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Bolger v. Chris Anderson Roofing Co.

Decided: November 23, 1970.

THOMAS BOLGER, PETITIONER-RESPONDENT, CROSS-APPELLANT
v.
CHRIS ANDERSON ROOFING CO., INC., RESPONDENT-APPELLANT, AND CROSS-RESPONDENT, AND BELAFSKY ROOFING CO., CONCRETE PLANT, NATIONAL ROOFING CO., HARTFORD ROOFING CO., PARK ROOFING CO., ATLAS ROOFING CO., ARCO ROOFING CO., AND REMIG ROOFING CO., RESPONDENTS AND CROSS-RESPONDENTS



Yanoff, C.c.j. (temporarily assigned).

Yanoff

This is an appeal from the Division of Workmen's Compensation, in which an award of 100% of total was made for cancer of the lung, allegedly caused by petitioner's employment as a roofer. Both procedural and substantive issues are involved.

The facts which raise the procedural issues are as follows: In August 1969 petitioner filed 14 petitions seeking relief for injury caused by his employment as a roofer. The only petition contained in the file on appeal, that against Chris Anderson Roofing Company (Anderson), alleged an occupational disease but did not specifically mention a cancerous condition. Anderson was petitioner's last employer; the other 13 were prior employers. On December 4, 1969, pursuant to N.J.S.A. 34:15-64, Judge Bonafield ordered that petitioner's depositions be taken at the Veteran's Administration Hospital in Orange, New Jersey. The affidavit on file indicates that notice was given by both mail and telephone. The depositions were taken on December 9. Counsel for Anderson was present.

On March 30, 1970 Judge Bonafield wrote a letter to all counsel stating:

Be advised that these 14 cases will be tried by me on Wednesday, April 29, 1970. There will positively be no adjournments granted. In the event you are engaged in another court it will be necessary to have someone here to represent your interest because these cases must be moved on the trial date thereof. If any examinations are deemed necessary by you then you are to make the arrangements for the examination and have them completed prior to the trial date. If the examinations are not completed they will be deemed waived. In the event of a no appearance a default judgment may be entered against you.

At the hearing on April 29, 1970 the only testimony produced was on behalf of petitioner. Dr. Saul Lieb, petitioner's internist, was the sole medical witness. However, two of the respondents introduced in defense the medical report of Dr. Jack S. York. When petitioner's case was concluded, Anderson's attorney strenuously requested an adjournment, stating that he had not had adequate time to prepare his case. In support of his position he stated that petitioner had made, and not kept, an appointment with a physician selected by him. The request was denied. Judge Bonafield then rendered an oral decision holding Anderson, the last employer, liable for the total award, on the authority of Bond v. Rose Ribbon and Carbon Mfg. Co. , 78 N.J. Super. 505 (App. Div. 1963), aff'd 42 N.J. 308 (1964). Counsel for respondent appeals, alleging an abuse of discretion on the part of the compensation judge.

Although the award was in the amount of $30,800, petitioner's attorney was allowed a counsel fee in the sum of $1,500. Petitioner cross-appeals. The main thrust of the cross-appeal is that the attorney should have been granted a larger fee. Some of the other 13 employers cross-appeal for protective reasons.

Thus, both petitioner and respondent allege abuse of discretion below and seek corrective action from this court. Normally, in a workmen's compensation appeal the County Court is obliged to bring "its own new mind to the weighing of the testimony uninfluenced by the opinion and conclusions of the Judge of Compensation." MacDonald v. Hudson Bus Transp. Co., Inc. 100 N.J. Super. 103: 106 (App. Div. 1968); sic: Stallone v. Schiavone-Bonomo Corp. 103 N.J. Super. 170 (App. Div. 1968), certif. den. 53 N.J. 226 (1969); Handleman v. Marwen Stores Corp. , 99 N.J. Super. 416 (App. Div. 1968), certif. granted 52 N.J. 496 (1968); rev'd 53 N.J. 404 (1969); Szumski v. Dale Boat Yards, Inc. 48 N.J. 401 (1967). However, the question involved in this aspect of the case is not a weighing of testimony, but whether the conduct of the judge below

amounted to an abuse of discretion. In the court's judgment, the standard enunciated by the cited and other cases is not applicable thereto.

An appellate court reviewing the conduct of a trial judge does not substitute its own discretion for that of the trial court in determining whether there has been an abuse of discretion. In Schuttler v. Reinhardt , 17 N.J. Super. 480 (App. Div. 1952), the court said:

We would emphasize that it is only in the exceptional case that a discretionary act will lead to a reversal. The circumstance that the appellate judges, had they been presiding at the trial, would have made a contrary ruling, is far from enough to bring about a reversal. [at 485]

The principle deduced from the cases is that only in a clear case, where a party has been adversely affected, will there be a reversal as to discretionary matters, unless there is an erroneous application of the law. Scott v. Garber , 82 N.J. Super. 446, 451 (App. Div. 1964): 5A C.J.S.: Appeal & Error ยง 1583 at 25. The rule applies both as to the time of trial (see Fotopak Corp. v. Merlin , 34 N.J. Super. 343 (App. Div. 1955)); Lilly v. Todd , 15 N.J. Super. 1 (App. Div. 1951) and allowance of counsel fees. Wiedenmayer v. Johnson , 106 N.J. Super. 161 (App. Div. 1969), aff'd 55 N.J. 81 (1969).

There is no reason why this principle should not apply in a review of discretionary action by the Division of Workmen's Compensation.

In Mulhearn v. Federal Shipbuilding and Dry Dock Co. , 2 N.J. 356, 359 (1949) former Chief Justice Vanderbilt, while concluding that the Division of Workmen's Compensation was not a court, detailed the many attributes of a court in the conduct of hearings before the Workmen's Compensation Bureau. By statute the Division has power to make its own rules for the conduct of hearings. N.J.S.A. 34:15-64. ...


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