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Waters v. Island Transportation Corp.

Decided: January 12, 1989.

CHERYL WATERS, PETITIONER-APPELLANT,
v.
ISLAND TRANSPORTATION CORP., RESPONDENT-RESPONDENT



On appeal from Decision of the Division of Workers' Compensation.

Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

Petitioner Cheryl Waters appeals from the determination of the judge of compensation dismissing her dependency claim petition for failure to sustain the burden of proof. We find petitioner's procedural due process rights violated and reverse.

Waters' dependency claim petition was filed October 27, 1983, alleging that Waters' decedent Paul T. Waters suffered a heart attack related to his employment with respondent Island Transportation Company and subsequently died. Waters claimed her dependency and that of her four children, all under the age of

eighteen. Island filed an answer denying compensability. Following the exchange of answered interrogatories on the issue of causal relationship and dependency, the matter was pretried on June 24, 1985. The pretrial order listed Waters' medical expert as Herbert B. Silberner. Island apparently did not have a medical expert and the pretrial memorandum simply indicates, "To be supplied."

Testimony commenced before the judge of compensation on December 9, 1985, and was thereafter continued to February 3, 1986. At the conclusion of testimony on the latter date, the judge opined, "one admonition, next time I want all the lay testimony in. I don't want this to drag out with a witness a month program. Let's finish it up."

The procedural history then indicates that following the February 3, 1986 hearing, the attorney for Island requested several adjournments because Island and its representatives failed to cooperate and appear for scheduled hearings. Counsel for Waters appeared on each occasion. Island's insurance carrier then went into bankruptcy and further prosecution of the case was delayed. After several months, on August 8, 1986, Waters' counsel wrote to the Director of the Division of Compensation seeking a status report. Chief Judge Napier responded and forwarded a letter inquiry to New Jersey Manufacturers Insurance Company (NJM). When this letter went unanswered, Waters' counsel again wrote to NJM who responded on October 24, 1986, indicating that the case would be listed on NJM's list in the usual course. On February 11, 1987, the matter was listed on the compensation judge's list as partial # 1; however, it was not moved since NJM wanted additional records. On April 22, 1987, Waters was finally able to continue with the presentation of her witnesses. The matter was recycled for May 13, 1987, however, NJM indicated its expert Dr. Burke was not available and the matter was adjourned.

As of this date Island inexplicably had not produced its expert report, although frequently promised. On April 22,

1987, a representative of NJM advised that the report of Dr. Burke would be forwarded prior to the next scheduled hearing. Waters' counsel was promised that Island would inform him by telephone exactly when Dr. Burke would appear. The matter was relisted for June 3, 1987, however, the promised telephone call was not made and the report was not supplied. Since the report is dated April 27, 1987, no excuse appears for counsel's failure to supply it or for the compensation judge's tacit sanction of this egregious conduct. Island had all of Waters' medical evidence while Waters had nothing.

On June 3, Waters' counsel, who appeared at each prior listing and who actually tried the proceedings to that date, was required to attend Superior Court ordered depositions involving nurses, doctors and five attorneys. Since Island's counsel*fn1 had failed to give notice of Dr. Burke's time of appearance and had not supplied his report, trial counsel sent his associate who, unfamiliar with workers' compensation practice and procedure, appeared in the court house building at 8:50 a.m. and waited in the hall. He apparently stepped into the assigned judge's court room moments after the call of the list began. Waters' case was called and he remained in the court room.

The novice associate explained trial counsel's dilemma but was denied a postponement and ordered to proceed. This was the first postponement requested by Waters from December 1985 to June 1987. Waters' trial counsel telephoned the judge and urged him to reconsider the denial of the requested continuance. He emphasized his need to review the physician's report and conduct the critical cross-examination. The trial judge was unyielding and directed the proceeding to continue. He then allowed Dr. Burke's medical testimony and after completion of the direct and cross-examination of the physician, permitted trial counsel's associate to place on the record his objections to the proceedings including the fact that he received the April 27,

1987 medical report only moments before Dr. Burke's direct testimony ...


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