On appeal from Department of Labor and Industry, Division of Workmen's Compensation.
Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.
At issue in this appeal is whether appellant had the right to intervene in a workers' compensation case. The facts which form the foundation for this appeal are clear.
Shortly after midnight on October 31, 1973 petitioner, along with appellant Byron T. Shannon and a third person, all employees of Shannon Outboard Motor Sales, Inc., were returning from a boat show they had attended. Appellant was driving the vehicle and ran into a pole or poles along the highway. Petitioner allegedly sustained personal injuries.
Petitioner filed a negligence action in Camden County Superior Court on April 2, 1975 against appellant, and subsequently also filed a petition with the Division of Workers Compensation, seeking an award under the Workers Compensation Act, N.J.S.A. 34:15-1 et seq. , from his employer, Shannon Outboard Motor Sales, Inc. On or about April 28, 1977 appellant filed a motion seeking to intervene in the workers' compensation case. The motion was denied on June 17, 1977. The order recited that no one appeared in support thereof. However, later, in response to appellant's protest that he had not been notified of the date of the argument on his application, the judge wrote appellant's attorney and stated that "there is no statutory or administrative rule * * * for the intervention." Apart from counsel's expressing his
chagrin at the alleged discourtesy in the failure to notify him of the argument date, the argument is based solely on the correctness of the judge's denial of the motion for the reason that there was no authority to permit intervention.
On September 9, 1977 petitioner's claim petition was dismissed by the compensation judge on the representation of petitioner's attorney (with petitioner's express consent) that petitioner "cannot prove his compensability claim and therefore has agreed to a discontinuance."*fn1 Notice of appeal was filed on October 19, 1977.
In support of the motion to intervene appellant's attorney submitted a certification which generally recited the facts surrounding the accident -- that petitioner and appellant were co-employees and that:
Byron T. Shannon possesses an interest relating to the Workmen's Compensation claim which has been filed on behalf of Ronald D. Witt. Byron T. Shannon is so situated that the disposition of the action may well impair or impede his ability to properly defend the action instituted in the Superior Court of New Jersey, Law Division. Byron T. Shannon's interest can adequately be represented only by intervening in the Workmen's Compensation action and by being heard on the issue of compensability. Whether or not the accident is compensable under the Workmen's Compensation Statutes of the State of New Jersey will decide whether or not the action is maintainable in the Superior Court of New Jersey. Since the determination of the Workmen's Compensation Court will have a direct effect upon the companion action, the rights of Byron T. Shannon will definitely be prejudiced unless he is permitted to intervene and be heard on the issue of compensability. Clarke v. Brown , 101 N.J. Super. 404 (Law Division, 1968): Government Security Co. v. Waire , 94 N.J. Super. 586 (App. Div. 1967), [certif. den. 50 N.J. 84 (1967)]
Neither of the recited cases is applicable in that the first involved an application to intervene in an action pending in the Law Division of the Superior Court and the second
involved an application to intervene in an action pending in the Chancery ...