JOSHUA CAPEL v. TOWNSHIP OF RANDOLPH -

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1315-18T1

JOSHUA CAPEL,

          Petitioner-Respondent,

v.

TOWNSHIP OF RANDOLPH,

     Respondent-Appellant.
____________________________

                   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
                   the brief).

PER CURIAM
      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.

                                       I.

      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


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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

affidavit stated:

                    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

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            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,

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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




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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




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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


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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

following analysis.

      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




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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
           below).

           POINT III: THE [WORKERS' COMPENSATION
           JUDGE] CANNOT BE IMPARTIAL WHEN RULING
           ON MATTERS IN WHICH THE WEINER LAW
           GROUP LLP (sic) (not raised below).

                                     II.

     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

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                                      9
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).

                                       III.

                                        A.

      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."

            [R. 1:4-4(b).]


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      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


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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.


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      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


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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.


                                                                           A-1315-18T1
                                        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.

                                      B.

      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.

                                      C.

      Finally, the Township contends the workers' compensation judge was not

impartial in this case because the Township is represented by the Weiner Law


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                                      15
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



1
   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.").
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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.

      Affirmed.




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