Workers’ Compensation matters are adversarial in nature and must furnish all parties with due process, a concept that embodies fundamental fairness[1]. There are two sides, at least, to very story, and the justice requires that the hearing official balance the facts to determine an appropriate result within the confines of the rule of law.
To ascertain the truth parties have the right to cross-examine witnesses. If that right is denied, the concept of fundamental fairness is suppressed.
A judge of compensation ordered stem cell medical treatment. Presented with evidence by way of expert opinion the judge was held to have denied the parties fundamental fairness by not allowing a medical expert to be cross-examined and failing to go on the record to memorialize the proceeding.
The issue arose in a workers’ compensation matter where the injured worker moved for stem cell medical treatment to relieve a shoulder injury. The compensation judge held an off the record conversation with the parties in chambers and spoke to the medical expert on the telephone. The compensation judge ruled, without taking medical testimony, that the proposed controversial treatment, not FDA approved, was approved.
The Appellate Division in reversing the compensation judge’s decision, stated:
“Where an important issue is discussed in chambers, “a record must be made or a summary placed on the record as to what transpired in chambers. Only then is effective appellate review insured.” Klier v. Sordoni Skanska Const., 337 N.J. Super. 76, 86 (App. Div. 2001). We see no reason why the same caution should not apply where the motion for medical benefits is contested and a hearing is necessary.
“ We recognize that under the Act, “hearing evidence, exclusive of ex parte affidavits, may be produced by both parties, but the official conducting the hearing shall not be bound by the rules of evidence.” N.J.S.A. 34:15-56. We also have held that “[w]hile the technical rules of evidence may be relaxed at workmen’s compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights.” Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 95-96 (App. Div. 1986) (citing 3 Larson, The Law of Workmen’s Compensation, § 79.25(c) (1983)). This includes the right of cross-examination. See id. at 96; see also California v. Green, 399 U.S. 149, 158 (1970) (describing cross-examination as “the greatest legal engine ever invented for the discovery of truth” (quoting 5 Wigmore on Evidence § 1367 (3d ed. 1940))); State v. Castagna, 187 N.J. 293, 309 (2006) (emphasizing importance and efficacy of cross-examination).
"Crothall opposed stem cell treatment because it was not FDA approved. Dr. Krone’s testimony in chambers was not recorded and it was not taken under oath, yet it was found to be credible by the judge without affording Crothall the opportunity for cross-examination. We find that the procedures lacked fundamental fairness. We reverse the order and remand the motion for medical benefits to the workers compensation division for further proceedings consistent with this opinion. We do not express an opinion in support of or against petitioner’s claim for stem cell treatment in light of the inadequacy of this record.
Even though the rules of evidence may be relaxed in a workers' compensation proceeding, the concept of fundamental fairness requires that the parties have the right to cross examine expert witnesses and that a formal record be made of the proceedings, even if conducted in chambers.
Haggerty v. Crothall Service Group, Docket No. A-4478-17T4, 2019 WL 1975907 (Decided May 3, 2019) UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. 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. Superior Court of New Jersey, Appellate Division.
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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 1.973.696.7900jon@gelmans.com has been representing
injured workers and their families who have suffered occupational accidents and illnesses.
