McGory v. SLS Landscaping

• Decision Date: 08 May 2020
• Docket Number: DOCKET NO. A-4837-18T2
• Citation: 463 N.J.Super. 437,232 A.3d 516
• Parties: James P. MCGORY, Petitioner-Appellant, v. SLS LANDSCAPING, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

463 N.J.Super. 437

232 A.3d 516

James P. MCGORY, Petitioner-Appellant,

v.SLS LANDSCAPING, Respondent-Respondent.

DOCKET NO. A-4837-18T2

Superior Court of New Jersey, Appellate Division.

Argued telephonically March 23, 2020

Decided May 8, 2020

Edward J. Magram argued the cause for appellant (Smith Magram Michaud Colonna, PC, attorneys; Edward J. Magram, Burlington, on the briefs).

Brian O. Sumner argued the cause for respondent (German, Gallagher & Murtagh, PC, attorneys; Yana N. Shapiro, of counsel; Brian O. Sumner, on the brief).

Before Judges Ostrer,¹ Vernoia and Susswein.

The opinion of the court was delivered by

VERNOIA, J.A.D.

Petitioner James P. McGory filed a workers' compensation claim petition alleging he fractured his right foot when he jumped from a loft while working for respondent SLS Landscaping at respondent's premises. Petitioner appeals from a May 29, 2019 order dismissing his claim petition without prejudice and a July 10, 2019 order dismissing the petition with prejudice. Based on our review of the record, we are convinced the orders were entered in error, and we reverse.

I.

Petitioner's arguments on appeal center on his claim the judge of compensation violated his procedural due process rights and applicable procedural rules by entering the dismissal orders. Our summary of the pertinent facts therefore focuses on the proceedings before the judge. Petitioner's Claim Petition and Motion For Medical and Temporary Disability Benefits

In response to petitioner's claim petition, respondent filed an answer denying petitioner's injuries arose out of and in the course of his employment. Respondent asserted petitioner suffered his injuries while jumping off a ladder at his home.

Petitioner also filed a motion for medical and temporary disability benefits supported by his affidavit explaining that, while working for respondent at its premises, he jumped from a loft after retrieving a bucket and immediately felt pain in his right foot. Petitioner further stated he refused medical treatment offered by his supervisor, Nicole Caruso, because he was embarrassed and thought if he put ice on his foot his injury "would be better." He asserted he returned home; realized his injury was more serious than he first believed; and sent a text message to Caruso advising he was going to the hospital, the incident was his fault, and he was "going to use [his] personal health insurance." Caruso thanked him for the "update" and requested he "[k]eep [her] posted."

Petitioner also stated he went to two health care providers, an urgent care center and then a hospital, and reported to each he "injured [his] foot when [he] fell off a roof while cleaning gutters at [his] home." Petitioner said he made those reports because he feared if he reported he was injured at work, he might "face punishment at [his] workplace," and he lacked "understanding of [w]orkers' [c]ompensation insurance or [his] rights in that regard." He noted that when he told Caruso he intended to use his personal health insurance, "she did not advise [him] that to do so was improper." The medical care providers' examinations revealed a fracture of petitioner's right foot.

In his affidavit, petitioner further detailed that, after returning home from the hospital, he told his parents he misinformed the medical care providers about the cause of his injuries, and his parents explained "how [w]orkers' [c]ompensation works" and told him he should have accurately reported what occurred. Petitioner said he told respondent what occurred and "contacted both medical facilities to correct [his] record." Petitioner also stated respondent authorized treatment by Dr. Mark Schwartz, an orthopedic specialist, who placed petitioner's foot in a cast, but respondent's [w]orkers' [c]ompensation carrier later denied his claim because he reported to the medical care providers he was injured at home.

The April 17, 2019 Hearing on Petitioner's Motion for Medical and Temporary Disability Benefits

During an April 17, 2019 hearing on petitioner's motion for medical and temporary disability benefits, the judge first addressed respondent's opposition to petitioner's motion and affidavit. Respondent's counsel acknowledged petitioner was employed by respondent and at work on the day of the alleged injuries, but she explained compensation was denied because petitioner informed medical care providers he was injured at home.

The judge questioned whether respondent intended to assert petitioner engaged in fraud, and respondent's counsel said she did not anticipate filing a "fraud motion." The judge further inquired whether respondent disputed the incident occurred at work, and he observed that "[b]ecause of the possibility of an allegation of fraud," petitioner "could face a dynamic where he has a right to remain silent." The judge reiterated that if there was "any possible suggestion of a fraud implication ... [p]etitioner has potential rights to remain silent." The judge ordered respondent's counsel to immediately produce Caruso as a witness, directed petitioner "step down" from the witness stand, and advised petitioner he would not "be testifying first."

The judge next explained he accelerated the scheduling of the hearing on petitioner's motion for medical and temporary disability benefits because respondent did not supply affidavits from witnesses in opposition to the motion. The judge noted respondent provided only a certification from its counsel, which did not include sufficient competent information enabling a review of respondent's opposition to petitioner's motion. The judge observed petitioner's affidavit "may constitute a prima facie case and may be a sufficient basis for" an order granting the requested relief, and the judge therefore provided respondent an opportunity to present witnesses in opposition to petitioner's supporting affidavit.

Respondent's counsel first called Sam Waddell, respondent's owner, as a witness. He testified petitioner was employed by respondent on the day of the incident. Waddell was not on the premises when the incident occurred, but manager Evan Powell notified him by telephone petitioner had climbed a ladder to retrieve tools and "jumped off instead of going back down the ladder." Powell also said he tried to get petitioner to see a doctor, but petitioner refused. Waddell told Powell to have petitioner wait for Waddell to return to the premises, but petitioner left before Waddell arrived. Waddell also confirmed that if an injury "happened at work, and it's verified, then it would be covered under [w]orkers' [c]ompensation."

Caruso also testified, confirming she was at respondent's premises on the day of the incident but did not see petitioner jump from the loft. Instead, she heard the sound of the impact when petitioner landed and went to ask if he needed assistance. Caruso observed petitioner "in a lot of pain," and she offered petitioner medical care, which he declined. Caruso believed another employee saw petitioner jump. Caruso completed an incident report that Powell signed. She confirmed receipt of petitioner's text message advising he was going to the hospital for treatment and had his own insurance.

Following the testimony of respondent's witnesses, the judge said he did not understand why petitioner would jump from the loft. He asked petitioner's counsel if petitioner would testify, and counsel represented petitioner would testify and explain why he jumped from the loft. The judge said he "look[ed] forward to hearing that testimony." The judge also renewed his inquiries concerning whether respondent believed "fraud" applied, and respondent's counsel advised the matter was not being investigated for fraud.

The judge said he would not immediately decide whether petitioner presented a prima facie entitlement to medical and temporary disability benefits, "even in the absence of" certifications from respondent's witnesses, because respondent presented Caruso's and Waddell's testimony. The judge also said he did "not comprehend the jumping" and the "dynamic ... as why someone jumps down," and he questioned whether "horseplay" or "some other motivation" played a role in the incident. Petitioner's counsel offered to make a proffer to address the judge's concerns, but the judge declined.

The judge concluded the April 17, 2019 hearing, stating, "I am one who believes we need to know more. I'm not rushing the judgment today" because this was "not ... a clear[-]cut case." The judge adjourned the hearing on petitioner's motion for medical and temporary disability benefits. The continuation of the hearing was scheduled for May 29, 2019, and the judge advised the parties to have their witnesses present.

The May 29, 2019 Continuation of the Hearing on Petitioner's Motion

On the day prior to the May 29, 2019 hearing, respondent filed a motion to dismiss the claim petition "for failure to sustain burden of proof." Supported by its counsel's certification, respondent asserted the medical records showed petitioner reported he was injured at home and therefore his injuries were not work-related or compensable. In the alternative, respondent argued the conduct petitioner alleged resulted in his injuries was willfully negligent, or constituted horseplay, and therefore was not compensable.

At the May 29, 2019 hearing, respondent's counsel restated the reasons supporting respondent's dismissal motion. Petitioner's counsel argued petitioner had not had the opportunity to present any evidence; petitioner had a right to testify; and petitioner was prepared to testify at the prior hearing and was again present and available to testify that day. Petitioner's counsel asserted that, until petitioner testified, "everything that has been said is mere speculation" and there was no evidence of horseplay or willful misconduct. Petitioner's counsel acknowledged petitioner acted foolishly but contended petitioner's testimony and the other evidence would establish "no intent to defraud," and no...