A Due Process Travesty in a Workers Compensation Case

McGory v. SLS Landscaping, 463 N.J. Super. 463 (App. Div. 2020). Judge Vernoia pulled no punches in this opinion for the Appellate Division today. Writing for a unanimous panel, Judge Vernoia concluded that a Judge of Workers Compensation had denied due process to the injured claimant in multiple ways.

The claimant alleged that he had fractured his foot when he jumped from a loft while working at respondent’s premises. Respondent claimed that the injury occurred when the claimant jumped off a ladder at his home, not while at work for respondent.

The claimant refused medical treatment offered by his supervisor, saying that he would rely on his own insurance. The supervisor did not tell him that doing so was improper.

Fearful that reporting he had been injured at work would result in “punishment at [his] workplace,” and lacking an understanding of workers’ compensation insurance or his rights in that regard, the claimant told two health care providers, an urgent care center, and a hospital that the injury occurred when he fell off his roof at home while cleaning gutters. But after his parents explained workers’ compensation to him, he corrected his statements. Nonetheless, when the claimant filed for workers compensation, respondent opposed it because the claimant had said that he was not injured on the job.

At the first hearing, the compensation judge took testimony from two representatives of respondent, neither of whom saw the injury occur, but not from the claimant. During that hearing, and at the next hearing, the judge repeatedly questioned whether the claimant might be guilty of fraud. That was despite the fact that respondent’s counsel disclaimed any intent to file a fraud motion.

Moreover, the judge stated that the claimant’s view was “let the taxpayers pay for my health insurance. Let the taxpayers pay me [temporary disability benefits]. And oh, by the way, I think my employer should incur all of the costs for such.” Again, the claimant had not testified (though he had submitted an affidavit in support of a claim for temporary benefits).

The judge found that a hearing was needed, but found that the claimant was a “multiple liar.” He had lied about being injured at his home, and in believing that his Medicaid coverage constituted “personal health insurance.” The judge stated that he was finding that the claimant had “jumped” and had “horse-played,” again without having heard the claimant’s testimony. Accordingly, the judge dismissed the case without prejudice, while stating that the claimant “should perhaps seriously consider saying: good-bye to [his] case.”

The judge then conditioned reinstatement of the case on a demonstration that the claimant was “honest.” He denied the claimant the chance to testify, saying he did not need “to hear the evidence.” At a subsequent hearing, the judge dismissed the case with prejudice. The claimant did not testify, since he had meanwhile filed a notice of appeal from the dismissal without prejudice. The judge rejected the claimant’s argument that the filing of the notice of appeal had divested him of jurisdiction. Respondent offered no witnesses either.

The judge found the facts against the claimant based on his affidavit, the parties’ exhibits, and the prior testimony of the two respondent witnesses. That resulted in a dismissal with prejudice. The claimant appealed, and today the Appellate Division resoundingly reversed.

Judge Vernoia noted that the standard of review was whether there was “sufficient credible evidence present in the record … with due regard also to the agency’s expertise” to support fact findings by a judge of compensation. Legal determinations, however, were to be reviewed de novo.

Judge Vernoia found it violative of due process for the judge to dismiss a case “where credibility of the witnesses is an issue and the underlying facts are disputed” without hearing the claimant’s testimony. That violated “fundamental fairness” and “the fundamental tenet of our Anglo-American system of justice.” That alone called for reversal.

But there was more. It was also error to make credibility findings based only on the claimant’s affidavit and the testimony of respondent’s witnesses who “did not witness the incident and could not describe the manner in which petitioner jumped.”

On top of all that, the judge wrongly “found petitioner was a liar and conditioned restoration of petitioner’s claim petition on proof petitioner is ‘honest.'” Neither respondent nor the panel found any authority for such an action, Judge Vernoia said. “There is no requirement a petitioner first establish he or she is honest before obtaining a hearing on a claim petition.”

Judge Vernoia concluded with this ringing language: “The record also shows the judge predetermined the merits of the case from the outset. Indeed, prior to hearing any testimony from petitioner, the judge claimed petitioner’s case did not rise to the level where consideration of the evidence was necessary. The proclamation is inconsistent with the fair and impartial consideration of evidence by a fair and impartial judge to which petitioner was entitled.” Accordingly, the panel reversed and remanded the matter to a different judge.

One point of particular interest to appellate practitioners: Judge Vernoia noted that the claimant’s argument that the filing of his notice of appeal from the dismissal without prejudice stripped the compensation judge was incorrect. “Although the filing of a notice of appeal generally deprives a trial court or administrative agency of jurisdiction, R[ule] 2:9-1(a), that is not the case where a notice of appeal is improvidently taken from an interlocutory order, which a dismissal without prejudice is.