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Kernan v. State

Superior Court of New Jersey, Appellate Division

June 19, 2013

AUDREY KERNAN, Petitioner-Appellant,
STATE OF NEW JERSEY, Respondent-Respondent.


Argued January 28, 2013

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2011-30401.

Raymond P. Shebell argued the cause for appellant (Shebell & Shebell, LLC, attorneys; Mr. Shebell, of counsel and on the brief).

Stephanie L. Meredith, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Ms. Meredith, on the briefs).

Lynne P. Kramer, General Counsel, argued the cause for amicus curiae New Jersey Advisory Council on Safety and Health.

Before Judges Sabatino and Maven.


Appellant Audrey Kernan (petitioner) appeals the April 3, 2012 decision of the Division of Workers' Compensation (Division), which denied her motions for recusal and change of venue, as well as dismissed with prejudice her claim petition for medical benefits arising from an alleged work-related automobile accident. For the reasons that follow, we affirm.

Petitioner had been an administrative supervisory judge for the Division since 2009. The record indicates that at the time of her accident, petitioner was one of four administrative supervising judges in the Division. She supervised the Atlantic City, Bridgeton, Camden and Toms River offices. Her duties entailed direct supervision of the supervisory judges in her vicinages, as well as general oversight of all court operations and judicial activities in these regions. Her primary office location was Atlantic City, but she was afforded three days every three weeks to visit the other regional offices. On August 31, 2011, petitioner sent an email to her immediate supervisor, the Director and Chief Judge of the Division (the Chief Judge), and the Supervising Judge of the Camden vicinage (the Camden Supervising Judge), the latter whom she herself supervised, advising them that she would conduct an office visit in Camden on September 13, 2011.

On September 13, 2011, at approximately 8:05 a.m., while driving her vehicle en route from her Ocean City home to the scheduled Camden site visit, petitioner was involved in a motor vehicle accident in Egg Harbor Township in Atlantic County. According to petitioner's testimony, she swerved off the road and struck two poles, in order to avoid a head-on collision with an unidentified vehicle that had come across the roadway.[1] Her medical proofs indicate that she sustained severe injuries, including head trauma, post-concussion syndrome, vertigo, cervical radiculopathy, lumbar radiculopathy, myofascial pain syndrome, neurological pain syndrome, and a sleep disorder.

Petitioner subsequently took a medical leave of absence from the Division. The administrative supervisory judge from New Brunswick assumed petitioner's job responsibilities in addition to her own.

On November 11, 2011, petitioner electronically filed a claim petition for workers' compensation benefits, alleging that her injuries were sustained by an accident arising out of and in the course of her employment, thereby compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128. In its answer, the State denied that petitioner sustained a compensable accident or occupational exposure arising out of and in the course of her employment with the Division and thus denied that she was legally entitled to payments of temporary or permanent disability benefits. Petitioner filed a motion for temporary and/or medical benefits for payment of her treatment expenses on December 15, 2011, which the State also opposed.

The Division removed the matter from Atlantic City to New Brunswick. According to the State, petitioner's case was transferred out of the region she supervised to avoid having it heard by any of her subordinates. Instead, the Division arranged to have the case heard by another administrative supervising judge having petitioner's same level of authority.

Prior to the February 15, 2012 hearing, petitioner moved for a change of venue back to Atlantic City and for the hearing judge's recusal. As to the latter point, petitioner raised concerns that the hearing judge had a conflict of interest because she reported directly to the Chief Judge and now supervised the Camden Supervising Judge, both of whom petitioner was calling as witnesses. Petitioner also raised concerns that the hearing judge had personal knowledge of her circumstances, having taken on petitioner's regional supervisory duties after the accident.

At the outset of the February 15, 2012 proceeding, the hearing judge heard argument regarding petitioner's venue and recusal motions. The hearing judge denied the motions, stating that she could make a decision that was "true, equitable and impartial." The hearing judge then received the testimony of petitioner and her two witnesses; the State did not present any witnesses.

On April 3, 2012, petitioner's claim petition was dismissed with prejudice and her motion for temporary and/or medical benefits was denied. In her oral decision, the hearing judge found that petitioner had failed to meet the requisite burden of proof of a compensable work-related injury. In particular, the hearing judge concluded that petitioner did not ...

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