Appeal from the Division of Workmen's Compensation, Department of Labor and Industry.
The petitioner was awarded compensation for increased disability and respondent appeals. Respondent raises two points -- first, that the deputy, without legal authority and without the consent of the respondent, had the petitioner examined by an expert chosen by the deputy whom he thereafter called as a witness, and the deputy based his decision in part on his testimony; and second, that the petitioner did not establish an increase of disability.
Petitioner was injured June 18, 1951, as a result of which the first, second, third and fourth fingers of his right hand were amputated. Following a formal hearing on June 4, 1952 petitioner was awarded 75% disability of the right hand and 5% of total disability for a consequent neurosis. In May 1955 petitioner filed his petition for increased disability, and hearings were held thereon October 18 and November 1, 1955, and March 14, 1956, following which the deputy made the award appealed from.
At the latter hearings petitioner produced Dr. Vincent J. Riggs, who had testified for petitioner in the 1952 hearing, and Dr. Jack Chernus. In the 1952 hearing Dr. Riggs had testified that the petitioner's disability by reason of neurosis was 12 1/2%. Now he found his disability due to neurosis to be 50%. Dr. Chernus also found his present disability due to neurosis to be 50%.
The respondent called Dr. Jack Blumberg, who had also testified in 1952, at which time he had estimated petitioner's disability due to neurosis to be 2 1/2%. Dr. Blumberg testified that in his opinion there had been no increase in that disability, and it was still 2 1/2%.
Faced with this wide discrepancy the deputy director decided to have the petitioner examined by the best impartial neuropsychiatrist he could find available for that purpose. The deputy made a very candid and interesting statement of his reasons for what he did, as follows:
"I think I would be remiss in my duty if I were to make a decision in a case when I feel insecure in making it. I feel insecure in making this decision because the medical testimony presented at the hearing of the matter was so divergent that I, as a layman, was unable to determine where the medical facts lay. I feel the duty in the Compensation Division in such a case is to find out what the facts are by whatever fair means the Division can devise which would not prejudice either party.
Because of the marked divergence between the findings and estimates of the opposing medical experts, that is, 2 1/2 per cent disability by the respondent's and 50 per cent by petitioner's medical experts. I felt that the evidence presented did not provide a basis upon which I could render a reasonable decision. I was not intellectually secure as to the medical facts. The situation called for the expression of opinion by an impartial, disinterested neuropsychiatrist, based on a complete, neuropsychiatric examination of the petitioner.
I therefore wrote to the attorneys for both parties, requesting that they have the petitioner examined by Dr. Henry Davidson, a neuropsychiatrist who had been recommended to me by the Medical Director of the Division of Workmen's Compensation. Neither attorney had any part in the choosing of Dr. Davidson. Dr. Davidson is a Diplomate of the American Board of Psychiatry; he has had ten years' experience in Workmen's Compensation practice, and seven years' experience as an examiner in disability appeals in the Veterans' Administration. * * *
Dr. Davidson testified as to the result of his examination in the presence of both attorneys. The attorney for the respondent objected to the use of an outside physician, but his objection was overruled. It is my duty to ascertain the medical facts. If there is not sufficient concurrence in the findings or estimates of disability as between the respondent's and the petitioner's experts, so as to present a reasonable basis for a decision, and if I did not attempt to learn the true medical picture, with competent supplemental information if necessary, I would be remiss in my duty.
It is my opinion and firm conviction that this Division has every right to have a petitioner examined by a competent, outside physician as a means of assisting the hearing officer to determine the true medical facts, where the opposing attorneys have the opportunity to cross examine such outside physician and when neither attorney is involved in the choosing of such physician and when the physician selected has no interest, other than a medical one, in the case."
Respondent objected vehemently and refused to cross-examine. For the purposes of this appeal it will be taken as established that the respondent objected to the appointment of Dr. Davidson from the beginning.
Respondent argues that (1) even a judge has no right to call an expert over the objection of counsel, and (2) assuming a judge has that right, a deputy does not, because he is not a "judge" and the Workmen's Compensation Division is not a "court."
For the decision of this case, it is unnecessary to decide each and every respect in which a deputy is like or unlike a "judge," and the Division like or unlike a "court." For present purposes it is sufficient to note that the Division is a fact-finding tribunal, and the deputy a trier of fact. The deputy, like the judge sitting without a jury, is seeking the truth, and to find it he is empowered to do all that a judge sitting without a jury may do. Indeed, it has been argued that those who sit in administrative tribunals may do even more than a judge. Davis, "Evidence in the Administrative Process ," 55 Harv. L. Rev. 364 (1942). For example, the deputy is not bound by the rules of evidence. R.S. 34:15-56; Scalise v. Uvalde Asphalt Paving Co. , 98 N.J.L. 696 (Sup. Ct. 1923). And R.S. 34:15-50 provides that under certain circumstances, "if no petition is filed by the injured employee * * * the bureau may institute an inquiry on its own motion, to determine the reasons for the failure to agree as to compensation, and may * * * with the consent of the injured employee * * * file a petition for compensation. When such petition is filed by said bureau, on its own initiative, the subsequent proceedings shall be the same as * * * where the claimant files a petition." Cf. Krauss v. A. & M. Karagheusian , 13 N.J. 447, 457 (1953).
Wigmore said "* * * the general judicial power itself * * * implies inherently a power to investigate as auxiliary
to the power to decide; and the power to investigate implies necessarily a power to summon and question witnesses." 9 Wigmore on Evidence (3 d ed.), § 2484, p. 267. Respondent replies that even if a judge has that "inherent" power, a deputy has no "inherent" power, but only those powers expressly given him by the Workmen's Compensation Act.
No basis in reason is offered for the distinction and I can see none. The deputy has "exclusive original jurisdiction" to hear and determine the facts in workmen's compensation cases, R.S. 34:15-49. The Division is the trial tribunal (if we are to avoid the word "court") in these cases. No other tribunal hears and sees the witnesses. Appeals are based "exclusively" on the record made before the deputy (R.R. 5:2-5(d)), and for that reason the appellate tribunals give the findings of the deputy great weight. If the deputy does not have the power "to investigate as auxiliary to the power to decide" which, as Wigmore said, "implies necessarily a power to summon and question witnesses," then no one has that power in workmen's compensation cases.
Since the whole scheme of the Workmen's Compensation Act is thus based upon the expectation that the deputy will, so far as a fact-finding tribunal devoted to justice can, find the truth, no construction should be adopted, unless clearly compelled, which would give the deputy fewer powers with which to find the truth than those possessed by a trial judge.
What, then, are those powers of the trial judge? Specifically, may a trial judge, under similar circumstances, call an expert as a witness over the protests of the parties?
It is argued that there is no New Jersey case squarely holding that a trial judge may do so. Perhaps that is so. In Morrone v. Morrone , 44 N.J. Super. 305 (App. Div. 1957), the court appointed "his own" handwriting expert, but whether that was opposed by the parties does not appear, and no point was made of it on appeal.
An interesting early case is Newark Plank Road & Ferry Co. v. Elmer , 9 N.J. Eq. 754 (E. & A. 1855), in which complaints sought an injunction to abate a nuisance created by ...