On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2006-7376.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2011
Before Judges Grall and Skillman.
Petitioner appeals from the part of an order for judgment of the Division of Workers Compensation, entered on December 9, 2010, which awarded her 50% partial, permanent disability rather than the 100% permanent total disability that she sought. Petitioner argues that the proceedings before the Division denied her due process of law and a fair determination of her compensation claim and that the judge of compensation's decision is not supported by sufficient credible evidence. We reject both arguments and affirm the judgment of the Division of Workers Compensation.
Petitioner's due process argument is based on her allegation that the judge of compensation expressed an opinion at a settlement conference conducted before the end of the hearing that her testimony in support of her claim of total and permanent disability lacked credibility. The only evidence that the judge of compensation expressed such an opinion is a letter dated December 8, 2010 from petitioner's counsel to petitioner, which stated:
I advised you that following your testimony I conferenced your case with the Judge, the attorney representing Christian Healthcare Center and the attorney representing the Second Injury Fund. The Judge did not believe that you were totally and permanently disabled and suggested that we attempt to work out a settlement.
This letter is obviously not competent evidence of what the judge of compensation may have said during the course of the settlement conference.
Moreover, although we consider it undesirable for any judge, including a judge of compensation, to express his or her tentative views concerning the credibility of a witness before the conclusion of the trial, because it may create an impression to the litigants of prejudgment of the case, this does not constitute a denial of due process, so long as the judge's statement is based exclusively on the evidence presented at trial. See Sinahopoulos v. Villa, 92 N.J. Super. 514, 517-18 (App. Div. 1996). We also note that the only additional evidence presented after the judge of compensation's alleged tentative expression of her views regarding petitioner's credibility were medical reports, some of which were corroborative of the judge's views.
Our review of a judge of compensation's factual findings is limited to determining "'whether the findings could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,] . . . and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Thus, we must defer to the judge of compensation's finding that petitioner's testimony concerning the extent of her disability was not credible. Moreover, the judge's assessment of petitioner's credibility was supported by Dr. Effron's medical report, admitted into evidence with petitioner's consent together with the other medical reports in the case, which concluded that petitioner was exaggerating her symptoms from the injuries suffered in her July 27, 2005 accident. The judge of compensation's findings regarding petitioner's credibility provided an adequate foundation for her ultimate conclusion that petitioner sustained a 50% partial, permanent disability, and not 100% permanent total disability, as a result of that accident.
© 1992-2011 VersusLaw ...