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Motions for medical and temporary disability benefits are urgent matters that are treated as such by Judges of Compensation. Because injured workers are not receiving benefits, motions for medical and temporary disability benefits require all parties to work swiftly to prepare for court hearings. In the case of Capel v. Township of Randolph, A-1315-18T1 (App. Div. October 10, 2019), the employer never got a chance to argue its defense due to the failure to comply with administrative rules.
Mr. Capel filed a claim petition alleging an injury on May 21, 2018. He alleged injuries to his neck, back and left shoulder while lifting logs at work. Respondent filed an answer in which it did not deny an injury to the shoulder or back but did deny an injury to the neck.
Respondent sent petitioner to treat with Dr. Sayde, who opined that petitioner needed left shoulder surgery related to the accident. Respondent declined to approve the surgery and then sent petitioner for a second opinion with Dr. Montgomery, who also recommended left shoulder surgery. When surgery was declined, Capel filed a motion for medical and temporary disability benefits on October 9, 2018. The Motion sought approval of surgery, appropriate counsel fees, and sanctions for delay in paying temporary disability benefits.
The Judge of Compensation set the hearing for November 9, 2018. Under the administrative rules, respondent was required to file a response to the motion rebutting the allegations by October 30, 2018. The answering statement was filed late on November 8, 2018, the day before the hearing. In the responsive papers, respondent alleged that petitioner actually injured himself in his other job at Samaritan Inn, a homeless shelter where petitioner was living.
The Judge of Compensation evaluated the papers on both sides. The Judge noted the delay in timely filing of the answering statement to the motion as well as deficiencies in the opposing papers. The Judge of Compensation ruled in favor of petitioner based on the failure to meet the filing deadlines and the failure to file appropriate certifications. Counsel for the Township then sought reconsideration, which was also denied. The Judge of Compensation noted that instead of submitting certifications required by the rules, defense counsel submitted a two-page letter raising various arguments. In that letter defense counsel conceded that two doctors had recommended shoulder surgery. Defense counsel argued that petitioner lived for free at Samaritan Inn, a homeless shelter, in exchange for work, and counsel submitted handwritten time sheets for April 9, 2018 through June 23, 2018 of work allegedly performed at Samaritan Inn. The Judge observed that there was no explanation of how these materials were prepared, who prepared them and or whether they were admissible in evidence.
As part of the motion for reconsideration, defense counsel also submitted certifications of the claims adjuster and Scott Wagner, a co-worker in the Township’s Department of Public Works. The certification of the adjuster violated court rules by being unsigned. Neither document included the required language stating, “I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I may be subject to punishment.” See R. 1:4-4(b).
In addition, defense counsel submitted six unsigned statements by co-workers dated November 5, 2018. These statements also lacked the specific verification required for certifications in lieu of oath. For these reasons, the Judge of Compensation refused to vacate her prior order in favor of petitioner.
Respondent next appealed to the Appellate Division and argued that the Judge of Compensation should have relaxed the rules to allow respondent to go to trial on the motion. The Appellate Division held, “In the absence of any competent evidence in opposition to Capel’s claim that the left shoulder injury arose out of and in the course of his employment by the Township while lifting logs on May 21, 2018, there was no need to conduct a plenary hearing or basis to deny the MMT.”
In an interesting comment, the Appellate Division said that both N.J.A.C. 12:235-1.2 and Rule 1:1-2 permit relaxation of the rules to secure a just determination or to avoid injustice, but the Court said that movants who seek relaxation of the rules “bear a heavy burden.” In this case, the Court noted that the defense motion papers were “woefully late, one of the certifications was unsigned, both certifications lacked the required verification language, and the other submissions were deficient.” Finally, the Court commented that there is no rule in the Division of Workers’ Compensation regarding motions for reconsideration. Such motions are within the discretion of the court. The Court said:
R]econsideration should be limited to those cases ‘in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence. D’Atria v. D’Atria, 242 N. J. Super. 392, 401 (Ch. Div. 1990).
This case represents a wake-up call for employers, adjusters and defense lawyers on the importance of responding to motions for medical and temporary disability benefits in a timely fashion and submitting affidavits or certifications that meet the rules. In this case, one will never know whether the respondent had a valid basis to argue that the petitioner really injured himself at another job because the respondent lost the case before the trial ever started.
Answering statements for motions for medical and temporary disability must rebut the allegations of the claim in order for defense to get to trial on the motion. Submitting certifications or affidavits of individuals with particular knowledge that an injury did not occur at work is vitally important, but such certifications should be signed and contain proper verification language. The rules provide that employers have 30 days to respond to a motion for medical and temporary disability benefits if the motion is filed with the Claim Petition, but if the motion is filed after the Claim Petition has been filed, respondent has only 21 days to respond. When such motions are received, the defense team should begin work right away in preparing the defense to the motion. It takes time and effort to interview witnesses and obtain appropriate certifications.
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 email@example.com.