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Tuesday, December 26, 2017

Workers’ Compensation and Judicial Discretion - Unpublished Decision

Even if something looks, sound and smells correct, judges must use their discretion within the bounds of due process restrictions. The road to final justice in workers’ compensation can sometimes be a long one.


The New Jersey Appellate Division in a recent unpublished decision, recently held that a judge of compensation mistakenly exercised his discretion by awarding benefits on the limited record before him.

The case involved a hospital employee who had witnessed the death of a patient and filed a claim for psychiatric disability. The claim was admitted by the employer. The worker sought the payment of a period of temporary disability benefits and produced a report on short notice before a court held a conference. While a motion for temporary disability benefits had not been filed, the court went on the records and worded benefits based upon the contents of the medical report.

The employer alleged on appeal that:
  1. A gap in lost time alleged existed; 
  2. An intervening and superseding event occurred; 
  3. It was unable to investigate the allegation in a timely fashion; 
  4. A motion for temporary benefits was not before the court; and 
  5. The injured worker offered no evidence of wage loss.

The Appellate Court reversed the award and remanded the case back to the judge of compensation.

While the rules of evidence are “somewhat” loose in workers’ compensation, the judge of compensation is bound by the constitutional requirement of due process. “In order to assure fundamental due process in a workers' compensation hearing, opposing counsel may have the right to request the opportunity to cross-examine a witness instead of merely accepting his written report. A workers' compensation proceeding provides for the relaxation of the technical rules of evidence; however, the fundamental rights to confront witnesses, to examine them, and to have a record of their testimony are upheld. Paco v. American Leather Mfg. Co., 213 N.J.Super. 90, 516 A.2d 623 (App.Div.1986)." Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 28.1 fn 2 (Thomson-Reuters 2017).

Dana Munch v. Atlantic Health System, Docket No. A-1265-16T1, Decided December 21, 2017, 2017 WL 6546902. Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

*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.

1:36-3. Unpublished Opinions No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.

Note: Adopted July 16, 1981, to be effective September 14, 1981; caption and rule amended July 13, 1994, to be effective September 1, 1994; amended July 12, 2002, to be effective September 3, 2002; amended July 23, 2010, to be effective September 1, 2010.


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.