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In every workers’ compensation trial both parties believe passionately in their position, but in the end, one party will prevail and one will lose. Inevitably, the losing party will have to consider whether to file an appeal. It is important to understand the appellate process, particularly the types of cases that stand a good chance of reversal and those that do not.
Some workers’ compensation trials focus on purely legal issues where the facts are really not in dispute; other trials focus primarily on facts in dispute, and still others focus on medical causation issues. There are even cases with all three of these issues involved in the same trial.
Appeals in New Jersey from workers’ compensation go to the Appellate Division. The judges in the appellate division do not take testimony on their own. They do not hear witnesses, and they do not do independent research on medical causation issues. Their focus is on the trial record below, which consists of testimony at trial, evidence submitted at trial, legal briefs submitted at trial, and the formal decision of the Judge of Compensation. Appellate judges will defer often to the findings of the Judge of Compensation but not on questions of law.
So for starters one can say that when the issue on appeal is purely one of law, the parties know that the appellate judges are not going to defer to the Judge of Compensation. The appellate judges will review the facts in the record and apply their own understanding of the relevant law. They will read the statute and will read the relevant case law. Most successful appeals happen when the issue is a legal one involving interpretation of the law.
For example, imagine a case where an UBER driver is injured and files a workers’ compensation claim against UBER. The company denies that the driver is an employee and asserts that she is an independent contractor. The facts are not in dispute. The Judge of Compensation reviews the testimony and finds that the driver is an employee and not an independent contractor. The Appellate Division will not defer to the Judge of Compensation on that finding because this case involves interpretation of the law on employee status and independent contractor status. The appellate division will respect the findings of the Judge of Compensation on the facts of the case, but it will do its own assessment of the relevant law as applied to the facts.
In contrast, when a Judge of Compensation hears testimony from witnesses and finds that the witnesses for the petitioner were far more credible than the witnesses for the respondent, the appellate judges will defer to the findings of the Judge of Compensation. The Judge of Compensation is in the best position to assess credibility because he or she hears the actual witnesses, can see their reactions to questions, and can evaluate the way they responded to cross examination. Judges often ask their own questions of witnesses, and that level of engagement puts them in a very strong position to assess credibility. So if the sole argument in the appeal is that respondent believes its witnesses were more credible, one can say at the outset that the chances of reversal are extremely low. This type of appeal will seldom find any success.
Another category of appeal common in workers’ compensation involves the battle of the experts. There are many occupational disease claims, cancer trials for example, where the facts are not in dispute but the medical experts dominate the trial. Sometimes one expert is highly qualified and practices in the field at issue, and the other expert has far less qualifications. The less qualified expert may simply provide a generalized opinion that the cancer condition is work related without citing to valid studies or medical literature. These cases can be successfully appealed either on the theory that one expert was more credible based on qualifications or that the less qualified expert simply provided a “net opinion,” which is an opinion without any real scientific support for it.
When the issue pertains to the level of permanent partial disability, appellate judges will always defer to the expertise of the Judge of Compensation. For example, consider a case where a construction employee lifts a heavy beam and herniates two discs, requiring fusion surgery. The Judge of Compensation considers the impact of the injury on work and non-work aspects of the petitioner’s life, and the judge finds a disability of 45% permanent partial disability. The respondent’s IME physician had a relatively low estimate and respondent expected an award of 35% permanent partial disability. The difference between 35% and 45% is around $60,000, so the respondent appeals. This sort of appeal almost always has a very low percentage of reversal because the appellate division judges defer to the skill and expertise of the Judge of Compensation in assessing permanency.
As a rule appeals based solely on the level of disability are ill-advised. It is a rare case where such a reversal will occur. For example, an appeal might be successful if the judge in the above example in finding 45% permanent partial disability said: “I found 45% permanent partial disability because that is what I normally find for two disc fusion surgery.” Respondent could argue that the judge used a pre-set percentage in his or her mind and applied it to this case, as opposed to studying the individualized facts of the case and the impact of the accident on this claimant’s work and non-work life. New Jersey Judges of Compensation understand that they need to consider each case on its own merits, so this type of appeal seldom gets filed.
Perhaps the most common argument on appeal is that there is insufficient credible evidence to support the findings of the Judge of Compensation. This sort of an appeal can be successful in the circumstance where the Judge of Compensation makes a finding that is truly unsupported by the evidence. But it is a tough argument because the appellate judges must be convinced that there is really no sufficient credible evidence to support the finding below.
Here is a simple example of where this argument could be made. Consider a case where the employer has store security footage showing that the alleged injured employee did not fall at 2 p.m. in aisle six of the grocery store as is alleged in testimony. The footage is unchallenged as to authenticity and it shows that the employee was never in that aisle at that time. The employee maintains that he or she fell definitely in aisle six by the Kelloggs’ cereal boxes at 2 p.m. The petitioner produces a witness who says that she believes that the petitioner may have gone in that aisle that day, but the witness did not see the actual fall.
The Judge of Compensation finds petitioner’s witness more credible and also finds that petitioner may have been mistaken about the aisle and probably fell in aisle five because there were some Kelloggs’ products also in aisle five. But petitioner never claimed to be in aisle five. Respondent will likely win on appeal by arguing there is insufficient credible evidence to support the determination of the Judge of Compensation because the best evidence would be the security footage showing that the injury could not have happened as alleged in aisle six at 2 p.m.
Estimating chances on appeal is a difficult thing to do, and there are many factors to consider. The record has to be solid, meaning that all the evidence that the appealing party wanted to get in to evidence actually did get in, and the appellate brief and argument must be strong. It is also very important to remember that the appellate judges do not hear arguments on appeal that were never raised in the trial before the Judge of Compensation. If there is a valid argument on the independent contractor defense, that argument must be made at trial, not for the first time on appeal.
For this reason, both parties should submit detailed legal briefs explaining their position in the trial below, or at least make closing arguments to the Judge of Compensation detailing each point at issue. This is the only way that the Judge of Compensation can know the arguments. Judges in our system do not have law clerks and are extremely busy handling large lists every day, so it is incumbent on counsel to raise all the issues either in legal briefs or closing arguments – or both. Counsel should then be able to provide to their clients solid guidance on the potential for success on appeal.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.