State News : New Jersey

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New Jersey



Can a Judge of Compensation order a respondent to pay temporary disability benefits without a motion being filed in the first place?  The answer is no according to the decision in Munch v. Atlantic Health System, A-1265-16T1 (App. Div. December 21, 2017).

Petitioner, Dana Munch, worked as a paramedic for Atlantic Health System (AHS) and witnessed the death of a child during the course of her employment on October 12, 2014. She received authorized treatment and temporary disability benefits from November 14, 2014 to January 14, 2015.  She then returned to work.

On June 18, 2015 petitioner had a hand injury at work and received temporary disability benefits from June 22, 2015 through April 21, 2016.  During this period of time she began treating with Dr. Nayak, a psychologist, for a psychiatric reaction to the October 12, 2014 incident noted above.  Dr. Nayak treated petitioner from January 2016 through June 2016.

A key fact in this case is that petitioner failed to return to work in June 2016 and was therefore terminated.

On August 16, 2016, petitioner filed a claim petition for psychiatric injuries related to the incident on October 12, 2014.  AHS accepted the case as compensable.  Petitioner did not request temporary disability benefits, nor did she file a motion for temporary disability benefits.

The first listing of the case occurred on November 2, 2016.  Counsel for petitioner presented the Judge of Compensation with a report from Dr. Nayak, the psychologist, dated October 28, 2016.  The doctor said that petitioner suffered from post traumatic stress disorder related to the October 12, 2014 incident.  He added, “Ms. Munch has not been able to return to work for the duration of time that I have been treating her since January 18, 2016.  Furthermore, I believe within a reasonable degree of probability based on my expertise as a clinical psychologist that in Ms. Munch’s current psychological state she will not be able to return to her old job as a paramedic at the present time.”

After reading this letter, the Judge of Compenstion indicated that he was inclined to enter an order for payment of temporary disability benefits.  Capehart Scatchard represented AHS and argued that there had been no motion filed and no request for temporary disability benefits from petitioner.  Further, defense counsel argued that petitioner had no job and therefore no wage loss to replace.  Moreover, counsel argued that Dr. Nayak failed to explain why petitioner was able to return to work after the October 12, 2014 incident up until June 2015 when she injured her hand but now could not work.

The Judge of Compensation allowed oral arguments on the issue of temporary disability benefits at the same first court listing but denied a request by AHS for a three week adjournment.    The Judge then entered an order for temporary disability benefits without requiring a motion for medical and temporary disability benefits to be filed. AHS appealed.

The Appellate Division reviewed the administrative rules that require a motion to be filed for an order to be entered for temporary disability benefits.  The Court said, “Petitioner did not undertake any of the steps pursuant to N.J.A.C. 12:235-3.2 to support an award of temporary disability benefits.  Thus, Atlantic had no opportunity to respond to or oppose an award of benefits.”  The Court added, “The Workers’ Compensation judge did not afford Atlantic an opportunity to challenge the legal or factual basis for awarding benefits to petitioner despite Atlantic’s request for a brief adjournment to submit such opposition.  Moreover, there were no depositions, sworn statement, or documentary evidence (other than Dr. Nayak’s letter) submitted in support of petitioner’s claim.”

The court then cited the basic principle in law regarding due process. “In accordance with due process principles, the opportunity to be heard, ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.’”  Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986).

While the technical rules of evidence may be relaxed in workers’ compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights. Id.At 95-96.  Atlantic was not given the opportunity to proffer any medical records or reports, call witnesses, or submit any evidence in opposition to petitioner’s claim.  Based on the foregoing, we find that Atlantic was denied a meaningful opportunity to be heard in accordance with the due process principles.

The Appellate Division also concluded that the rule applied in Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 432 (App. Div. 2006) requiring claimants to prove that they were both available and willing to work and would have been working if not for the disability.  The Court noted that petitioner had been terminated well before the order was entered in the first listing of the case.  The Court also observed that petitioner had in fact returned to work for six months after the October 12, 2014 incident, a fact which Dr. Nayak seemed unaware of.  Further, the petitioner herself never sought temporary disability benefits nor filed  a motion for benefits.  The first time there was any mention of petitioner requiring temporary disability benefits was when her attorney produced the report from Dr. Nayak in court, several months after petitioner had been terminated for not returning to work.

Dr. Nayak’s letter did not address petitioner’s ability to work in a different capacity or perform light duty assignments.  Dr. Nayak did not testify before the Workers’ Compensation judge or provide an affidavit in support of petitioner’s claimed disability.  Dr. Nayak’s letter does not explain how petitioner was able to return to work for six months after the October 2014 incident but was unable to return to work in June 2016.  More importantly, petitioner did not testify or present evidence that she suffered a wage loss as a result of her disability because she was available and willing to work and would have been working if not for the disability.

 The Appellate Division concluded that the petitioner failed to demonstrate any entitlement to temporary disability benefits.  Therefore the Court reversed the decision of the Judge of Compensation.   This case is significant because it emphasizes how important it is to allow due process to the parties in a workers’ compensation claim.  Further, it underscores the solid principles outlined in the Cunningham case.

This case was successfully handled by the Capehart team of Stephen Fannon, Esq. and John Pszwaro, Esq., who successfully argued before the Appellate Division.



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