The New Jersey Appellate Division recently rendered a decision on October 10, 2019 dealing with the quality of proofs required when filing a Med/Temp Motion or the opposition to same. While the decision is “unpublished” and therefore not binding precedent upon any court, the takeaways from the Appellate Division’s decision are useful for claims professionals and attorneys when obtaining proofs, considering proofs and ultimately submitting proofs to the court in opposition to Motion for Medical and Temporary Disability benefits.
NJ Workers’ Compensation rules provide that affidavits, certifications or medical reports may be submitted in support of, or in opposition to, a Motion for Medical and Temporary Benefits but those proofs must meet certain standards to be considered by the Court.
The Facts in CAPEL.
The underlying case, Joshua Capel v. Township of Randolph, involved a general laborer who worked for the township in the DPW. He injured himself lifting some logs on May 21, 2018 and alleged injury to the neck, back and left shoulder. The Respondent filed an Answer accepting the left shoulder and back injury but denying any injury as to the neck. The Petitioner received authorized treatment to his left shoulder. On August 14, 2018, the authorized treating physician, Dr. Sayde, recommended surgical intervention to the shoulder. The Respondent scheduled the Petitioner for a second opinion evaluation with Dr. Montgomery. Dr. Montgomery examined the Petitioner on September 17, 2018 and agreed with Dr. Sayde’s recommendation for surgery and confirmed that it was causally related to the accident. For reasons unknown other than to suggest “the claim was still being investigated”, the Respondent denied the surgery.
Petitioner’s attorney filed a Motion for Medical and Temporary Disability Benefits on October 9, 2018 and submitted an Affidavit of the Petitioner in support. He was unable to submit any medical proofs as those reports were in the exclusive possession of the Respondent (since both doctors were Respondent’s doctors) but placed language in the Petitioner’s affidavit referencing the reports as fully corroborating the Petitioner’s version of events. The Respondent’s Opposition was due on or before October 30, 2018 (21 days from the filing date) but the Respondent did not submit their opposition until November 8, 2018 (one day before the Motion was listed and 9 days late). The Respondent’s Opposition, in sharp contrast to the Petitioner’s Motion and Affidavit, did not include proper affidavits or certifications but rather included the following:
- A two-page letter submitted by the attorney filled with “uncorroborated, factual speculation and argument predicated on matters outside the personal knowledge of the submitter”. Interestingly, it also did not dispute the request for surgery.
- A “certification” provided by the adjuster which was unsigned.
- Seven “certifications” of co-workers, all unsigned and all missing the verification language required for certifications
- Signed copies of all of these “certifications” (still missing the requisite language to make them certifications in lieu of oath) were provided at the hearing
The Trial Court’s Decision.
On the hearing date for the motion, the Judge rejected the Respondent’s documents as meeting the rule requirements and essentially considered the Motion as if unopposed. In her reasoning the Judge noted that pursuant to NJAC 12:235-3.2(f), Motions for Medical and Temporary Benefits “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 Judge further indicated that certifications are permitted in lieu of affidavits as long as the language required by Court Rule 1:4-4(b) is included. This language, namely, “I certify that the foregoing statements made by me are true. I am aware that is any of the foregoing statements made by me are willfully false, I am subject to punishment” is essential because it is intended to “secure personal responsibility for sanctions if a false statement is submitted citing Sroczynski v. Milck, 197 N.J. 36, 43 (2008). The Judge ordered the Respondent to provide the surgery which should be scheduled within 10 days of the date of the Order.
The Petitioner first asked for reconsideration and when that was unsuccessful, appealed the Judge’s determination.
The Decision on Appeal.
The Appellate Court arrived at the following conclusions:
- Workers’ Compensation proceedings are governed by the Workers’ Compensation Division Rules. Rule NJAC 12:235-1.1 provides that affidavits, certifications, or medical reports may be submitted in support of, or in opposition to, a Motion for Medical and Temporary Benefits.
- NJAC 12:235-3.2(f) indicates “certifications in lieu of oath as provided in the New Jersey Rules of Court may be used for motions and any supporting documents filed with the court”
- NJ Court Rule 1:4-4(b) 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’ and have the required ‘I certify…’ language.”
- In this matter, the certifications were not signed and did not include the requisite language and therefore had no evidentiary value
The Court further concluded that a plenary hearing was not needed (the Judge made her decision based upon the Petitioner’s papers alone without a hearing or testimony) since a Motion for Medical and Temporary Benefits can prevail without a plenary hearing only if opposing documents are facially insufficient to fairly meet, contradict or oppose the material allegations of the documents in support of he motion. Since all the documents submitted were insufficient, no hearing was needed.
- Always have support for your motion or opposition, don’t just send a letter with an argument – facts must be supported by the people who have the knowledge of those facts
- Use Affidavits if possible but if you have to use certifications, use the requisite language as per Rule 1:4-4(b).
- Make sure the affidavits or certifications are signed – don’t submit them unsigned
- Adhere to timelines and deadlines – although the court did not really discuss the Respondent’s late submission of its opposition, it was a reflection of how unprepared the attorneys were (late papers, unsigned and incomplete documents, etc.)