CP# 95-15720, 97-3490 Pierre-Louis v. R & I Sheet Metal Company
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
ESSEX COUNTY DISTRICT, NEWARK
R & L SHEET METAL CO.
|YVES A. PIERRE-LOUIS
R & L SHEET METAL CO.
HONORABLE SALVATORE A. INGRAFFIA
Judge of Compensation
BALL LIVINGSTON, ESQ.
By: LYNNE P. KRAMER, ESQ.,
Attorney for the Petitioners
HOWARD WM. CRUSEY, JR., ESQ.,
By: WILLIAM A. DALZELL, ESQ.,
Attorney for the Respondent
Petitioner filed a claim petition on April 27, 1995, alleging an occupational disability of a pulmonary and neuro-psychiatric nature arising out of and in the course of his employment. Respondent, by way of answer admitted employment, however, denied the alleged claim for disability as arising out of and in the course of employment.
During the pendency of the matter, the petitioner’s condition became life threatning and a motion for De Bene Esse deposition was filed and was granted by the Court. The deposition of petitioner was taken on September 14, 1995 which has been entered into evidence as a joint exhibit marked as J-1.
On November 10, 1996 the petitioner passed away do to the progressive state of his condition. On January 27, 1997, the surviving spouse, on behalf of herself and the five surviving children, filed a claim petition for dependency. Respondent, by way of answer to the dependency claim, denied that the deceased petitioner’s occupational claim arose from and in the course of employment. Further, respondent raised the defenses of notice, knowledge and statute of limitation.
Prior to the commencement of trial of the life time claim (C.P. 1995-15720) and the dependency claim. (C.P. 1997- 3490) The petitioner’s attorney filed a pre-trial motion for an order precluding the testimony of respondent’s expert witness, Dr. Ronald Gots, on the basis that such testimony, if allowed, would violate N.J.S.A. 34:15-64.
Both petitioners and respondents attorney filed respective briefs for my consideration, waiving oral arguments.
Petitioner bases its arguments on a strict constructionist view of N.J.S.A. 34:15-64, (Section 64). Section 64 outlines the rights of the court to award witness fees, attorneys fees and other costs to "party in whose favor judgment is entered." Id. The statute provides that, the court may award up to $200 for an evaluating physician’s opinion and up to $250 for a treating physician’s opinion. In addition, the court may award witness fees for physicians for their testimony and depositions as well.
Petitioner maintains that Section 64 should apply to all expert witnesses, both petitioner’s and respondent’s medical witnesses. Petitioner also claims that the statute should prevent expert witnesses from testifying who may charge higher rates than those permitted. Section 64 states, "No evaluating or treating physician shall charge any fee for a report, testimony or deposition in excess of the amount permitted pursuant to the provisions of this section." N.J.S.A. 34:15-64 (b)(2).
Even if petitioner had successfully shown an ambiguity in the statute, the Division of Workers’ Compensation and its courts have created a long-standing custom of only applying this statute to only awards to experts of petitioners. The U.S. Supreme Court has stated that administrative agencies must be given deference in interpreting ambiguous legislation. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); United States v. Haggar Apparel Co., 526 U.S. 380 (1999) (Where the court held that the Court of International Trade had the expertise to "evaluate customs regulations and their operation in light of the statutory mandate" when dealing with the IRS tax code, such to afford the International Trade Court "Chevron" deference). It’s clear that the Division of Workers’ Compensation has the expertise to interpret the laws dealing with Compensation, and must be afforded due deference in this interpretation and application. Petitioner is seeking to reverse almost 90 years of statutory interpretation, claiming that respondent are also bound by Section 64 of the statute. In addition, there has been no evidence that there is any statutory mandate for that position.
Even if an argument could be made that the statute applies to respondent’s and petitioner’s doctors, the court does not have to power to prevent an expert witness from testifying simply based on the amount he charges. As petitioner points out, the relevant language in Section 64 states, no doctor "shall charge". Nowhere in that language does it confer the power to prevent a doctor from testifying because of the amount of money he or she may charge. The only power a judge has in such case is to limit, by law, the amount of fees the doctor is allowed. There is nothing on the record that respondent is looking for an award of fees to its expert.
In addition, petitioner’s requested remedy fails to make a convincing argument. Petitioner is demanding a "Daubert-like hearing", Daubert v. Merril Dow Pharmaceuticals, 509 U.S. 579 (1993).
Daubert is a case that deals with the qualifications of an expert and whether their testimony is relevant. This court already makes those determinations in every case where an expert’s qualifications are questioned. The standards outlined in Daubert have no applicability with the amount of fees a witness is entitled to be paid for the service and testimony.
However, petitioner does raise an issue of public policy, which does merit some discussion. It is argued that all petitioners are at a disadvantage because the witness fee allowances are limited to them, while there are no limits in which a respondent’s can choose to pay their experts. Respondent replies with a very lengthy and well-researched brief outlining the intent of the legislature and the effect of Section 64. This however is a matter for review by the legislature for any remedial action.
Therefore, the motion for the exclusion of the respondent’s expert witness must be denied, notwithstanding the equitable merits presented by the motion. Usage and the long-standing custom of applying this statute to award to petitioner’s experts mandate a denial of this motion. The sole remedy for the petitioner is again to petition the State Legislature and request that the section in question be amended so as to be restrictive to both parties and not solely upon petitioners.
LEGAL ISSUE PRESENTED
WHETHER THE RESTRICTIONS GOVERNING THE FEES PAID TO WITNESSES SET FORTH IN N.J.S.A. 34:15-64 SHOULD APPLY TO RESPONDENT EXPERT WITNESSES.
There is apparently no statutory interpretation or case law that supports petitioner’s claim that Section 64 applies to respondents’ experts. At best, petitioner is addressing an ambiguity in the section of the law. However, the Division has had a long-standing policy and custom of only applying Section 64 to Petitioners’ experts, and the Division’s customs are granted deference, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); United States v. Haggar Apparel Co., 526 U.S. 380 (1999).
Petitioner is correct in pointing out that the statute does not explicitly state that the fees allowed by Section 64 are only applicable against petitioners’ and do not apply to respondents. However, it seems that petitioner is focusing on one small section of the statute, and in doing so is promoting an interpretation in a manner that goes against the import of the statute as a whole.
Respondent points out that the statute allowing witness fees has been interpreted to allow the court to grant an award to both evaluating and treating doctors on behalf of a petitioner, in an effort to ease the costs for the petitioner in these cases. This process has gone on relatively smoothly for the duration of the statute, almost ninety years. Nowhere in that time, has there ever been a reported case where a respondent’s expert has ever received an award of witness fees. There is no evidence offered that shows that the legislature ever intended that Section 64 actually be used to limit the rights of a respondent, or even affect how a respondent present its case.
The judicial position of Judge of Compensation is created and established by legislative enactment. Any jurisdiction or authority is derived by Statute, Rules or precedents established by case law by judicial decisions.
N.J.S.A. 34:15-49 states that:
The Division of Workers’ Compensation is vested with the exclusive original jurisdiction of all claims for Workers’ Compensation benefits... The Judges of the Division of Workers’ Compensation shall hereafter be appointed...
The powers and authority of a Judge of Compensation is therefore derived by statute and is a Legislative creature. In contrast to Judicial position created and established vis-à-vis the State or Federal Constitution, Bonafield v. Cahill, 127 N.J. Super. 149 (App. Div. 1974). Furthermore, a Judge of Compensation and the Workers’ Compensation Court is under the direct supervision and authority of the Commissioner of Labor, who in turn is under the direct control and supervision of the executive branch of government, Wright v. Plaza Ford, 164 N.J. Super. 203 (App. Div. 1978)
Judge Kimmelman in the trial court in, Bonafield stated:
Of course, the Legislature has clothed a judge of compensation with most of the trappings of judicial office. He has substantially the same duties and disabilities as a recognized judge. However, the Legislature stopped short of the mark in the most crucial aspect.
Bonafield v. Cahill, 125 N.J. Super 78, 84 (Ch. Div. 1973).
It is clear therefore, that the Workers Compensation Judge does not have the same jurisdictional powers and authority of those Courts in the Judicial Branch of our Government.
It is clear that jurisdictional powers and authority of a Judge of Compensation are limited by statute. Williams v. Department of Public Welfare, City of Newark, 43 N.J. Super. 473 (County Ct. 1957). When such limited jurisdiction is exceeded that act would be null and void. Balmforth v. McMurray, 81 N.J. Super. 109 (County Ct. 1963). Therefore, it is evident that the jurisdiction of a Judge of Compensation is limited to only the jurisdiction as given to it by statute by which it was created and the rules and regulations enacted in accordance to that Statute.
A Judge of Compensation has exclusive original jurisdiction over all claims of workers compensation. New Jersey Manufactures Ins. Co. v. Blau, 194 N.J. Super. 27 (App. Div. 1984), certif. granted, cause remanded 99 N.J. 158 confirmed on remand 199 N.J. Super. 1 (App. Div. 1985). Jurisdiction cannot be expanded by consent, waiver, estoppel or judicial inclination on claims that first arise in the Workers’ Compensation Division. Handleman v. Marwen Stores Corp., 53 N.J. 404 (1969); O’Keefe v. Johansen Co., 117 N.J. Super. 364 (County Ct. 1971) reversed on other grounds 122 N.J. Super. 45 (App. Div. 1973).
In order to resolve this issue, one must look to first the Workers’ Compensation Statute N.J.S.A. 34:15-1 et. seq. In close review, there is no apparent or implied authority which grants upon a Judge of Compensation the right to exclude the testimony of any witness, whether such witness is a fact witness or an expert witness. However, N.J.S.A. 34:1-20, 34:1A-3(e), 34:1A-12(b) and (c) and more specifically N.J.S.A. 34:15-64(a) states that:
The Commissioner, director and judge of compensation may make such rules and regulation for the conduct of the hearing not inconsistent with the provisions of this chapter as may .... be necessary.
Under this section of the law, one can clearly derive that the legislature has given specific right and authority for the Commissioner, Director and the Judge of Compensation to initiate rules and regulations for the conduct of hearings that may be necessary.
Therefore, since there appears to be no authority or power in the statute, then one must look at the Rules of the Division of Workers’ Compensation that are currently in effect and which have been promulgated and authorized by the above stated sections of the Law. Pursuant to that authority set forth above, the Division of Workers’ Compensation has promulgated and adopted such rules cited as N.J.A.C. 12:235-1.1 et. seq.
In reviewing the Rules of the Division of Workers Compensation, there also, does not appear to be any specific section or article granting or vesting any, apparent or implied, jurisdiction or authority to a Judge of Compensation, which would allow the exclusion of any witness that either parties wish to have testify at any hearing.
The only section of the Rules of the Division of Workers’ Compensation that comes close to granting a Judge of Compensation some authority or discretionary power for exclusion is section N.J.A.C. 12:235-5.12(a) which states:
For unreasonable failure to comply with any written order of a Judge of Compensation or with any requirements of this subchapter, a Judge of Compensation may:
Dismiss or grant the motion or application for enforcement of order;
Suppress a defense or claim;
Order costs or reasonable expenses, including attorney’s fees, to be paid to the Second Injury Fund of the State of New Jersey or an aggrieved representative or party; or
Take other appropriate case-related action.
In reading the above section of the Rules, it is clear that some authority to exclude may exist. However, that authority is restricted upon the unreasonable failure to comply with a written order of the Judge of Compensation and is limited solely for that purpose; which is not the basis and the issue presented to me by the petitioner’s attorney.
In addition, even if petitioner was correct in its interpretation that Section 64 applies to respondents as well as petitioners, the statute only gives the judge the authority to set the amount of the award; not to prohibit the testimony.
In conclusion, I must find that, as a Judge of Compensation, I do not have the authority, either by statute, rule or case law, to grant the relief sought by the petitioner at this time.
Therefore, the motion for the exclusion of the respondent’s expert witness must be denied. However, it should be noted that this denial is not on the merits of the motion, but solely on the issue of limited jurisdiction and authority that a Judge of Compensation is restrained by the Workers’ Compensation Law as well as the Rules of the Division that are presently in effect as well as case law. At best, the possible remedy for the petitioner may very well be the State Legislature.
However, as a Judge and a former practitioner, I would be remiss not to recognize the legal issue, one of first impression that is presented in this motion. Many attorneys have expressed concern over this issue and the inherent unfair restriction placed upon petitioners to seek out experts who charge high fees.
The Court has executed an Order denying the petitioner’s Motion consistent with this Decision and is distributing the same, along with this Decision, to respective attorneys.
Date: May 25, 2001 Hon. SALVATORE A. INGRAFFIA
Judge of Compensation