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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...