Opinion
DOCKET NO. A-5428-14T3
11-30-2016
DEBORAH S. PSCHUNDER-HAAF, Petitioner-Respondent, v. SYNERGY HOME CARE OF SOUTH JERSEY, Respondent-Appellant.
Weber Gallagher Simpson Stapleton Fires & Newby, L.L.P., attorneys for appellant (Richard K. Tavani, on the brief). Adam M. Kotlar, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Yannotti and Gilson. On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Petition No. 2009-33493. Weber Gallagher Simpson Stapleton Fires & Newby, L.L.P., attorneys for appellant (Richard K. Tavani, on the brief). Adam M. Kotlar, attorney for respondent. PER CURIAM
Synergy Home Care of South Jersey (Synergy) appeals from a July 17, 2015 order, entered in a workers' compensation action, that required it to reimburse petitioner Deborah S. Pschunder-Haaf for the actual costs of her medical expert. The actual costs were $800 for the expert's report and $4500 for the expert's testimony. We affirm because the imposition of actual costs was within the discretion of the compensation judge under N.J.S.A. 34:15-28.2.
This is the second appeal from this workers' compensation action. Our first decision was issued in 2015. See Deborah S. Pschunder-Haaf v. Synergy Home Care of South Jersey, No. A-3138-13 (App. Div. May 22, 2015) (2015 Decision). This appeal challenges the order entered following the remand from our 2015 Decision. Thus, we will only summarize the facts and proceedings relevant to the second appeal.
Pschunder-Haaf worked as a home health aide and she was employed by Synergy. In 2009, a patient fell on her causing injuries to her lower back, spine, neck, and head. Her injuries have required relatively extensive medical care and have caused derivative injuries.
In 2010, Pschunder-Haaf filed a workers' compensation claim, but Synergy denied that claim. The compensation judge ordered Synergy to provide Pschunder-Haaf with medical care and temporary wage benefits. Thereafter, the workers' compensation action involved protracted litigation, including numerous proceedings before compensation judges. During the workers' compensation proceedings, a pattern developed: the compensation judge would order Synergy to take certain actions, Synergy would fail to act, Pschunder-Haaf would file a motion to compel, and the compensation judge would enter an order compelling Synergy to comply with earlier orders. In total, seven orders were entered compelling Synergy to comply with prior orders.
On February 25, 2014, a compensation judge entered an order following a hearing. In that order, the compensation judge (1) required Synergy to continue to pay for Pschunder-Haaf's medical care and temporary wage benefits; (2) awarded Pschunder-Haaf $5654.10 as reimbursement for the actual costs of her medical expert; (3) awarded Pschunder-Haaf $7500 in counsel fees; (4) imposed a $5000 sanction on Synergy; and (5) threatened to impose an additional $10,000 sanction if Synergy did not comply with the order within ten days. The $5654.10 in costs included $800 for a medical report and $4500 for the testimony of the medical expert.
Synergy appealed the February 25, 2014 order. In our 2015 Decision, we affirmed the order in part and remanded in part. Specifically, we affirmed (1) the requirement that Synergy pay Pschunder-Haaf for her medical treatments and temporary wage benefits; (2) the award of $7500 for counsel fees; and (3) the imposition of the $5000 sanction. We vacated the $10,000 sanction because that sanction exceeded the governing statute that capped a sanction at $5000. See 2015 Decision, slip op. at 13. We noted, however, "the compensation judge on remand could impose a sanction, if warranted, pursuant to N.J.A.C. 12:235-3.16(h)(2)." Ibid.
With regard to the medical expert costs, however, we found that the compensation judge had failed to explain the basis for imposing the actual costs. In that regard, we pointed out that the costs for medical experts were limited by the governing workers' compensation statute. See N.J.S.A. 34:15-64(a) (listing the reimbursements of costs allowed in workers' compensation actions). Thus, we remanded the medical expert costs issue and directed the compensation judge to determine the reasonableness of those costs "in light of the relevant statutes and Division rules." 2015 Decision, slip op. at 13.
In June 2015, the parties executed a consent order that resolved all issues except for the cost of the medical expert's report and testimony. On remand, the compensation judge again awarded Pschunder-Haaf the actual costs she incurred for her medical expert, which were $800 for the report and $4500 for the testimony. The compensation judge initially explained her reasons for the award on the record at a hearing held on June 29, 2015, and then amplified the reasons for her decision in a written decision issued on July 23, 2015.
In the written decision, the compensation judge stated that the award of actual costs was authorized under N.J.S.A. 34:15- 28.2, which provides that when a party or counsel to a workers' compensation action fails to comply with an order in that action, "a judge of compensation may, in addition to any other remedies provided by law . . . impose costs . . . [and] impose additional fines and other penalties . . . ." The compensation judge also cited N.J.S.A. 34:15-64(c), which permits a compensation judge to award a fee for the services of an attorney or medical expert if necessary for the "proper presentation of the case."
On this second appeal, Synergy argues that the imposition of actual costs violated the limitations set forth in N.J.S.A. 34:15-64(a), and that there was no basis to compel reimbursement under N.J.S.A. 34:15-28.2. We disagree because the proceedings in this workers' compensation action justified the imposition of the actual costs for the medical expert.
We review a monetary award by a judge of compensation under an abuse of discretion standard and "[w]e will modify or set aside such an award only if it is manifestly excessive or inadequate . . . ." Akef v. BASF Corp., 305 N.J. Super. 333, 341 (App. Div. 1997). We also afford an agency's interpretation of its own statutes "substantial deference." In re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005). We generally will not reverse an agency's determination "unless it was arbitrary, capricious or unreasonable, or violated legislative policies expressed or implied in the act governing that agency." Silver v. Bd. of Review, 430 N.J. Super. 44, 58 (App. Div. 2013).
The amounts for costs, including witness fees, allowed in a workers' compensation action is generally governed by N.J.S.A. 34:15-64. That statute provides, in part, that a judge of compensation:
a. [M]ay allow to the party in whose favor judgment is entered, costs of witness fees and a reasonable attorney fee, not exceeding [twenty percent] of the judgment; and a reasonable fee not exceeding $400 for any one witness, except that the following fees may be allowed for a medical witness:
(1) (a) A fee of not more than $400 paid to an evaluating physician for an opinion regarding the need for medical treatment or for an estimation of permanent disability, if the physician provides the opinion or estimation in a written report; and
(b) An additional fee of not more than $400 paid to the evaluating physician who makes a court appearance to give testimony; or
(2) (a) A fee of not more than $450 paid to a treating physician for the preparation and submission of a report including the entire record of treatment, medical history, opinions regarding diagnosis, prognosis, causal relationships between the treated condition and the claim, the claimant's ability to return to work with or without restrictions, what, if any, restrictions are appropriate, and the anticipated date of return to work, and any recommendations for further treatment; and
(b) (i) An additional fee of not more than $300 per hour, with the total amount not to exceed [$2500], paid to the treating physician who gives testimony concerning causal relationship, ability to work or the need for treatment; or
(ii) An additional fee of not more than $300 per hour, with the total amount not to exceed [$1500], paid to the treating physician who gives a deposition concerning causal relationship, ability to work or the need for treatment.
[N.J.S.A. 34:15-64(a).]
Here, the parties do not dispute that N.J.S.A. 34:15-64(a)(2) applies. Thus, the fees under that statute are limited to $450 for a medical report and $2 500 for the expert's testimony.
N.J.S.A. 34:15-64(c) provides that
[a] fee shall be allowed at the discretion of the judge of compensation when, in the official's judgment, the service of an attorney and medical witnesses are necessary for the proper presentation of the case. In determining a reasonable fee for medical witnesses, the official shall consider (1) the time, personnel, and other cost factors required to conduct the examination; (2) the extent, adequacy and completeness of the medical evaluation; (3) the objective measurement of bodily function and the avoidance of the use of subjective complaints; and (4) the necessity of a court appearance of the medical witness.
Here, the compensation judge failed to make findings in accordance with the factors set forth in N.J.S.A. 34:15-64(c) and, thus, this statute would not justify the imposition of actual costs.
A separate statute found in N.J.S.A. 34:15-28.2, however, does afford the compensation judge discretion to award actual costs. N.J.S.A. 34:15-28.2 provides:
If any employer, insurer, claimant, or counsel to the employer, insurer, or claimant, or other party to a claim for compensation, fails to comply with any order of a judge of compensation or with the requirements of any statute or regulation regarding workers' compensation, a judge of compensation may, in addition to any other remedies provided by law:
a. Impose costs, simple interest on any moneys due, an additional assessment not to exceed [twenty-five percent] of moneys due for unreasonable payment delay, and reasonable legal fees, to enforce the order, statute or regulation;
b. Impose additional fines and other penalties on parties or counsel in an amount not exceeding [$5000] for unreasonable delay, with the proceeds of the penalties paid into the Second Injury Fund;
c. Close proofs, dismiss a claim or suppress a defense as to any party;
d. Exclude evidence or witnesses;
e. Hold a separate hearing on any issue of contempt and, upon a finding of contempt by the judge of compensation, the successful party or the judge of compensation may file a motion with the Superior Court for enforcement of those contempt proceedings; and
f. Take other actions deemed appropriate by the judge of compensation with respect to the claim.
[N.J.S.A. 34:15-28.2 (emphasis added).]
This statute expressly allows a compensation judge to impose "costs" when a party to a compensation action "fails to comply with any order of a judge of compensation or with the requirements of any statute or regulation regarding workers' compensation." Ibid. Significantly, N.J.S.A. 34:15-28.2 lists a series of costs, fines, penalties, and other sanctions that can be imposed in the appropriate circumstances. Accordingly, N.J.S.A. 34:15-28.2 permits a compensation judge to fashion remedies when a party "fails to comply with any order." Ibid.; see also Stancil v. ACE USA, 211 N.J. 276, 293 (2012) ("the statute specifically permits the court of compensation to impose additional assessments . . . as well as fines and penalties on the carrier." (internal citations omitted)). Thus, a compensation judge is permitted to impose actual costs when warranted.
Synergy's argument that N.J.S.A. 34:15-64 cannot be superseded by N.J.S.A. 34:15-28.2 is not supported by those statutes. Neither statute refers to the other statute. Instead, the statutes can be appropriately read separately. Here, the compensation judge found that Synergy should be responsible for the medical expert's actual costs because Synergy had repeatedly failed to comply with prior orders. That finding is supported by the record and we do not find it to be arbitrary or capricious under the facts of this case. Nor is the imposition of actual costs inconsistent with the governing statutes.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION