DANA MUNCH v. ATLANTIC HEALTH SYSTEM
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1265-16T1
DANA MUNCH,
Petitioner-Respondent,
v.
ATLANTIC HEALTH SYSTEM,
Respondent-Appellant.
Argued December 5, 2017 - Decided December 21, 2017
Before Judges Hoffman and Mayer.
On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2016-20578.
John W. Pszwaro argued the cause for appellant
(Capehart & Scatchard, PA, attorneys; Stephen
T. Fannon, of counsel; John W. Pszwaro, on the
brief).
Kevin T. Kutyla argued the cause for
respondent.
PER CURIAM
Respondent Atlantic Health System (Atlantic) appeals from a
November 2, 2016 order of the Division of Workers' Compensation
awarding temporary disability benefits to petitioner Dana Munch.
Atlantic contends that the Workers' Compensation judge mistakenly
exercised his discretion and awarded benefits based on the limited
record before the court. We agree and reverse.
Petitioner was a paramedic. On October 12, 2014, while
working as a lead paramedic, petitioner witnessed the death of a
child. She received authorized treatment and temporary disability
benefits from November 14, 2014 to January 14, 2015, and then
returned to work.
On June 18, 2015, petitioner suffered a hand injury at work.
She was unable to work due to her injury, and Atlantic paid
temporary disability benefits from June 22, 2015 to April 21,
2016. On January 18, 2016, petitioner began treating with Dr.
Sangeetha Nayak, a psychologist, for a psychiatric injury related
to the October 12, 2014 incident. Dr. Nayak treated petitioner
from January 2016 through June 2016. Petitioner failed to return
to work in June 2016 and was terminated.
On August 11, 2016, petitioner filed a claim petition
alleging she suffered permanent psychiatric injury as a result of
the October 12, 2014 incident. On September 1, 2016, Atlantic
filed an answer to the claim petition and accepted that
petitioner's injury was compensable. Petitioner did not file a
motion for medical and/or temporary disability benefits in
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connection with her claim. Nor did petitioner notify Atlantic
that she intended to seek temporary disability benefits.
On November 2, 2016, the matter was listed for an initial
pre-trial hearing before a judge of the Workers' Compensation
court. While in the judge's chambers, petitioner's attorney
submitted a letter written to counsel by Dr. Nayak dated October
28, 2016. The letter, which was subsequently read into the record
by the judge, stated:
I am writing this letter in response to your
request for my opinion on Ms. Dana Munch's
ability to return to work. Ms. Munch's
diagnosis of [p]ost traumatic stress disorder
which occurred secondary to her work related
trauma on 10/12/14 has resulted in continued
symptoms of anxiety and depression that are
being addressed in psychological and
psychiatric treatment.
Due to these symptoms[,] Ms. Munch has not
been able to return to work for the duration
of the 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.
Ms. Munch's ability to return to work will be
contingent on the progress she makes with
psychological and psychiatric treatment. At
the present time she needs continued
psychiatric and psychological treatment.
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After reading this letter, the judge indicated that he was inclined
to enter an order requiring Atlantic to provide temporary
disability benefits to petitioner effective immediately.
When the judge went on the record, Atlantic objected to
awarding temporary disability benefits to petitioner on several
grounds. First, Atlantic's attorney noted that prior to the
October 2016 letter, Dr. Nayak never indicated petitioner was
unable to work due to her psychiatric injury, despite treating
petitioner since January 2016. Second, Atlantic argued that Dr.
Nayak's letter did not explain why petitioner was able to return
to work for six months after witnessing the death of a child, but
was unable to work in June 2016 after her wrist injury. Third,
Atlantic contended that it was deprived of an opportunity to
investigate petitioner's entitlement to benefits as it received
Dr. Nayak's letter only a few hours before the judge awarded
temporary disability benefits. Fourth, Atlantic noted that
petitioner had not filed a motion for temporary disability
benefits. Fifth, Atlantic claimed petitioner had not proven an
actual wage loss.
After placing its objections to any award of temporary
disability benefits on the record, Atlantic asked the judge for
an opportunity to investigate petitioner's entitlement to benefits
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and requested a one-cycle adjournment. Atlantic's request was
denied by the judge without explanation.
The judge then held oral argument on the award of temporary
disability benefits to petitioner, although no motion was pending.
Based upon Dr. Nayak's opinion that petitioner could not return
to work, the judge concluded petitioner was entitled to temporary
disability benefits and ordered Atlantic to pay temporary
disability benefits effective immediately.
Our review of a Worker's Compensation Division award is
limited to examining "whether the findings made could reasonably
have been reached on sufficient credible evidence present in the
record, considering the proofs as a whole, with due regard to the
opportunity of the one who heard the witnesses to judge of their
credibility." Lindquist v. City of Jersey City Fire Dep't,
175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros.,
44 N.J.
589, 599 (1965)). We accord "substantial deference" to such
factual findings. Bellino v. Verizon Wireless,
435 N.J. Super.
85, 94 (App. Div. 2014). We will only disturb a Workers'
Compensation judge's decision if it is "manifestly unsupported by
or inconsistent with competent[,] relevant and reasonably credible
evidence as to offend the interests of justice." Lindquist,
175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision,
278 N.J.
Super. 275, 282 (App. Div. 1994)).
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The Division of Workers' Compensation regulation governing
motions for temporary disability are found at N.J.A.C. 12:235-1.1
to -14.2. This rule requires a petitioner who seeks temporary
disability benefits to file a motion on notice to respondent. In
the motion, petitioner is required to evidence that she "is
currently temporarily totally disabled and/or in need of current
medical treatment." N.J.A.C. 12:235-3.2(a). The notice of motion
shall contain a detailed account of compensable time lost, with
supporting affidavits or certifications by petitioner or
petitioner's attorney. N.J.A.C. 12:235-3.2(b). Respondent has
twenty-one days to respond to the motion. N.J.A.C. 12:235-3.2(d).
The Division of Workers' Compensation then lists petitioner's
motion for a hearing before a Judge of Compensation within thirty
days of the filing of the motion. N.J.A.C. 12:235-3.2(e).
Petitioner never filed a motion for medical or temporary
disability benefits. 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 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
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depositions, sworn statements, or documentary evidence (other than
Dr. Nayak's letter) submitted in support of petitioner's claim.
Nor was there any opportunity for Atlantic to cross-examine Dr.
Nayak or submit its own medical evidence. Atlantic contends that
granting an award to petitioner without affording it an opportunity
to be heard and present countervailing evidence was a mistaken
exercise of judicial discretion.
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 work[ers'] 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 due process principles.
Petitioner also failed to demonstrate her entitlement to
temporary disability benefits. To receive an award of temporary
disability benefits, petitioner bears the burden of proving a wage
7 A-1265-16T1
loss. See Cunningham v. Atl. States Cast Iron Pipe Co.,
386 N.J.
Super. 423, 432 (App. Div. 2006) (requiring workers' compensation
claimants to prove that they were both available and willing to
work and would have been working if not for the disability).
Here, petitioner was placed out of work from November 14,
2014 to January 14, 2015 as a result of the October 12, 2014
incident. She then returned to work for six months. On June 18,
2015, petitioner was again placed out of work for a wrist injury.
During the period of time petitioner was out of work due to her
wrist injury, she began treating with Dr. Nayak for her psychiatric
condition related to the October 12, 2014 incident. Petitioner
never mentioned her psychiatric condition or requested temporary
benefits during this time. On April 21, 2016, petitioner reached
maximum medical improvement for her wrist injury. However,
petitioner did not return to work and was terminated on June 21,
2016. From the time petitioner reached maximum medical improvement
for her wrist injury and the date she was terminated, petitioner
did not request temporary benefits for her psychological injury,
and no physician suggested that she was unable to work based on
her psychological condition.
The first time petitioner claimed that she was unable to work
due to a psychological condition was in the letter from Dr. Nayak
dated October 28, 2016, four months after petitioner was
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terminated. 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.
Under these circumstances, we agree that the award of
temporary benefits to petitioner violated Atlantic's procedural
due process guarantees. We also find that petitioner did not meet
her burden of demonstrating entitlement to an award of temporary
disability benefits. The award of temporary disability benefits
to petitioner was unsupported by relevant and reasonably credible
evidence as there were no fact or expert witnesses or evidentiary
documents presented on the record during the November 2, 2016
hearing.
Reversed and remanded. We do not retain jurisdiction.
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