NESTOR MORAN v. COSMETIC ESSENCE, LLC

NOT FOR PUBLICATION WITHOUT THE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.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2588-16T1

NESTOR MORAN,

           Petitioner-Respondent,

     v.

COSMETIC ESSENCE, LLC,

          Respondent-Appellant.
___________________________________________________

           Argued February 13, 2018 – Decided March 14, 2018

           Before Judges Fisher and Sumners.

           On appeal from the Department of Labor and
           Workforce Development, Division of Workers'
           Compensation, Claim Petition No. 2016-8827.

           Melissa Bialos Floyd argued the cause for
           appellant   (Capehart   &  Scatchard,   PA,
           attorneys; John H. Geaney, of counsel; Dana
           M. Gayeski, on the brief).

           Eliot Skolnick argued the cause for respondent
           (Law Offices of Carmen Mendiola, attorneys;
           Eliot Skolnick, on the brief).

PER CURIAM

     Cosmetic Essence, LLC, appeals from an order entered in favor

of its former employee, Nestor Moran, in this workers' compensation
action. The order memorialized, in part, the judge's findings –

rendered at the conclusion of a trial – that Moran suffered a

work-related injury and, in part, Moran's entitlement to temporary

disability benefits. We affirm the first part because the judge's

findings of fact warrant our deference, but we vacate the second

part and remand for further proceedings because the judge's other

determinations exceeded the trial's scope.

       Specifically, as to the first part, Cosmetic argues the

judge's findings are unworthy of deference, claiming1:

            I. THE TRIAL COURT IGNORED SUBSTANTIAL ISSUES
            OF CREDIBIITY AND IMPROPERLY FOUND THAT A
            COMPENSABLE    ACCIDENT    HAPPENED,    WHILE
            DISMISSING [COSMETIC'S] CROSS MOTIONS.

            II. THE JUDGE OF COMPENSATION'S DECISION THAT
            [MORAN] DID NOT VIOLATE N.J.S.A. 34:15-57.4[2]
            SHOULD BE OVERTURNED BECAUSE THE PROOFS
            SUBMITTED AND TESTIMONY PRESENTED SHOW [MORAN]
            COMMITTED FRAUD.

As to the second part, Cosmetic contends an award of any benefits

was premature at best because the trial was bifurcated and limited

to whether a work-related injury occurred and, if such an injury




1
    We have renumbered Cosmetic's arguments.
2
  Cosmetic's fraud claim is based on the fact that it is a fourth-
degree crime for a person to make "a false or misleading statement,
representation or submission concerning any fact that is material
to [a workers' compensation claim] for the purpose of wrongfully
obtaining the benefits." 
N.J.S.A. 34:15-57.4(a).

                                  2                          A-2588-16T1
did not occur, whether Moran committed fraud by pursuing the

matter; Cosmetic, in this regard, argues:

            III. [MORAN] HAS NOT PROVEN A WAGE LOSS THAT
            WOULD ENTITLE HIM TO TEMPORARY DISABILITY
            BENEFITS.

            IV. THE LOWER COURT ABANDONED ALL NOTIONS OF
            FUNDAMENTAL   FAIRNESS   AND   CONSTITUTIONAL
            GUARANTEES OF PROCEDURAL DUE PROCESS BY
            RELYING ON EVIDENCE IT SECURED ON ITS OWN AND
            NOT BIFURCATING THE TRIAL, AS AGREED BY THE
            PARTIES.

In the two sections of this opinion that follow, we explain (1)

why   we   reject   Cosmetic's   Points   I   and   II,   and   (2)   why,   in

responding to Points III and IV, we agree the award of benefits

exceeded the boundaries of the bifurcation agreement, deprived

Cosmetic of a fair opportunity to address those issues, and, thus,

warrants a remand for further proceedings.


                                     I

                                     A

      It has long been recognized that an appellate court's review

of a compensation judge's findings is limited. The Court recognized

in Close v. Kordulak Bros., 
44 N.J. 589, 599 (1965), that the

appellate standard of review is the same as that applied "in any

nonjury case." That is, an appellate court must consider whether

the judge's findings "'could reasonably have been reached on

sufficient credible evidence present in the record' . . . with due

                                     3                                A-2588-16T1
regard to" the judge's opportunity to hear the witnesses and "judge

. . . their credibility." Ibid. (quoting State v. Johnson, 
42 N.J.
 146, 162 (1964)). Consequently, "[d]eference must be accorded the

[compensation judge's] factual findings and legal determinations

. . . unless they are 'manifestly unsupported by or inconsistent

with competent relevant and reasonably credible evidence as to

offend the interests of justice.'" Lindquist v. City of Jersey

City Fire Dep't, 
175 N.J. 244, 262 (2003) (quoting Rova Farms

Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J. 474, 484 (1974)). The

Court has not altered its view of the standard of review since.

See Renner v. AT & T., 
218 N.J. 435, 448 (2014); Hersh v. County

of Morris, 
217 N.J. 236, 242-43 (2014); Seger v. O.A. Peterson

Constr., Co., 
182 N.J. 156, 163-64 (2004).

      A    workers'   compensation   petitioner    must      demonstrate    the

complained-of injury occurred during the course of employment.

Lindquist, 
175 N.J. at 263. Judge King described this burden as

focusing on "probabilit[ies] rather than certaint[ies]" and that

the burden is satisfied "if the evidence preponderates in favor

of   the   tendered   hypothesis."   Harbatuk     v.   S&S    Furniture    Sys.

Insulation, 
211 N.J. Super. 614, 620 (App. Div. 1986). This does

not mean any "guess or conjecture" will suffice; the evidence

"must be such as to lead a reasonably cautious mind to the given

conclusion." Lister v. J.B. Eurell Co., 
234 N.J. Super. 64, 72

                                     4                                A-2588-16T1
(App. Div. 1989); see also Perez v. Monmouth Cable Vision, 
278 N.J. Super. 275, 282 (App. Div. 1994).


                                B

     Moran's contention that he was injured during the course of

his employment was hotly contested. He claimed he was injured

when, at approximately 2:30 p.m., on Thursday, January 28, 2016,

while lifting a heavy box at Cosmetic's place of business, he felt

a "pop" in his back. Moran did not then report the incident to

Cosmetic because his back didn't bother him until after he left

work and arrived home. And he did not communicate about it with

Cosmetic the next day because he was not scheduled to work that

day. Instead, in a manner he claims comported with a course of

conduct of approximately twenty years working with Cosmetic, Moran

texted his team leader, Rafael Perez,3 at approximately 6:35 a.m.,

on Monday, February 1, 2016. That text message, as well as those

sent to Perez on February 2, 3 and 4, were admitted into evidence.4


3
 The evidence supports the judge's finding that because Cosmetic's
warehouse operations manager did not speak Spanish and because
Moran's English was limited, Moran was instructed to communicate
with Perez on such matters.
4
  The copies of the text messages in the record are written in
Spanish. We asked at oral argument whether English versions were
admitted in evidence, or contained in the appellate record, and
were told they were not, probably because the judge was fluent in
Spanish and did not require English versions. Notwithstanding the


                                5                           A-2588-16T1
The parties also did not dispute: that Moran telephoned Cosmetic's

warehouse operations manager that week, as well; that his call was

not answered; that Moran left a voicemail; and that this call was

not returned.5 Moran also sent Perez another text message, which

was admitted into evidence, on Tuesday, February 9, advising he

would return to work on Thursday, February 11.

     Moran did in fact return to work on February 11. He then met

with the plant's general manager and provided his doctor's notes

in accordance with the advice previously relayed by Perez. The

general manager, however, told Moran he had been absent too often

and terminated his employment.

     At trial, the judge heard Moran's testimony as well as the

testimony   of   Cosmetic's   plant       manager,   warehouse   operations



problems this causes for our review of the record, we gather from
the text messages and the lack of any controversy about their
content that Moran informed Perez he had back pains, was seeing a
doctor, and was adhering to his doctor's advice about his return
to work. The point Cosmetic would have us draw from all this is
that while it may be true Moran advised Cosmetics of his back
problems, he never attributed the cause to something occurring at
work. The judge's findings about these texts are in accord with
that proposition; she found the text messages timely informed
Cosmetic of Moran's absences and the causes of the absences but
they did not convey that his back problems were caused by a work-
related injury.
5
 Cosmetic did not offer this voicemail – assuming it still existed
– at trial. There was no dispute, however, that Moran did not
convey in the voicemail that he was injured while working at
Cosmetic's plant on January 28.

                                      6                             A-2588-16T1
manager, and human resources manager. The judge determined, for

reasons thoroughly discussed in a written opinion, which was later

amplified   by   another   written   opinion,    that   Moran      was     "more

credible"   than   Cosmetic's   witnesses.      We   have   been    given       no

principled reason to question that credibility finding; the judge

observed the witnesses as they testified, not us.

     Cosmetic's contention that Moran did not suffer a work-

related injury seems to revolve around two things. One, Moran did

not report in his various messages in the days following January

28 that he was hurt at work. And two, that Moran's doctor made a

note in his records that Moran stated he "was shoveling snow" when

the back pain developed.

     As to the first, the judge correctly recognized that Moran

reported his inability to appear for work in a manner consistent

with directions previously given to him by the warehouse operations

manager. It is true Moran did not specifically state in his many

early communications that the injury was work-related but, as

Moran testified, he advised the general manager of the genesis of

the injury when he was next at the plant on February 11. Moran

recounted that the general manager would "not listen" to him,

accused him of lying, and reproached Moran for not informing the

warehouse operations manager. When Moran attempted to show the

general manager the text messages he sent to Perez, the general

                                     7                                   A-2588-16T1
manager got "very upset" and had Moran escorted from the building.

The judge's findings in this regard are supported by Moran's

testimony, which the judge found more credible than the testimony

of the other witnesses. We have been presented with no valid reason

for rejecting the judge's determinations on this point. Indeed,

having closely examined the trial transcript, it appears Cosmetic

was more intent on proving it had a rational reason for terminating

Moran's employment – a question having no bearing on whether Moran

sustained or communicated his sustaining of a work-related injury

to Cosmetic. Even if Moran imperfectly informed Cosmetic about the

injury, it does not necessarily follow – as Cosmetic seems to

contend – that the work-related injury must not have occurred.

     The second prong of Cosmetic's attack concerns the doctor's

notation in his file that Moran "was shoveling snow and developed

severe low back pain with right leg radiation." Cosmetic waves

this note about as if it were a smoking gun compelling a rejection

of the judge's findings. But Moran testified – and credibly in the

judge's eyes – that he and the doctor spoke of many things,

including the severe blizzard that hit the northeast between

January 22 and 24, 2016. Moran asserted that he never told the

doctor that snow-shoveling was the cause of his injury. And

Cosmetic never called the doctor to testify about the conversation;

instead, Cosmetic was apparently content to rely on the doctor's

                                8                           A-2588-16T1
otherwise unexplained note. The judge was entitled to give the

doctor's note whatever weight she deemed appropriate, particularly

when she was not provided with a further explanation that may have

come from the doctor's testimony. Common sense and human nature

entitled the judge to assume that the severity of the blizzard

days earlier was something Moran and the doctor spoke about and

that such a conversation may have been conflated by the doctor

when he memorialized in his file the genesis of Moran's complaints

and discomfort.

     Although   the   evidence   presented   genuine   disputes     about

whether a work-related injury occurred, those were questions for

the judge to answer based upon her credibility findings and the

weight she chose to attribute to the various pieces of credible

evidence received. Our role, as noted earlier, is more restricted.

We are simply to determine whether a "reasonably cautious mind"

could come to the conclusion the judge reached. Lister, 
234 N.J.

Super. at 74. Having thoroughly examined the factual record, and

having considered the judge's meticulous findings on the contested

questions presented, we conclude the judge was entitled to find

from the credible evidence that Moran was injured on January 28,

2016, while lifting a box at Cosmetic's place of business. In




                                   9                              A-2588-16T1
deferring to the judge's findings, we affirm that aspect of the

order under review.6


                               II

     The second part of the appeal need not long detain us. The

parties agreed, with the judge's acquiescence, to bifurcate the

issues so the judge might first determine whether a compensable

injury occurred before the parties and the court invested time and

energy on other issues not otherwise necessary to reach if the

judge answered the preliminary question in Cosmetic's favor.

     Despite bifurcation,7 the judge found that Moran was entitled

to temporary disability benefits and appears to have made other

findings about the nature of the injury. These other issues were

decided without warning and deprived Cosmetic of an opportunity



6
 We have not picked every leaf from the tree. Cosmetic has alluded
to numerous other aspects about the factual record – developed
over the course of four days in the compensation court – in
attempting to persuade us that Moran fabricated the circumstances
surrounding his injury and that the judge's findings to the
contrary should not be sustained. We have focused only on the
testimony and assertions that seem to have played the greater or
more troubling roles in this dispute. We find insufficient merit
in any of Cosmetic's other contentions in its Points I and II to
warrant further discussion in a written opinion. R. 2:11-
3(e)(1)(E).
7
  The actual bifurcation boundaries were never clearly placed on
the record. Counsel represent that the terms of bifurcation
developed during in-chambers discussions that never quite made it
to open court.

                               10                          A-2588-16T1
to present evidence or to confront the evidence upon which the

judge relied. Because the judge mistakenly exceeded the limits of

the bifurcation agreement, we vacate those parts of the order

under review that granted temporary disability benefits and other

relief to Moran, and we remand those      proceedings that would

naturally have followed the determination that Moran sustained a

work-related injury.

     We lastly consider Cosmetic's argument in its Point IV that

the judge sought out and relied on evidence the judge herself

procured from outside sources. The judge in fact acknowledged in

her written decision that, on her "own volition," she "contacted

the State and was advised" that Moran "had been paid temporary

disability benefits from" January 29, 2016, to July 5, 2016; the

judge also determined, without an opportunity for the parties to

respond, there existed "a lien of [$]4,292.08" for those temporary

disability benefits.

     Judges should not conduct their own factual investigation,

let alone do so without notice and an opportunity for the parties

to be heard. See Lazovitz v. Bd. of Adjustment, Berkeley Heights,


213 N.J. Super. 376, 381-82 (App. Div. 1986); Amadeo v. Amadeo,


64 N.J. Super. 417, 424 (App. Div. 1960). Because we have found

other reasons to vacate those findings that exceeded the hearing's

purpose – whether Moran sustained a compensable injury – any harm

                               11                          A-2588-16T1
caused has been remedied. We expect that going forward Cosmetic

will be given a full opportunity to contest any remaining disputes

in this matter.

     Affirmed     in   part,   vacated   in   part,   and   remanded   for

proceedings in conformity with this opinion. We do not retain

jurisdiction.




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