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(c) 2018 Jon L Gelman, All Rights Reserved.

Friday, August 11, 2017

The Facts Don't Change Because You Try a Case

In my early days in the practice of law,  when I was eager to try every case, my dad, a lawyer, used to remind me that, "The facts don't change because you try a case." I  was reminded of that adage while reading a recent NJ Appellate Court's opinion, where a respondent unsuccessfully appealed the trial court's decision.


In that case, the parties agreed to submit the case on reports and the issue was the nature and extent of the injured workers' disability. The worker had an accident in 2011 and an Order Approving Settlement was entered on the record in October 2012 for 22.5% of Partial Total disability.

While the petitioner testified in person about his increase in disability, the parties agreed to submit the new treating physician's and medical experts' report into evidence, thereby waiving their right to cross examination the witnesses.

The Judge of Compensation (JOC) reviewed all the evidence and rendered an oral opinion from the bench awarding an additional 20% of partial total disability. The JOC outlined her opinion and reasons in detail after a thorough evaluation of the evidence.

The respondent appealed the award, alleging that the Judge had not thoroughly reviewed the evidence.  In an unreported Per Curiam decision, the Appellate Court affirmed the JOC. It is noteworthy to focus on the Appellate Court's rationale:
"Respondent's argument is based largely on parsing out and isolating different parts of various medical records and reports, rather than construing them as a whole. In addition, respondent is critical of petitioner's expert's reports because the reports' explanations concerning the extent of petitioner's increased disability and the causal relation of that increase to the original accident does not contain sufficient elaboration. Yet, by agreeing to present the medical evidence in reports rather than by experts' testimony, respondent now criticizes the JOC for doing precisely what the parties tasked her with doing; namely, reviewing the documentary evidence as a whole and determining the credibility of conflicting reports based on all the documentary evidence as well as petitioner's testimony. That is precisely what the JOC did, and her findings are amply supported by the documentary evidence and petitioner's testimony."
"The facts don't change because you try a case."

KEVIN ROY VS. MARSDEN & SONS ELECTRIC (DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, DIVISION OF WORKERS' COMPENSATION) A-1324-15T1 , 2017 WL 3400810, Decided Aug. 09, 2017

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.