A Judge of Compensation has the discretion to call and question witnesses in pending cases. A NJ Appellate Court affirmed the trial court award of additional weeks of temporary disability, the imposition of a 25% penalty for unreasonable and negligent delay in defending the case and 20% counsel fees.
Facts
A home health aide suffered a back injury on December 3, 2010, while lifting a patient. The employer's insurance carrier ordered diagnostic tests, epidural injections and even testing to determine if the injured worker could return to work. The employer did not offer a light duty position and terminated the injured worker.
The original claim resulted in a settlement on June 22, 2012, for 20% of partial permanent [PT] disability with a 5% PT prior function credit.
After several attempts, the injured worker was unable to return to work through 2011. One of the attempts to work was in the position of a cashier. The medical condition of the claimant continued to worsen over time.
An Application to Review and Modify the Former Award [Reopener] was filed. On January 29, 2014, the claimant underwent an L5-S1 spinal decompression and fusion surgery. The treating surgeon opined that on July 11, 2014, maximum medical improvement [MMI] had been reached. Medical experts were engaged and produced reports as to whether, and if how much disability, had changed/increased. A motion for Temporary Disability Benefits was filed.
The Judge of Compensation requested that the claimant's expert testify telephonically. Neither of the parties objected at the time. The court awarded 10 weeks of additional temporary disability benefits, assessed a 25% penalty for unreasonable and negligent delay, and a 25% counsel fee.
Inherent Judicial Power
The Appellate Division in affirming the lower court's opinion reasoned, ".... the judge had clear authority and justification to request Dr. Cohen's testimonial clarification of the findings contained in his written reports. Handleman v. Marwen Stores Corp., 53 N.J. 404, 411 (1969) (confirming the "inherent power" of a compensation judge to call and examine expert witnesses who, in the judge's "sound judgment," he or she "deems . . . necessary for a proper determination of the case"); see also N.J.R.E. 614 (analogously recognizing that authority of a judge in Superior Court cases). The judge also had the prerogative as fact-finder to consider Dr. Cohen more credible than Dr. Bhatnagar concerning Elias' post-surgical medical progress, even though the latter physician had performed the surgery. See Ramos v. M&F Fashions, Inc., 154 N.J. 583, 594 (1998)."
This ruling is consistent with the prior decisional law on the awarding of temporary disability benefits. "An employee who was terminated for an inexcusable absence, for failing to report to work for three consecutive days, was not able to recover temporary disability benefits for an intermittent or re-and current interval when the employee was deemed unable to work. The court reasoned that that actual absence from work was a prerequisite to an award for temporary disability benefits. Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J.Super. 423, 901 A.2d 956 (App. Div. 2006)." Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 12.1 (Thomson-Reuters 2017).
Analysis
Employers and their insurance carriers should pay workers' compensation benefits without delay. The parties should be aware that workers' compensation is remedial, social legislation. Also, the legislative intent in the enactment of the benefits system was to establish a summary and expeditious proceeding. Litigants should also take notice that a Judge of Compensation has expansive inherent judicial power to call and examine witnesses and to strictly enforce the Workers' Compensation Act.
Silva v. Life Care Services, Docket No. A-4867-15T3 2017 WL 4530879 (Decided October 11, 2017).
Capehart & Scatchard, PA - Appellant (Employer)
R.C. Shea & Associates, PC - Respondent (Injured Worker)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).
For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
