Geaney: Dismissal Violates Petitioner's Due Process Rights

Tuesday, May 19, 2020 | 1

In the past few years, there have been several unreported cases in which the Appellate Division has found a violation of the due process rights of a respondent. McGory v. SLS Landscaping presents the first reported case in many years on the violation of a party’s due process rights — in this case, the rights of the petitioner.

John H. Geaney

The facts of this case are very unusual. Petitioner fractured his foot jumping from a loft on the premises of respondent after retrieving a bucket. Petitioner, a young man, refused medical treatment offered by his supervisor, Nicole Caruso. He later went to the hospital and sent a text message to Caruso stating that he would use his personal health insurance because he felt that the accident was his own fault. 

At the hospital, petitioner was asked how he hurt his foot, and he said he fell off a roof cleaning the gutters at home. In his affidavit in support of his motion for benefits, petitioner explained that he misrepresented the truth partly because he did not understand workers’ compensation and partly because he feared negative consequences at work for his conduct in jumping rather than using the ladder. 

According to his affidavit, when petitioner got home he discussed the accident with his parents, who explained how workers’ compensation worked and advised him to accurately report what happened. He then tried to contact the medical provider to correct their records. Respondent initially authorized care by a local surgeon, but later respondent denied the claim when it received medical records stating that petitioner injured himself at home. 

At the first hearing on April 17, 2019, on a motion for medical and temporary disability benefits, the judge of compensation asked whether respondent would be filing a fraud motion to dismiss the case. Defense counsel answered in the negative. The judge advised the parties that petitioner had a right to remain silent in the event of any fraud allegations. The judge noted that petitioner counsel’s moving papers might constitute a prima facie case, and he advised respondent to produce its witnesses.

Respondent’s first witness was Sam Waddell, the owner of the company. He said he was not on the premises at the time, but his manager notified him by phone that petitioner jumped off the loft instead of descending a ladder. The manager tried to persuade petitioner to see a doctor but petitioner declined. Ms. Caruso testified next that she heard the sound of the impact on the ground but did not actually see petitioner jump. She observed petitioner was in a great deal of pain and offered him medical care, which he declined. Caruso completed an accident form.

The matter was adjourned until May 29, 2019, after the judge noted that he did not understand why petitioner had jumped and considered whether this might constitute horseplay. The day before the May 29 hearing, respondent’s counsel filed a motion to dismiss for failure to sustain proofs. 

The judge reconsidered whether the case constituted fraud on the part of petitioner. The judge also questioned whether petitioner misrepresented that he was going to use his own personal medical insurance when his insurance was actually provided by Medicaid. The judge commented that it was not honest for petitioner to claim he was using his own insurance when it was taxpayer-funded. 

Without any testimony by petitioner, the judge noted that petitioner had misrepresented the facts to the medical providers in stating that he had been injured cleaning his gutters at home and misrepresented having his own health care insurance. The judge dismissed the claim petition without prejudice, commenting that petitioner was a multiple liar. The judge further said to counsel for petitioner, “If you can prove to me he’s honest, you can begin to present your case. If you cannot prove to me he’s honest, then under the circumstances the motion to restore is questionable.”

Petitioner did not file a motion to restore the case and instead authorized his attorney to file a notice of appeal with the Appellate Division. The judge scheduled the matter for another hearing on June 19, 2019. Counsel for petitioner argued that there was no basis for further proceedings, since the case had been dismissed on May 29, 2019, and no motion to restore had been filed. Petitioner was in court and was ready, nonetheless, to testify. The judge would not permit any testimony by petitioner because no motion to restore had been filed. 

On July 9, 2019, petitioner filed a notice of appeal of the May 29, 2019, dismissal without prejudice. On July 10, 2019, the judge of compensation conducted the final hearing. Petitioner’s counsel indicated that his client would not testify, since the notice of appeal had already been filed.

The judge then ruled on the case and the motion, dismissing both with prejudice and stating that petitioner’s conduct in jumping from the loft was not compensable, as it constituted willful misconduct.

On appeal, petitioner argued that his client had been denied his due process rights to testify and present evidence supporting his claim. The Appellate Division agreed, adding that there was no requirement that a petitioner prove he is honest before giving testimony. 

The court observed, “We have held that, in accordance with due process principles, the opportunity to be heard ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.'” 

The court added, “The judge also erred by making credibility determinations and findings of fact on the merits of petitioner’s claims based solely on the judge’s interpretation of petitioner’s affidavit, without hearing petitioner’s testimony and after only hearing Caruso’s and Waddell’s testimony.” 

Finally, the court criticized the judge for stating that the petitioner’s case did not rise to the level where consideration of the evidence was necessary. 

As a side matter, the court also observed in a footnote that the May 29, 2019, order dismissing the claim petition was an interlocutory order because there was still an opportunity to restore the claim petition, citing Scalza v. Shop Rite Supermarkets.

The Appellate Division reversed both the order to dismiss without prejudice and the order to dismiss with prejudice. The court remanded the case for further proceedings with a different judge.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.