Garzon v. Morris Cnty. Golf Club
| Decision Date | 23 December 2022 |
| Docket Number | A-1100-21 |
| Parties | CARMEN GARZON, Petitioner-Respondent, v. MORRIS COUNTY GOLF CLUB, Respondent-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted October 12, 2022
On appeal from the Division of Workers' Compensation Department of Labor and Workforce Development, Claim Petition No. 2017-4875.
Rawle &Henderson LLP, attorneys for appellant (Delia A. Clark on the briefs).
Victor B. Matthews, attorney for respondent.
Before Judges Messano and Gummer.
In this workers' compensation appeal, Morris County Golf Club (the Club) challenges the attorney's fee awards set forth in an October 28, 2021 order for payment. The Club contends the judge of compensation abused his discretion in issuing excessive and unsupported fee awards. We agree and, accordingly, reverse and remand.
Petitioner worked for the Club for three years, preparing and serving food. On December 15, 2016, she tripped over a box in the kitchen, injuring her neck, back, and left hand. The Club provided petitioner with temporary disability benefits from the day after the accident until December 29, 2016, when she went to Colombia for a two-week vacation. The Club did not provide temporary disability benefits to petitioner from December 29, 2016, through January 24, 2017, because "she was out of work for a personal vacation, unrelated to her work injury." The Club resumed the payments as of January 25, 2017.
In a January 26, 2017 letter, an adjuster of the Club's insurance carrier questioned petitioner's treating physician, Dr. Joseph P. Fodero, on how he could have extended his disability finding regarding petitioner when petitioner had left the country on vacation, thereby delaying any treatment she could have had during that time. The adjuster asked him to reconsider his position. Dr. Fodero responded that petitioner's vacation "had no bearing on her care" or on his recommendation, noting petitioner already had "swelling" and the Club was currently closed and unable to offer petitioner light-duty work. He suggested the adjuster was "more concerned with the fact that you would need to pay [petitioner] for the time lost, than with her treatment and well being." In a February 15, 2017 letter, the adjuster advised petitioner that Dr. Fodero was no longer authorized to treat her and that she had to seek treatment from another medical practice identified in the letter.
On February 22, 2017, petitioner filed with the Division of Workers' Compensation a claim petition based on the injuries she had suffered in the fall. In its answer, the Club denied petitioner's injuries had arisen out of and in the course of employment and denied "the nature, extent, causal relationship, and permanency of the alleged injuries."
On February 27, 2017, petitioner moved to compel the Club to pay her temporary compensation and for medical treatment of her hand. She included in her motion the adjuster's January 26, 2017 letter to Dr. Fodero. In response to the motion, the Club contended petitioner was not entitled to temporary disability benefits from December 29, 2016, through January 24, 2017, or the requested medical treatment. The Club asserted she had been "released to return to light duty work with no use of the left hand" on February 27, 2017, and had continued to receive authorized medical treatment.
On March 28, 2017, the judge of compensation began a hearing on petitioner's motion. At the beginning of the hearing, the Club admitted petitioner had suffered a work-related injury, thereby amending its answer to the claim petition. Petitioner's counsel conceded petitioner had been receiving care from a medical practice group authorized in the adjuster's February 15, 2017 letter. Petitioner's counsel stated he "wanted to be able to present proofs on petitioner's argument on fees."
During the hearing, petitioner testified Dr. Fodero had not recommended she start physical therapy before she traveled to Colombia, had approved of her travel plans, and had not discussed any treatment she would need while she was away. She also testified the Club was closed from December 24, 2016, to March 4, 2017, and that she did not expect to receive wages while she was on vacation because the Club was closed. She confirmed the temporary disability payments had resumed on February 20 or 21, 2017, before she filed her claim petition and motion.
At the end of the first day of the hearing, the judge stated he was "extremely disturbed" by the adjuster's January 26, 2017 letter and "really rather bothered when an adjuster asks the medical professional to reconsider his medical opinion, and his opinion with regard to treatment." The judge described the adjuster as "playing doctor" and considered her actions "completely inappropriate ...."
Before the hearing resumed, the parties resolved the issues presented in petitioner's motion. The parties agreed the Club would pay petitioner temporary disability benefits for the period December 29, 2016, to January 24, 2017, and would continue to authorize recommended treatment. The parties also agreed petitioner's counsel-fee application would be "deferred until the conclusion of the case." The judge approved the settlement in an April 17, 2017 order. On April 21, 2017, petitioner received a payment of $1,880.84 for the December 29, 2016 to January 24, 2017 period.
In a note dated August 23, 2018, petitioner's treating physician imposed specified "permanent" work restrictions. Because the work restrictions were "permanent," the Club immediately discontinued the temporary disability payments. According to the Club, after a December 17, 2018 conference before a new judge assigned to the case, the Club agreed to reinstate the temporary disability payments.
The Club apparently did not immediately restore the payments. On January 25, 2019, petitioner moved to enforce the April 17, 2017 order, seeking reinstatement of the temporary disability payments. The Club did not oppose the motion. It resumed making temporary disability payments as of March 1, 2019. On March 25, 2019, the Club paid petitioner $5,564.17 in past due benefits. In a June 3, 2019 compliance order, the judge confirmed the Club was "providing temporary compensation benefits" and that the "[i]ssue of fees [and] penalties on motion [would] be determined at [the] conclusion of case."
The trial began on August 9, 2021. The sole issue to be tried was "the nature and extent of permanent disability." The judge confirmed he would "deal with any fees or penalties . . . at a later date." After petitioner testified and before the trial resumed for a second day, the parties reached a resolution regarding permanency.
Petitioner's counsel submitted an affidavit and supplemental affidavit in support of petitioner's counsel-fee application. Counsel did not include in his submissions an invoice detailing the work he had performed on the case. Instead, he attached to the supplemental affidavit a document entitled "[t]ime expended relating to temporary disability issue" that contained general descriptions of twenty-five hours he had spent on the case in 2017, 2018, and 2019. In the supplemental affidavit, counsel stated "I have expended 25 hours on this matter" and asserted "if my legal time were calculated on an hourly rate, I would be entitled to $500 per hour." The Club's counsel submitted an affidavit in opposition to the application.
On October 19, 2021, the judge issued an order approving the parties' settlement of the permanency issue, granting a permanent disability award of $164,577. The judge also heard argument and rendered a decision on the record regarding petitioner's fee application and the assessment of penalties on the Club. Petitioner's counsel requested "a fair and reasonable attorney's fee for [his] efforts, but more importantly, the fee imposition to teach this respondent their conduct cannot be tolerated ...." Regarding the permanency award, the judge granted petitioner counsel fees of $32,915, equal to twenty percent of the award, and assessed the entire fee award on the Club because "it has been a struggle for [petitioner] the entire time right up until the commencement of the trial to get the protection that she's entitled to under the law under the Worker's Compensation statute."
In connection with petitioner's 2017 motion to compel, the judge faulted the Club for its adjuster's correspondence, for not seeking the court's assistance, and for engaging in "self-help" when it suspended petitioner's temporary disability benefits following her trip to Colombia. He held petitioner was entitled to "a penalty for the wrongful withholding of the temporary benefits" equal to twenty-five percent of the amount of the withheld benefits, pursuant to N.J.SA. 34:15-28.2. Instead of basing the penalty on the actual amount withheld, $1,880.84, for the period of December 29, 2016, to January 24, 2017, the judge apparently assumed petitioner had not been paid for four full weeks, which would have been $2,194.32, and awarded a penalty of $548.58. Petitioner's counsel represented the Club had paid $61,008.33 in temporary disability benefits and $329,172 in medical benefits after he filed the motion to compel. The judge approximated the total amount to be $390,000 and awarded petitioner twenty percent of that amount in counsel fees for the motion to compel, or $78,000.
In connection with the 2019 motion to enforce, the judge found the Club again had engaged in wrongful "self-help" when it stopped paying petitioner temporary...
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