On appeal from the Division of Workers' Compensation, Department of labor and Industry.
Petrella, Gaynor and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
The employer appeals from an award of $690 in favor of petitioner based on a finding that petitioner had suffered a permanent disability of 6% of the left hand in a work related accident. We reverse because we believe that the employer was unduly deprived of certain fundamental procedural and substantive rights during the contested formal proceedings conducted below.
On January 9, 1981 Fredy Paco was accidentally injured while assisting in the operation of a leather softening machine. At the time he was employed by the American Leather Mfg. Co. (American). Shortly after the accident, Paco was taken to see the company doctor, Harold Fischer. Dr. Fischer took x-rays, prescribed medication and administered a whirlpool to Paco which continued for about two or three more weeks. During this time Paco missed work for some two weeks and two days.
A formal hearing was requested which commenced on October 21, 1985. After Paco testified, the compensation judge noted that this case involved the type of injury that is normally handled as an "informal" pursuant to the Rules of the Division of Workers' Compensation. He therefore ordered counsel to submit into evidence the medical reports of the doctors who had examined Paco and concluded that he would decide the issue on the basis of Paco's testimony and the medical reports. American's trial attorney strenuously objected to this, arguing that it may wish to produce witnesses from Paco's current job to describe the dexterity with which he performs his work. He asserted that this evidence was directly related to the contested issue of permanency of the alleged disability. He also argued that American had reserved its right to cross-examine Paco's medical witnesses and expressed his intention to produce live medical testimony. Despite the objection, the judge proceeded to determine the matter on the basis of the petitioner's testimony and the medical reports, concluding that he had sufficient objective medical evidence pursuant to N.J.S.A. 34:15-36 to substantiate the award. Accordingly, he granted an award to Paco in the amount of $690.
After American filed its notice of appeal the compensation judge supplemented his oral decision by letter in which he noted that,
[t]his case underscores a conflict between the principle that the Workers' Compensation Act, as remedial legislation must be construed liberally in favor of injured workers' and the rights of a party in a worker's compensation case to confront and cross-examine an expert witness, as expressed by the Appellate Division in Vaughan [Vaughn] v. State of New Jersey, 151 N.J. Super. 251 (App.Div.1977).
The judge reasoned that in workers' compensation cases in which the petitioner's award will be small, it would contravene the spirit and purpose of the Workers' Compensation Act to require the petitioner to bring in a medical witness who would probably charge between $500 and $750 to testify. He further reasoned that the "employment of such a procedure comports with the trend in the law of evidence toward a relaxation of the
hearsay rule in civil cases having a relatively small dollar value viz EVID.RULE 2(2) (as amended July 1, 1983)." Hence, he expounded his position that American's right to present and cross-examine witnesses was outweighed by practical considerations of time and money.
American raises several issues on this appeal,
Point I The findings of the judge of compensation are not based upon sufficient credible ...