Last October, Jon Gelman published a post about workers' compensation in New Jersey, The Inherent Judicial Power of Judges of Compensation. Jon is an attorney representing injured workers, but also a prolific writer, blogger, and student of workers' compensation. I found this particular post intriguing because it suggests a significant procedural difference between Florida and New Jersey and the role of trial Judges.
In Conferring Jurisdiction (July 2017), I described the lack of inherent authority vested in Florida Judges of Compensation Claims. Florida workers' compensation judges are not "courts" and are authorized only as stated in the statute. "Inherent" authority in Florida is power that exists merely because the office itself exists. The constitutional courts in Florida have inherent authority to act as courts act and to do what is necessary for a court to be a court, but workers' compensation judges do not.
It was likely that the headline of Mr. Gelman's article, and the use of "inherent" therefore caught my attention. He explains that in New Jersey compensation judges have a wider discretion, a greater authority to act in adjudicating a case.
In Elias v. Life Care Services, Docket No. A-4867-15T3 2017 WL 4530879 (Decided October 11, 2017), a worker suffered a back injury in 2010. Medical care was provided, and an impairment rating was assigned. For more on impairment ratings, see MMI and other Artificial and Arbitrary Distinctions (May 2016). In 2012, the case settled, with compensation for the permanent impairment, and "functional loss." Ongoing back pain affected the employee's ability to work, and she later moved to reopen her claim. That is another distinction, in Florida "settlement" is apparently more final than in New Jersey.
In Elias, after a decompression and fusion surgery, testing established permanent lifting restrictions were appropriate. The physician, however, noted that the patient performed the functional evaluation "with significant submaximal effort." Another doctor concluded that the worker had decreased spinal range of motion, and a "material lessening" of the employee's "working ability." A third doctor concluded the fusion was not "complete" and disagreed that the employee had reached maximum medical improvement. A fundamental truth in workers' compensation is that doctors often disagree with one another.
These various disagreements of opinion were presented to a New Jersey compensation judge. In most proceedings, the parties are obligated to gather, organize, and present the evidence that either proves their respective allegations or disprove the allegations of her/his opponent. I have many times heard judges lament perceptions of incomplete or even incompetent efforts in that regard, leaving the judge to make the best decision possible from the presented evidence and its flaws or omissions.
In Elias, the Court noted that the trial judge "was dissatisfied with the clarity of the medical evidence provided on the papers." The trial judge therefore "asked that Dr. Cohen be made available to testify via a telephonic conference." From the appellate opinion, it is not clear if some flaw was discerned in Dr. Cohen's conclusions, or if the judge sought further explanation, or answers to additional questions. However, Dr. Cohen did testify, and the employer did not object to his appearing as a witness pursuant to the judge's request.
The trial judge then issued an order awarding workers' compensation benefits. In doing so, the judge rejected the opinion(s) that the employee had reached maximum medical improvement and relied instead upon Dr. Cohen's testimony and conclusions.
The employer appealed and argued that "it was improper" for the judge "to call Dr. Cohen sua sponte as a witness to help Elias bolster her case." The Court noted that conclusions of credibility of witnesses are a decision for the trial judge. This is because the trial judge is in a position "to observe and hear the witnesses and to evaluate their credibility, and to the judge's expertise in the field of workers' compensation."
As an interesting aside, the Court also reminded that "it must be kept in mind that judges of compensation are regarded as experts" in New Jersey. As an aside, there was a time when Florida workers' compensation judges were afforded such deference by the Florida Supreme Court. Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351 (Fla. 1987)("We are convinced that in the ordinary case, deputy commissioners, by reason of their experience, are well qualified to determine the reasonableness of attorney's fees without the opinion of an expert on the subject"). However, the Florida First District Court has more recently expressed its disagreement with that deference.
The New Jersey appellate court concluded that the trial judge's conclusions "were legally sound and are amply supported by the record." Thus, the trial judge's decision was upheld. However, the Court wrote this opinion to "briefly comment on a few of the main points presented by" the employer. One of the more critical points is the trial judge's decision to call a witness, Dr. Cohen.
The appellate court stressed that the judge decided to supplement the record by calling this witness. And, the employer "failed to object." The Court explained that appellate courts do not address issues that were not "raised below." In other words, the appellate court will not review an "error" unless there has been an objection at trial. An objection is made by a party, like the employer, to alert the trial judge to the reason the party feels some action (calling a witness) is improper or unduly prejudicial. Objections are critical to the record in any litigation.
After such an objection, the trial judge may agree and therefore elect not to take that action or not allow some questions, thus preventing the alleged "error." When a party does not object and does not point out the prejudice or harm, the judge is not afforded this opportunity to eliminate or ameliorate that harm. The appellate court concluded that it should not review an "error" that was not pointed out to the trial judge. This is a common sentiment among appellate courts.
Thus, the Court clarified the election to call Dr. Cohen was not an error upon which it would reverse the trial judge. Having thus concluded not to reverse the trial judge, concluding that the issue was not properly "preserved," the Court then nonetheless volunteered how it would have decided that question if it had been properly raised.
The Court said that "even if we did reach the issue," the Court would not reverse. The Court said that "the judge had clear authority and justification" to call the doctor to testify. The Court reminded that in New Jersey compensation judges have "inherent power" to "call and examine expert witnesses." The judge need only decide that such a witness, "in the judge's sound judgment," is "necessary for a proper determination of the case." (Citations omitted).
There is a final point in Elias that bears mentioning. Time and again, I have written about the value of precedent. In America, we collectively embrace the concept dubbed "stare decisis." See A Kentucky Constitutional Decision (April 2017), Kentucky, Stare Decisis and Non Compliance Standards (July 2017), and Stare Decisis, Livingood, Goodgame and Westphal (October 2015). Suffice it to say I am a fan of stare decisis. In that regard it is always disappointing to see an appellate court publish an opinion with a warning like this one in Elias:
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.
In other words, the Court says no transparency or predictability may come from this decision. Admittedly, the Court made no change to the law in Elias. The Court merely reiterated what other cases had held regarding inherent authority, calling of witnesses, and application of the New Jersey benefit statutes.
However, if there was nothing in Elias worth preserving, and explaining, for the benefit of other future litigants, judges, and courts, then why take the time to write the opinion? The Court could more simply have merely "affirmed" the trial judge. And, conversely, if there is value in the Court writing this explanation opinion, then why not allow others to be educated and benefit from it? The existence of the opinion frankly seems contradictory to the instruction not to use it.
Elias does have the benefit of highlighting the differences that state statutes create, specifically as to the inherent authority of workers' compensation judges. It is also a poignant reminder that litigants themselves must protect their records, and timely, competent, evidentiary objections are critical for that. Finally, it raises yet again the curiosity of courts limiting the application of their decisions by fiat. All are points worthy of discussion.
