May 11, 2009
MICHELLE A. WILLIAMS, PETITIONER-APPELLANT,
FAMILY CHOICE/ALL METRO HEALTHCARE, RESPONDENT-RESPONDENT.
On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 1999-10733.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2009
Before Judges Parrillo and Lihotz.
Appellant Michelle A. Williams appeals from an order dismissing her workers' compensations claim petitions after she failed to appear for a medical examination requested by respondent, her former employer, Family Choice/All Metro Healthcare (Family Choice or employer).
On June 24, 1998, Williams suffered a work related fall. She injured her back and experienced neuropsychiatric residuals. She filed a workers' compensation claim petition against Family Choice, which admitted compensability and provided temporary treatment benefits. Williams filed a second claim petition against Family Choice, alleging occupational exposure from August 1997 to June 24, 1998, which resulted in back injuries with neuropsychiatric residuals.
The employer requested Williams attend an independent psychiatric evaluation. She did not appear for appointments scheduled on May 2, June 18, or August 15, 2000. Consequently, the judge of compensation granted Family Choice's motion to dismiss Williams' petitions for lack of prosecution. On July 23, 2001, following her attendance at a psychiatric evaluation with Dr. Edward Tobe, Williams' motion to restore her initial petition to the active pre-trial list was granted. No request to restore her second filed petition was made.
Family Choice's carrier scheduled another evaluation of Williams for October 22, 2002. At Williams' request, the appointment was rescheduled for January 16, 2003. Williams again did not appear. Family Choice scheduled an appointment with a different doctor, but Williams did not attend. A second motion to dismiss was filed. Judge Dortch was the judge of compensation then assigned to the case. He held a hearing and Williams explained her past transportation difficulties and desire to comply with the employer's evaluation requests in the future. Judge Dortch adjourned the motion to dismiss to allow Williams to reschedule and attend a medical examination. He further warned that if she failed to do so, her case would be dismissed for lack of prosecution. Williams was also ordered to reimburse the employer fees incurred for the missed examinations from any future award she received. Williams attended the examination and the employer's request to dismiss her claim petition was denied.
The matter proceeded and permanency evaluations were scheduled. Williams appeared for a re-evaluation with Dr. David Scasta and attended an orthopedic examination on October 17, 2006. She failed to attend the follow-up evaluation scheduled for November 16, 2006. The employer filed its third motion to dismiss Williams' petition, which was granted without prejudice on January 29, 2007, by a third worker's compensation judge. N.J.S.A. 35:15-54.
Almost one year later, Williams moved for reinstatement. Williams was present and her certification expressed her difficulty in attending past scheduled appointments resulted from lack of transportation and medication taken for a major depressive disorder, which impeded her ability to remember things. The compensation judge determined Judge Dortch had impressed upon Williams the importance of attending the medical appointments. Williams' subsequent failure to attend the scheduled appointments was described as "egregious conduct." As a result, the compensation judge concluded Williams had not presented evidence of good cause and denied her motion for reinstatement and dismissed her claim petition with prejudice on March 24, 2008.
Williams filed for reconsideration. At the hearing, the judge of compensation noted the motion included two claim petitions. Counsel expressed a desire to confine the request solely to Williams' first filed claim petition, as the second petition had not been restored following the 2000 dismissal. Williams' willingness to attend the examinations if the petition was restored to the active trial list was presented. The compensation court denied the motion declaring, "I dismissed the motion today, as the motion was less than perfect referencing two claim petitions before the [c]court. I think there needs to be proper specific notice that is presented, before the [c]court can consider the motion properly." The court also identified Williams had not filed a supporting certification; the motion included only a certification of counsel. Counsel was advised to refile.
On appeal, Williams argues the judge of compensation failed to conduct a proper hearing prior to dismissing her claim petition. She maintains the remedial nature of workers' compensation legislation requires an injured employee be afforded an opportunity to testify prior to dismissal with prejudice.
The standard for appellate review of a workers' compensation judge's determination is the same as that used for review of any non-jury case. Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). Our limited review gives "'due regard . . . to the agency's expertise where such expertise is a pertinent factor.'" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
The dismissal of a claim petition for lack of prosecution is governed by N.J.S.A. 34:15-54, which provides in pertinent part:
No petition shall be dismissed for want of prosecution or for failure to formally adjourn the cause, until after notice shall be served by the respondent on the petitioner or his attorney that unless the cause is moved for hearing within one month from the date of the service thereof, the claim will be considered abandoned and the petition dismissed subject, however, to the right to have the petition reinstated for good cause shown, upon application made . . . . within one year thereafter.
"Whenever the words 'good cause' appear in statutes or rules relating to the opening of defaults they mean (in the absence of other modifying or controlling words) a substantial reason that affords legal excuse for the default." Nemeth v. Otis Elevator Co., 55 N.J. Super. 493, 497 (App. Div. 1959). We acknowledge, "while statutes relating solely to procedure should be liberally construed with a view to the effective administration of justice nevertheless [those which] take away or diminish fundamental rights must be strictly construed." Skislak v. Continental Mining & Smelting Corp., 1 N.J. 167, 170 (1948) (citing Hill v. Hill, 93 N.J. Eq. 567 (Ch. 1922), aff'd, 95 N.J. Eq. 233 (E. & A. 1923)). A litigant should be given every reasonable opportunity to have his or her day in court. However, strong public policy suggests there must be an end to litigation. Hawkins v. Harris, 141 N.J. 207, 222 (1995).
The assurance of fairness necessitates that motions to dismiss workers' compensation petitions for lack of prosecution are required to be listed for hearing. N.J.A.C. 12:235-3.3(c). "All other motions shall be disposed of on the papers, unless a Judge of Compensation directs oral argument or further proceedings, in which event a hearing shall be scheduled within 30 days from the filing of the last papers contemplated by this section." Ibid.
Following our review of the record, we find Williams' arguments unpersuasive. Although she did not testify before the compensation court on March 24, 2008, the compensation judge afforded her a hearing and sufficiently considered the facts Williams advanced to justify her past failure to attend scheduled medical appointments. The explanations stated in her certification were similar to the reasons expressed in her testimony before Judge Dortch. The compensation court found the explanations wanting. Moreover, Williams' assurances of future compliance ring hollow against her past inaction, resulting in five missed evaluations.
The record is not clear on why this matter had not yet reached trial almost nine years following the filing of her claim petitions. Nevertheless, it is certain the inability to maintain current information of Williams' medical and psychological status contributed to this delay. Williams has not demonstrated her past inaction was excusable. Accordingly, we discern no basis to interfere with the workers' compensation judge's refusal to reinstate Williams' claim petition.*fn1