On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 98-038133.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Waugh.
Petitioner Christine Gillespie appeals from three orders of the Division of Workers' Compensation (Division). We affirm as to one order and dismiss the appeal as to the remaining orders.
We discern the following facts and procedural history from the record. We set forth only the information necessary for the disposition of the issues before us.
Gillespie was a schoolteacher employed by respondent Newark Public Schools (Newark) as a "Language Arts Staff Developer." On September 4, 1998, Gillespie was injured as she was shelving books when "[the bookshelf's] contents fell down upon her, knock[ed] her to the floor . . . [and] gash[ed] her head." On November 20, 1998, she filed a workers' compensation claim in which she alleged that she had "sustained an injury . . . compensable" under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -69.3, because the "accident ar[ose] out of and in the course of [her] employment." On March 5, 1999, respondent filed an answer, denying petitioner was "in the course of employment" at the time of her injuries.
During the ten years following the filing of Gillespie's claim, there was extensive motion practice concerning her eligibility for compensation and medical treatment under the Act, as well as the identity of medical practitioners who could provide treatment. During the course of that motion practice, Gillespie filed a motion seeking the recusal of the judge of compensation assigned to her case. The motion was apparently denied.
In or about September 2008, Newark moved to dismiss the compensation petition for lack of prosecution. Gillespie opposed the motion. The judge granted the motion, but his order provided that the matter could be reinstated if Gillespie submitted to certain surgery by a physician named in the order. Rather than appealing that order, Gillespie wrote to the Commissioner of the New Jersey Department of Labor, which includes the Division, asking that the judge and his decision be investigated. She wrote to the Commissioner a second time, and sent a copy to the Division Director, who is the chief judge of compensation. In the interim, the judge who entered the dismissal order had retired.
The chief judge of compensation treated Gillespie's second correspondence as a pro se application for reinstatement, and assigned it to another judge of compensation for disposition. When Gillespie did not appear personally on March 30, 2009, the new judge adjourned the motion and entered an order requiring Gillespie to appear on May 11, 2009. It appears from the record that the judge wanted Gillespie to be at the hearing so that she could directly ascertain Gillespie's position with respect to the disputed surgical procedure that had led to the December 2008 order of dismissal.
In a March 31 letter forwarding the order implementing the March 30 adjournment, the judge directed counsel for Newark to provide her with written assurance, prior to the adjourned date of the hearing, that Newark was still willing to have Mark McBride, M.D., perform the proposed surgery on Gillespie and that McBride was still willing to do so. She also requested information concerning McBride's qualifications. She further directed Gillespie's then counsel to provide "a letter executed by [his] client that she will submit to the surgery to be performed by Dr. McBride." The judge asked for "a firm date for (pre-surgery) consultation . . . scheduled with Dr. McBride on the return hearing date," so counsel for Newark could verify the availability of the surgery at the hearing.
The March 31 letter concluded with the following, addressed to Gillespie's then counsel: "Lastly, I have been advised that [Gillespie's husband] may have been tape recording the entire proceeding on the record without court knowledge or permission. I advise you . . . to review the court rules in this regard." Gillespie's husband, a member of the Bar who was not representing his wife at the time, became counsel of record in December 2009.
Shortly before the May 11 hearing date, Gillespie wrote to the judge stating that she did not wish to proceed with the motion to reinstate.*fn1 Gillespie's counsel appeared on May 11, without his client, and confirmed that Gillespie wished to withdraw the application for reinstatement. Although Newark sought to have the motion ...