Frequently a workers’ compensation hearing officer divides a litigated matter into two phases, compensability and damages so litigation can be conducted in a more efficient manner. The procedure is designated as bifurcation and the limitations imposed by the procedure must have carefully adhered to while the adjudicating the claim.
A New Jersey appellate court recently ruled, in an unpublished opinion[1], that a judge of compensation committed reversible error by exceeding the constraints of the bifurcation process. The hearing officer decided the compensability of a denied accident and then went further by awarding damages by way of granting an award for the temporary disability.
An injured worker claimed that he suffered an accident during his employment because of carrying a heavy package at the employer’s place of business. The accident was reported by “text message” and voice message” after he had left the place of employment and returned home. The court assessed the witnesses’ credibility while testifying and determined the injured worker to be credible.
At the time of the trial, the employer relied on a written note from the injured worker’s doctor that stated, the worker “was shoveling snow and developed severe low back pain with right leg radiation.” The attorney for the employer failed to call the doctor as a witness during the trial. The appellate court held that the judge of compensation could give the written note whatever weight it wished to do so, and upheld the finding of the workers’ compensation hearing officials ruling that the matter was compensable and then, despite the bifurcation of the trial, entered an award for temporary disability benefits.
In a collateral issue raised on appeal, prior to making the determination, the judge of compensation, on her own volition sought and relied on additional factual information from the State of New Jersey. She “contacted the State and was advised” that the injured worker had been paid temporary disability benefits” for a certain period. The reviewing appellate tribunal rule that “Judges should not conduct their own factual investigation, let alone do so without notice and an opportunity for the parties to be heard. See Lazovitz v. Bd. of Adjustment, Berkeley Heights, 213 N.J. Super. 376, 381-82 (App. Div. 1986); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960).” and deemed such action as inappropriate, but vacated the Order for other reasons.
Interestingly, whether a Judge could take “judicial notice” of temporary disability payments was not discussed. “Judicial notice” is a rule of law in evidence that allows a fact to be introduced into evidence if the truth is so authoritatively attested that it cannot be reasonably contested. The NJ Division of Workers’ Compensation normally cross-matches payment information of State temporary disability benefits to efficiently satisfy statutorily imposed liens and eliminate duplicate recoveries. "Administrative procedures are in place for avoiding duplication of benefits in cases where claimants have pursued temporary disability benefits under both the Temporary Disability Benefits Law (TDBL) and the New Jersey Workers' Compensation Act (WCA)." Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 17.10.50. Temporary disability liens–non–duplication of benefits (Thomson-Reuters 2018).
The award of temporary disability benefits was reversed by the appellate division and the matter was remanded to the Division of Workers’ Compensation for further hearing on that issue. The court held, “Despite bifurcation, the judge found that Moran was entitled to temporary disability benefits and appears to have made other findings of the nature of the injury. These other issues were decided without warning and deprived Cosmetic of an opportunity to present evidence or to confront the evidence upon which the judge relied. Because the judge mistakenly exceeded the limits of the bifurcation agreement, we vacate those parts of the order under review that granted temporary disability benefits and other relief to Moran, and we remand those proceedings that would naturally have followed the determination that Moran sustained a work-related injury.”
While bifurcation allows for judicial efficiency, the constraints imposed by procedure need to be strictly followed.
Moran v. Cosmetic Essence, LLC, Docket No. A-2588-1671 (N.J. App. Div. 2018) Decided March 14, 2018. 2018 WL 1308857 Only the Westlaw citation is currently available.
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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).
[1] 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.
