NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-1315-18T1
TOWNSHIP OF RANDOLPH,
Submitted September 23, 2019 - Decided October 10, 2019
Before Judges Sumners and Geiger.
On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2018-19439.
Weiner Law Group LLP, attorneys for appellant (Louis
M. Masucci, Jr., on the briefs).
Nusbaum, Stein, Goldstein, Bronstein & Kron, PA,
attorneys for respondent (Susan Bielanowski Reed, on
In this workers' compensation case, respondent Township of Randolph
appeals from an award of temporary disability and medical benefits to petitioner
Joshua Capel, and the denial of its motion for reconsideration and stay of the
prior order. We affirm.
Capel was employed by the Township as a laborer in its Department of
Public Works. He claims he suffered injuries to his neck, back, and left shoulder
that arose out of and in the course of the employment while lifting logs at work
on May 21, 2018. Capel filed a claim petition seeking workers' compensation
benefits on July 18, 2018.
The Township filed an answer to the claim petition on October 5, 2018,
well past the thirty-day time limit for filing an answer. N.J.A.C. 12:235-
3.1(b)(2). In its answer, the Township did not deny Capel had injured his
shoulder or back, and identified medical providers that rendered treatment to
Capel on behalf of the Township. The answer denied Capel suffered any injury
to his neck as a result of the May 21, 2018 accident, and demanded Capel prove
compensability as to the alleged neck injury.
On October 9, 2018, Capel filed a motion for medical and temporary
disability benefits (MMT) supported by the affidavit of his attorney. The
affidavit recited the underlying facts and stated Capel "received appropriate
medical treatment including treatment to his left shoulder" by Dr. Sayde, the
Township's authorized physician. The affidavit further stated that on August
14, 2018, Dr. Sayde recommended Capel "undergo left shoulder surgery as a
direct consequence of his work accident."
Rather than authorizing the surgery, the Township required Capel to
"undergo a second opinion." Capel was examined by Dr. Montgomery on
September 17, 2018. According to the affidavit, "Dr. Montgomery agreed that
[Capel] should undergo left shoulder surgery." The Township refused to
authorize the shoulder surgery despite the recommendations of both authorized
orthopedic physicians. No treatment was sought for Capel's back or neck.
The affidavit also stated the claims adjuster advised Capel's attorney that
the claim was still being investigated "and accordingly she could not or would
not authorize surgery."
As to medical proofs in support of the demand for surgical treatment, the
Notwithstanding a timely demand for all
authorized treating medical reports to be forwarded, I
have not received those records and accordingly at this
time I am unable to secure a report of the medical
providers authorized by the respondent. Nevertheless,
it is assumed that the respondent has all authorized
medical records which will fully corroborate the
statements made in this affidavit.
The affidavit requested the court order the Township to provide treatment
to Capel by a date certain, award appropriate counsel fees, and impose sanctions
pursuant to N.J.S.A. 34:15-28.2.
The court scheduled the motion hearing for November 9, 2018. N.J.A.C.
12:235-3.2(d) required the Township to file its opposition to the MMT by
October 30, 2018, the date twenty-one days after service of the MMT. The
Township's initial opposing papers were not filed until November 8, 2018 , the
day before the motion hearing. The Township contended Capel sustained his
injuries while working at his other job at Samaritan Inn.
The workers' compensation judge denied reconsideration. She noted the
initial opposing papers did not include an affidavit or certification of the
Township's attorney. "Instead, counsel submitted a two-page letter rampant
with uncorroborated, factual speculation and argument predicated on matters
outside the personal knowledge of the submitter." The letter acknowledged that
Dr. Sayde and Dr. Montgomery recommended Capel undergo left shoulder
surgery as a consequence of the accident.
The letter disputed the details of the conversation between Capel's
attorney and the claims adjuster. It stated that while employed by the Township,
Capel lived for free at Samaritan Inn, a homeless shelter, in exchange for work.
Attached as exhibits were copies of Capel's handwritten time sheets for April 9,
2018 through June 23, 2018 for his work allegedly performed at Samaritan Inn.
The workers' compensation judge noted that "[n]othing by way of personal
knowledge certification or affidavit was submitted to explain how those
materials were obtained, who prepared them and by what manner, or whether
they had any basis for potential admissibility in connection with the MMT." The
workers' compensation judge also noted the Township had produced no evidence
that disputed that the treatment sought is needed.
The Township also submitted "certifications" of the claims adjuster and
Scott Wagner, a co-worker in the Township's Department of Public Work's. The
certification of the claims adjuster was unsigned. Neither document included
the verification required for certifications in lieu of oath, "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 am subject to
punishment." See R. 1:4-4(b). Also submitted were six unsigned statements by
co-workers dated November 5, 2018. The statements lacked the verification
required for certifications in lieu of oath. R. 1:4-4(b). On the hearing date, the
Township produced signed copies of the statements. Notably, the date of each
remained November 5, 2018.
On the hearing date, the workers' compensation judge noted that pursuant
to N.J.A.C. 12:235-3.2(f), MMTs "supported by medical reports, affidavits, or
certifications, are able to be considered as unopposed, unless the respondent
filed" affidavits, certifications, or medical reports to indicate there is a dispute.
The court acknowledged that affidavits or certifications were permitted by the
rules in workers' compensation proceedings. The court explained that an
affidavit must be executed in front of a notary, contain a jurat, and indicate the
affiant is swearing to the truth of facts set forth in the affidavit. Affidavits are
to be in the first person and based on personal knowledge. Certifications are
permitted in lieu of affidavits but must contain the language required by Rule
1:4-4(b). The workers' compensation judge noted the required language is
intended to secure personal responsibility for sanctions if a false certification is
submitted, citing Sroczynski v. Milck, 197 N.J. 36, 43 (2008).
The workers' compensation judge concluded the opposing papers were not
in compliance with the rules despite respondent's counsel having been
previously warned, on several occasions, about such deficiencies. She declined
to consider the submissions as opposition, considered the MMT unopposed, and
granted the application.
The workers' compensation judge rejected the Township's request under
Rule 1:1-2(a) to relax the requirements imposed by Rule 1:4-4(b). She also
implicitly rejected the Township's argument that Rule 1:4-4(b) does not apply
to workers' compensation cases.
The workers' compensation judge ordered the Township to authorize the
shoulder surgery, which was to be scheduled within ten days.
The Township moved for reconsideration or a stay of the order. In her
written decision denying the motion, the workers' compensation judge recounted
the numerous deficiencies in the opposing papers submitted by the Township.
She rejected the Township's argument that certifications are not required to
contain the language set forth in Rule 1:4-4(b), as well as its claim that use of
the single word "certification" in the caption of the documents "impart[s] the
same solemnity or consequences as placing one's signature with a date
immediately following the inclusion" of the language required by the rule.
As to the Township's argument that the court was required to relax the
rules, the workers' compensation judge noted the Township's opposing papers
were submitted late and "this is not the first instance where counsel has
submitted papers that are not compliant, did not provide proper certifications, or
argued law or factual matters for which there is no first-hand knowledge or
support from any source." Apparently, prior relaxation of the rules did not result
in later compliance.
The workers' compensation judge found no basis to vacate her prior order.
Regarding the Township's motion to stay execution of the prior order, the court
noted no argument was advanced and no affidavits or certifications submitted in
support of any of the criteria for granting a preliminary injunction under Crowe
v. De Gioia, 90 N.J. 126, 132-34 (1982). The court then engaged in the
There is no dispute that Capel complained of a work-related injury to the
left shoulder and back. The denial of compensability in the Township's answer
was limited to the alleged neck injury. The Township provided medical care to
Capel's shoulder. The Township's treating and examining physicians found
Capel needed shoulder surgery. No medical report in opposition to the MMT
was submitted. The workers' compensation judge concluded the Township
sought to delay treatment based upon untimely submissions and speculation that
do not comply with the rules. She determined that no basis was shown for
staying the prior order. We denied the Township's application to file an
emergent motion. This appeal followed.
The Township raises the following points:
POINT I: THE DISMISSAL OF THE OBJECTION
TO THE MOTION BASED ON PROCEDURAL
IRREGULARITIES RESULTS IN UNFAIR
TREATMENT OF THE PARTIES.
POINT II: THE [WORKERS' COMPENSATION
JUDGE] PREJUDGED THE CASE. [THE
TOWNSHIP] WAS NOT GIVEN A FAIR HEARING
AND THIS MATTER SHOULD BE REMANDED TO
ANOTHER JUDGE FOR HEARING (not raised
POINT III: THE [WORKERS' COMPENSATION
JUDGE] CANNOT BE IMPARTIAL WHEN RULING
ON MATTERS IN WHICH THE WEINER LAW
GROUP LLP (sic) (not raised below).
Our standard of review in a workers’ compensation case is whether the
trial court’s "findings reasonably could have been reached on the basis of
sufficient credible evidence in the record, with due regard to the agency’s
expertise." Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We
may not substitute our own factfinding for that of the judge of compensation.
Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather,
our task is to decide "'whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record,' considering 'the
proofs as a whole.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting
State v. Johnson, 42 N.J. 146, 162 (1964)). The interpretation of a court rule,
however, is a question of law; therefore, our review is de novo. Vanderslice v.
Stewart, 220 N.J. 385, 389 (2015).
Worker's compensation proceedings are governed by the Workers
Compensation Division Rules. N.J.A.C. 12:235-1.1. The rules provide that
affidavits, certifications, or medical reports may be submitted in support of, or
in opposition to, a MMT. N.J.A.C. 12:235-3.2(f). "Certifications in lieu of oath
as provided in the New Jersey Rules of Court may be used for motions and any
other supporting documents filed with the [c]ourt." N.J.A.C. 12:235-1.3(b). In
turn, Rule 1:4-4(b) governs certifications in lieu of oath. It provides:
In lieu of the affidavit, oath or verification required by
these rules, the affiant may submit the following
certification which shall be dated and immediately
precede the affiant’s signature: "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
wilfully false, I am subject to punishment."
Here, the certifications submitted in opposition to the MMT were not
signed, and did not include the verification required for certifications in lieu of
oath, and were not notarized. "Therefore, the certification[s] had no evidentiary
value." Pascack Cmty. Bank v. Universal Funding, LLP, 419 N.J. Super. 279,
288 (App. Div. 2011). Accordingly, they could not be considered by the court.
Because the opposing papers consisted of a letter brief that was not based
on personal knowledge, unsigned or otherwise defective certifications, and
unsworn submissions, all of which was submitted on the eve of the motion
hearing, in violation of N.J.A.C. 12:235-3.2(d), the worker's compensation
judge properly considered the motion unopposed. Capel's moving papers
demonstrated that both authorized physicians determined Capel needed left
shoulder surgery. The Township does not argue otherwise. In its answer, the
Township only asserted the alleged neck injury was not compensable.
A MMT "accompanied by supporting documentation can prevail without
plenary hearing only if opposing documents are facially insufficient to fairly
meet, contradict or oppose the material allegations of the documents in support
of the motion." Hogan v. Garden State Sausage Co., 223 N.J. Super. 364, 367
(App. Div. 1988). 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. We discern no
error by the court.
The Township requested the workers' compensation judge to relax the
requirements imposed by the rules. The Township argues it substantially
complied with the rules. The workers' compensation judge disagreed and
declined to relax the rules. We discern no abuse of discretion.
We are mindful that both N.J.A.C. 12:235-1.2 and Rule 1:1-2 permit
relaxation of the rules, identically stating the rules "shall be construed to secure
a just determination, simplicity in procedure, fairness in administration and the
elimination of unjustifiable expense and delay." Moreover, "[u]nless otherwise
stated, any rule may be relaxed or dispensed with" by the court "if adherence to
it would result in an injustice." Rule 1:1-2(a); N.J.A.C. 12:235-1.2.
As recognized by the Court in Romagnola v. Gillespie, Inc., however,
Rule 1:1-2 "is not meant as a safe harbor for the dilatory; its 'catch-all' nature is
not intended to serve as a cure-all." 194 N.J. 596, 606 (2008). Movants seeking
relaxation of the rules "bear a heavy burden." Ibid. Relief under Rule 1:1-2
"will be granted only sparingly and only after an appropriate examination and
weighing of all relevant factors has occurred." Id. at 606-07.
Our review of the record convinces us that the workers' compensation
judge did not abuse her discretion by declining to relax the rules. She properly
considered that the motion papers were woefully late, one of the certifications
was unsigned, both certifications lacked the required verification language, and
the other submissions were deficient. This did not constitute substantial
compliance. Moreover, the defects in the certifications, which rendered them of
no evidentiary value, were not waivable.
The Township moved to vacate the order granting the MMT. In essence,
the motion sought reconsideration. The Division's rule do not expressly provide
for reconsideration. In the absence of published case law or Division rules
addressing motions for reconsideration, we rely upon the case law interpreting
Rule 4:49-2. See Waters v. Island Transp. Corp., 229 N.J. Super. 541, 550 (App.
Div. 1989) (noting that while our rules "do not directly control the actions of a
compensation judge," "court-fashioned doctrines for the handling of litigation
do in fact have some genuine utility and relevance in administrative
proceedings" given the "pronounced similarities in the exercise of judicial and
quasi-judicial powers" (citations omitted)).
Reconsideration is a matter within the sound discretion of the court.
Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). It is not
appropriate merely because a litigant is dissatisfied with a prior ruling or
"wishes to reargue a motion." Ibid. Instead, reconsideration 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." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)).
The Township submitted six new certifications in support of its motion
for reconsideration. All six certifications were signed and contained the
following paragraph: "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
am subject to punishment." Noticeably absent from each of the certifications
was the required prefatory phrase "I certify." See R. 1:4-4(b). Due to that
defect, the six new certifications were not competent evidence. Pascack Cmty.
Bank, 419 N.J. Super. at 288.
In addition, motions for reconsideration may not be based on facts that
were known or should have been known, or evidence that was available, in time
to be submitted in opposition to the original motion. Palombi, 414 N.J. Super.
at 289 (citing Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-89 (App.
14 Div. 2006)). The court did not err by rejecting certifications that could have
been submitted in opposition to the MMT.
The workers' compensation judge denied reconsideration. We discern no
abuse of discretion.
The Township argues the worker's compensation judge prejudged the case
by rejecting the non-compliant certifications and unverified statements. It
asserts that the only way the workers' compensation judge could have drawn the
conclusion that the seven individuals who signed the certifications "did not
know they had an obligation to tell the truth and did not understand there would
be punishment for making a false claim," "would be to judge the intent of the
witnesses in advance of their testimony." We are unpersuaded by this argument.
The noncompliant certifications "had no evidentiary value." Pascack Cmty.
Bank, 419 N.J. Super. at 288. Therefore, they could not be considered when
deciding the MMT. Rejecting the certifications on that basis did not constitute
prejudging the case.
Finally, the Township contends the workers' compensation judge was not
impartial in this case because the Township is represented by the Weiner Law
Group LLP. The Township claims that by stating she has "for[e]warned
respondent on numerous occasions," regarding noncompliance with the court
rules, the workers' compensation judge "goes out of her way to make Weiner
Law Group LLP look like it routinely ignores" the rules.
A judge presiding over a case must be impartial. Code of Judicial
Conduct, Canon 1, R. 1.1 & Canon 3, R. 3.6. A judge "shall not sit in any
matter" . . . "when there is any . . . reason which might preclude a fair and
unbiased hearing and judgment, or which might reasonably lead counsel or the
parties to believe so." R. 1:12-1(g).
Rule 1:12-2 permits a party to move to disqualify the judge presiding over
the case. "Motions for disqualification must be made directly to the judge
presiding over the case." State v. McCabe, 201 N.J. 34, 45 (2010) (citing R.
1:12-2; Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)); Bonnet v.
Stewart, 155 N.J. Super. 326, 330 (App. Div. 1978)). The Township did not
move to recuse the workers' compensation judge. Accordingly, the issue is
waived and not preserved for appeal.1 In any event, there is no evidence of
See State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006) ("Generally,
issues not raised below, even constitutional issues, will not ordinarily be
considered on appeal unless they are jurisdictional in nature or substanti ally
implicate public interest.").
partiality or bias in the record. Enforcing the rules and mentioning that counsel
had been previously warned regarding prior similar noncompliance does not
demonstrate partiality or bias, particularly where prior warnings related to the
rejection of the Township's request to relax the rules.