Opinion
DOCKET NO. A-2920-14T3
02-24-2016
ESEQUIEL GONZALEZ, Petitioner-Respondent, v. DR. DAVID GUY and WINCHESTER FARM, LLC, Respondents-Appellants.
Kenneth W. Thomas argued the cause for appellants (Lanza & Lanza LLP, attorneys; John R. Lanza, of counsel; Mr. Thomas, on the brief). Respondent has not filed a brief.1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Division of Workers' Compensation, Claim Petition Nos. 2011-34391 and 2011-34393. Kenneth W. Thomas argued the cause for appellants (Lanza & Lanza LLP, attorneys; John R. Lanza, of counsel; Mr. Thomas, on the brief). Respondent has not filed a brief. PER CURIAM
Counsel for the Uninsured Employer's Fund of the Department of Labor and Workforce Development submitted a letter to the court stating the Fund agrees with the decision of the workers' compensation judge.
Petitioner Esequiel Gonzalez was hired to clean stables owned by respondent Dr. David Guy. He filed a claim petition for workers' compensation benefits and a motion for medical and temporary benefits, alleging he suffered an injury to his shoulder on November 2, 2011 and a second injury to the same shoulder on December 17, 2011.
Respondent Guy was the sole owner of Winchester Farm, LLC, which ceased doing business in February 2012. --------
Petitioner's "motion for temporary and/or medical benefits" pursuant to N.J.A.C. 12:235-3.2, dated February 28, 2012, stated he was totally temporarily disabled and entitled to temporary disability benefits from November 2, 2011 and December 17, 2011 and continuing at the rate of $252 per week. The motion represented that the following were attached: Dr. Salvatore Milazzo's report of February 2, 2012; and Hunterdon Medical Center's records for November 2, 2011 and December 17, 2011, discharge instructions for December 17, 2011, and emergency room bill for $1506. The motion also stated that, "[a]s set forth in the attached reports of" Dr. Milazzo, petitioner required an MRI of the right shoulder and a referral to an orthopedic surgeon.
On April 13, 2012, petitioner appeared with counsel for a hearing on his application for temporary and medical benefits. Respondent appeared pro se. When asked by the court "whether his previous indication that he did not want an attorney was correct," respondent stated he could not afford an attorney and was willing to proceed without one. Counsel for the Uninsured Employer's Fund appeared as well. The judge advised respondent regarding the procedure to be followed: petitioner would testify and present witnesses on his behalf; respondent would have an opportunity to cross-examine, testify and present witnesses on his behalf.
Testifying through an interpreter, petitioner stated he was employed at respondent's farm, cleaning the stable for $360 per week. On November 2, 2011, he was leading a horse into the stable with his right hand when "[t]he horse tried to [come] loose," moving its head backward. As he tried to control the horse, he felt pain in his right shoulder area, like "the bone in [his] shoulder was loose." Although he was not able to use his right arm, he was able to drive home with the use of his left arm. Petitioner then went to the emergency room. His arm was x-rayed, he was prescribed medication and discharged with instructions to rest. He was told he could return to work in one week.
Petitioner testified that he returned to work for respondent after four days and was still in his employ when he was injured a second time, on December 17, 2011. He stated that he was again leading a horse into the stable "when the horse started jumping." As he was trying to hold on to the horse, "something inside [his arm] got loose," injuring the same shoulder.
Petitioner stated that respondent took him to the hospital. He received an injection in his left arm because he could not extend his right arm and additional x-rays were taken. He again received medication, was told to rest for six weeks, and was discharged. Respondent took him home. Petitioner did not return to work for respondent after that. He testified that respondent fired him and stated he would not compensate him for his medical care or for his loss of pay.
Upon questioning by respondent, petitioner acknowledged that he began to work at another stable prior to the second injury. However, he maintained that on December 17, 2011, he performed work for respondent as well and was injured in the course of doing that work.
Respondent did not file an answer to the claim petition until December 17, 2013. The answer only addressed the December 2011 injury. Respondent asserted petitioner was not in his employ on the date of the injury and that he had no knowledge as to how and where the injury occurred. The answer made demands for "answers to standard occupational disease interrogatories" and "all records of medical treatment, examination and diagnostic studies."
In August 2014, respondent filed a motion to dismiss petitioner's claim, stating:
Petitioner has not appeared in court for a trial set for Aug. 22, 14 with no prior notice to court and respondent. Trial dates have been set since May 2014 and have not taken place due to various reasons including a "no show" by petitioner. Respondent have [sic] shown in court for over two years and will file for damages due to loss of business income.
Respondent's motion was returnable October 3, 2014. On that day, petitioner appeared with counsel, ready to proceed with the trial. At the outset, the workers' compensation judge addressed respondent's motion based upon petitioner's failure to appear for trial.
In support of his motion, respondent stated petitioner had not shown for the August 22 trial date, had not provided prior notice that he would not attend and had not given a reason for his failure to attend. He did not complain that petitioner had failed to provide him with any discovery.
Petitioner's counsel stated petitioner lives in Pennsylvania and was unable to attend the August trial date because his car broke down. He stated petitioner had appeared for trial on a prior date when the trial did not proceed because the judge was ill. The judge recalled that on another occasion there was an interpreter issue. The judge then asked if everyone was ready to proceed to trial. After petitioner's counsel answered affirmatively, she addressed respondent:
THE COURT: Are you ready to proceed, Mr. Guy?
DR. GUY: Ready to proceed, and I'm waiting for your ruling also on the motion to dismiss.
THE COURT: Well, it is ready for trial so the motion to dismiss is denied.
DR. GUY: I understand.
Thus, once again, respondent posed no objection to proceeding to trial and did not complain that he had not received any discovery from petitioner.
The judge stated she had reviewed the testimony given on April 13, 2012 and "that transcript [would be] adopted as if the testimony were taken [t]here [that day]." Petitioner offered the documents referenced in his motion for temporary benefits as well as a report from Dr. Milazzo dated March 7, 2013. The judge addressed respondent directly, identified each of the documents proffered and asked, "Mr. Guy, do you have any questions for me about what is proffered into evidence?" Respondent's only reply was that he had submitted a copy of the law of New Jersey regarding the risk involved in working in equestrian facilities that he believed should be part of the evidence. He made no objection to any of the evidence proffered by petitioner.
The court again advised respondent of his right to question petitioner. Respondent exercised this right and also testified on his own behalf.
In setting forth her findings, the workers' compensation judge found petitioner to be credible. As to the claim for the November injury, the judge found respondent responsible for the payment of medical bills totaling $2,236.46. She also found no temporary disability benefits due to petitioner from that injury and no permanent disability on that claim. As for the December injury, the judge found petitioner sustained a 12 1/2% of partial total permanent disability for his right shoulder. She found petitioner was entitled to four weeks of temporary disability benefits at $252 per week for a total of $1008 and that the permanent disability was equal to 75 weeks at $211 per week for a total of $15,825. She found respondent also responsible for medical bills of $3,275.36 and pertinent fees and costs.
After the judgments were docketed, petitioner filed a motion to enforce the judgment and respondent filed a cross-motion to vacate the judgment. Respondent appeals from the denial of his cross-motion. He argues that the decision denying his cross-motion and the orders entering judgment against him must be vacated because he was denied due process and that the judgment should be vacated pursuant to Rule 4:50-1(f).
"In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient." Doe v. Poritz, 142 N.J. 1, 99 (1995). Respondent contends his due process rights were violated because he was entitled, pursuant to N.J.S.A. 34:15-53, to a minimum of ten days notice before a hearing and there was no pretrial conference and memo as required by N.J.A.C. 12:235-3.11.
N.J.S.A. 34:15-53 provides in pertinent part:
When a time and place has been fixed for such hearing, the director, deputy director or the referee to whom the cause has been referred shall give at least 10 days' notice to each party of the time and place of hearing. The director, deputy director or any referee to whom a cause has been referred, shall have power to adjourn the hearing thereof from time to time in his discretion.
N.J.A.C. 12:235-3.11 requires that a pre-trial conference be scheduled at which "[a]ll medical reports shall be exchanged"; the judge and attorneys "agree upon the type of examination(s) required by each party"; "a sincere effort" is made to limit issues; and a pre-trial memorandum is executed.
The record before us does not reveal whether there was compliance with either the statute or the regulation before the April 2012 hearing or any of the trial dates up to and including the August 2014 date at which petitioner failed to appear. The thrust of respondent's argument, however, appears to be that he was deprived of his due process rights by a failure to comply with these requirements as to the October 2014 date which was converted from a return date for his motion to a trial date.
"[A] workers' compensation judge is not strictly bound by rules of evidence and procedure but must respect and insure due process and fundamental rights of litigants." Waters v. Island Transp. Corp., 229 N.J. Super. 541, 547 (App. Div. 1989). That context is important in our consideration. As the Supreme Court observed, "[d]ue process is not a fixed concept . . . but a flexible one that depends on the particular circumstances. Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe, supra, 142 N.J. at 106.
Respondent's challenge is to the procedure prior to the final hearing that was conducted after one day of testimony and several trial dates that passed without the trial proceeding. The record reveals that, prior to the October 3 date, he had received petitioner's motion, which included a description of his claimed injury and Dr. Milazzo's report. At the time of the April 2012 hearing, he was questioned by the judge about his proceeding without an attorney and agreed to proceed without any complaint that he had not received any of the documents listed in the motion. In the answer filed thereafter, he made demand for medical records. Although he now contends his due process rights were denied by requiring him to proceed to trial on October 3 without those documents, he presented no objection to proceeding on that date, let alone alert the court to the fact he had not received documents he demanded. The record shows that the judge carefully advised respondent of his right to cross-examine and to present testimony and witnesses on his behalf and explicitly questioned him to determine if he had any objection to the exhibits proffered by petitioner. Yet, respondent never objected.
In this appeal, respondent has not identified any aspect of the documents received in evidence that he was unable to challenge as a result of the claimed procedural deficiency. He now complains that he was hampered on that trial date because he had to proceed without his personal notes and other material, without having the opportunity to consult counsel after his motion was denied and without knowing he had the right to object to proceeding to trial. The fact respondent was proceeding pro se does not relieve him of the obligation to object to procedures he deems unfair to him. See Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014) (citing Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982)) ("[P]ro se litigants are not entitled to greater rights than litigants who are represented by counsel."). Further, it is noteworthy that the thrust of his defense was that petitioner was not in his employ at the time of the second injury and not any serious challenge to the fact of injury.
Because respondent raised no objection to the trial proceeding on October 3 and failed to alert the court that he did not have an adequate opportunity to review documents prior to trial, his argument is reviewed as plain error. R. 2:10-2. We are satisfied, based on our review of the record, that respondent had adequate notice of petitioner's claim and was provided with an adequate opportunity to challenge petitioner's proofs and present his own defense. Because we discern no deprivation of his due process rights in the entry of the judgments, the argument that his motion to vacate the judgments should have been granted is moot.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION