because his back pain had significantly worsened.  Dr. Neumann placed petitioner on a course of prednisone, and petitioner then underwent another course of physical therapy with Steve Churchill.

        At trial, I found petitioner to be straight forward, no-nonsense individual.  Petitioner admitted that initially his nose was “cut up pretty bad” (T. 6, L.3), he testified he no longer has problems with his nose.  (T. 8, L.1-2)

        However, petitioner testified that he continues to have problems with his left shoulder and low back and that those injuries have adversely impacted his plumbing business and his ability to pursue his favorite recreational activity, namely golf.

        With respect to his left shoulder, petitioner has constant pain, limited mobility and limited strength.  The left shoulder pain disrupts his sleep and prevents him from sleeping on his left side.

        With respect to his low back, climbing stairs or a ladder causes increased pain as does standing or sitting for more than 15 minutes.

        Petitioner played two rounds of golf (36 holes) two to three times per week before this accident.  Now he only plays one round of golf (18 holes) once per week.

        Most significantly, petitioner has significantly reduced the plumbing work he does because he can no longer physically endure the heavy, repetitive physical work required to be a full-time plumber.  He currently only works four days per week, three to four hours per day for respondent doing “light” plumbing work such as faucet, sink and drain replacements and installation of vanities and toilets.  Before the accident, petitioner installed boilers, water heaters and cast iron piping.

        Petitioner admitted that since the accident he has performed “heavy” plumbing work on an emergency basis but only for long standing customers.  However, he emphasized that it is extremely painful for him to do such work and that he suffers for days afterward.

        Recognizing that he could no longer do the heavy plumbing work, petitioner applied for and obtained the position of plumbing inspector for several municipalities.  The plumbing inspector position is significantly less strenuous that being a plumber.

        This case has the usual disparity in the estimate of permanent disability offered by the doctors.  However, our appellate division has held that “the judiciary is not bound by the medical estimates offered by one or all of the physicians.”  Lightner vs. Cohen, 76 N.J. Super. 461, 465 (App. Div. 1962), certif. denied 38 N.J. 611 (1962).   Thus, I have used the estimates of disability offered by Doctors Tiger, Malesky and Matarese as a guide in reaching my own independent conclusion regarding petitioner’s degree of disability.  All doctors found objective medical evidence of permanent disability, and I adopt their findings as my own.

        It is the Court’s opinion that petitioner has sustained a 37.5% partial total disability, orthopedic and neurological in nature, for a chronic left rotator cuff tear with traumatic arthritis, arthrofibrosis and muscle atrophy and for chronic lumbosacral strain syndrome with chronic myofascitis with bilateral radicular symptoms with aggravation of preexisting degenerative arthritis at L4-L5.  As previously stated, I found petitioner to be a most credible witness.  Petitioner did not exaggerate his complaints.  He readily admitted that he no longer had complaints relative to his nasal fracture.  The complaints he gave are of the type one would expect given the nature and extent of the injuries and given the type of work petitioner performs. 

        While all evaluating doctors found objective medical evidence of permanent disability I find Dr. Tiger’s findings to more persuasive and credible because his findings more aptly explain why petitioner continues to suffer the complaints he does.

        I did not give respondent an Abdullah credit for the degenerative changes noted on the MRIs because respondent did not provide any proof that the preexisting arthritic changes adversely impacted petitioner’s functional capacity prior to the date of the accident.  Petitioner testified he never sought medical treatment for his left shoulder or low back before the happening of this accident.

        Petitioner is entitled to $61,875 which equates to 225 weeks of compensation at $275 per week less the Section 40 Lien credit.  Counsel shall advise the Court of the amount of the Section 40 Lien credit, and the Order for Judgment will then be finalized.

November 29, 2005                                _____________________

                                                               Diana Ferriero, J.C.