State of New Jersey
DEPARTMENT OF LABOR

April 24, 2001

re: Miller v. Fabco, Inc. - C.P. 98-040488

Counsel:

After trial had commenced in this matter I was advised by counsel for the parties that they wished to bifurcate the issue of compensability and receive an opinion on that phase of the case before presenting medical testimony. In the event that I were to find the claim compensable under N.J.S.A. 34:15-1 et seq., the parties would then present their respective medical witnesses, documents, etc.

In an opinion dated November 15, 2000 I presented my reasons for finding that the petitioner had not met its burden of proof on the issue of compensability. By an order issued on the same date I dismissed petitioner's claim petition. Mr. Rubin, counsel for the petitioner, subsequently filed a Motion for Reconsideration on the grounds that (i) he had not been given an opportunity to present an oral summation of his client's position, and (ii) since the date of my ruling he had obtained knowledge of the existence of potential testimony of Morris Miller, the petitioner's grandfather, as to the limited nature of petitioner's physical activities during the first few days after his injury.

I granted petitioner's Motion and established a briefing and hearing schedule with respect to the issue of Reconsideration. In the course of the hearing held on the matter Mr. Rubin

represented to the court that prior to November 15, 2000 he did not know that his client's activities over the weekend following his accident had been monitored by his grandfather, and was therefore unaware that the latter was available as a supporting witness for his client's claim. Mr. Rubin's brief presents a second issue as well - whether the statements made by the respondent's witnesses are to be considered as simply disavowing any knowledge of the alleged accident rather than a denial that an accident took place.

There is no question that the proposed testimony of the petitioner's grandfather could, depending on the credibility to be assessed to it, have a significant effect on the issue of compensability. There is also the fact that certain medical documents which Mr. Rubin attached to his Brief could be used to support petitioner's claim as to how and whether he injured his back while in respondent's employ. Unfortunately, such documents were not presented in the course of this proceeding prior to my ruling on the matter.

Respondent argues that the petitioner's argument and motion must fail because the various points presented do not fall within the scope of Rule 4:50-1. However, in considering respondent's argument I note the lack of discovery, particularly the lack of depositions, provided under the Rules for Workers' Compensation practice, as well as the acknowledged legislative intent that the Compensation Statute is to be interpreted in a manner that extends, rather than restricts, its coverage, Hannigan v. Goldfarb, 53 N.J. Super. 190, 195 (App. Div. 1958); Conley v. Oliver & Co., 371 N.J. Super. 250 (App. Div. 1998). I must consider also the Appellate Division's direction that the Workers' Compensation Act is to be "construed to bring as many cases as possible within its coverage" Hannigan, supra., p. 195. Extending the above reasoning to the facts before me on petitioner's motion I find that whether by reason of "mistake, inadvertence or excusable neglect"[Rule 4:50-1(a)] the petitioner failed to present to the court all the evidence or testimony that was available to him (and his counsel) as relates to his claim for worker's compensation coverage for an accident which petitioner alleges occurred on October 9, 1998 while he was acting in the employ of respondent. I also recognize the argument made by petitioner's counsel that he was somewhat unfamiliar with the manner in which proceedings are conducted in the Compensation Court, including the absence of opening or closing statements unless the same are requested by counsel (not requested in this case), and for that reason he missed/lost the opportunity of either commenting on testimony that had been presented and/or directing the court's attention to specific testimony or evidence which was then a part of the record in this matter.

Accordingly, under the authority of Estelle v. Red Bank Bd. of Educ., 14 N.J. 256 (1954), I find that justice demands that the dismissal I entered against claim petition 98-040488 be vacated and that the trial of this matter continue. In order to avoid any further misunderstanding as to the manner of procedure I direct that the petitioner first present his case fully, including medical proofs; when he has rested, the respondent will present its case.

If either counsel request on the record and before they have rested the opportunity to present an oral summation after all testimony and evidence has been submitted, both counsel will be given such opportunity after all evidence and testimony have been submitted.

Neale F. Hooley
Judge of Compensation