Administrative Rules in Workers’ Compensation May Not Infringe Upon The Right to Due Process Court Holds

The right to cross examination medical experts, in a bifurcated claim cannot be extinguished by administrative rules, according to a decision rendered by a NJ Appellate Court.

A total disability claim involving the Second Injury Fund [SIF] was the subject of a bifurcated trial. At the first phase of the trial only the injured party and employer participated. After hearing the matter ,including medical evidence, a total disability award was entered.

In the second phase the trial court heard testimony as to allocation of the award between the employer the SIF. The barred the re-introduction of additional testimony from the injured workers’ medical expert. The SIF objected and on appeal prevailed.

The Court stated, “… administrative regulations cannot be ‘construed to infringe upon the substantive rights of either party’…..the employer's ‘fundamental right to due process which includes the right to present and cross[-]examine a witness, must be respected.’"

Nisivoccia v. County of Essex, et al., Docket No.. A-1864-07T21864-07T2, 2009 WL 2589480 (N.J.App. Div. 2009)