Polulich v. J. G. Schmidt Tool Die & Stamping Co.
Decision Date | 24 June 1957 |
Docket Number | No. A--116,A--116 |
Citation | 134 A.2d 29,46 N.J.Super. 135 |
Parties | Roman POLULICH, Petitioner-Respondent, v. J. G. SCHMIDT TOOL DIE & STAMPING CO., Respondent-Appellant. . Law Division, New Jersey |
Court | New Jersey County Court |
James J. Carroll, Newark, for respondent-appellant (Frank Fink, Newark, of counsel).
Sam Freeman, Newark, for petitioner-appellee (Seymour B. Jacobs, Newark, of counsel).
Grover C. Richman, Jr., Atty. Gen., amicus curiae (Thomas L. Franklin, Rutherford, of counsel).
GAULKIN, J.C.C.
The petitioner was awarded compensation for increased disability and respondent appeals. Respondent raises two points--first, that the deputy, without legal authority and without the consent of the respondent, had the petitioner examined by an expert chosen by the deputy whom he thereafter called as a witness, and the deputy based his decision in part on his testimony; and second, that the petitioner did not establish an increase of disability.
Petitioner was injured June 18, 1951, as a result of which the first, second, third and fourth fingers of his right hand were amputated. Following a formal hearing on June 4, 1952 petitioner was awarded 75% Disability of the right hand and 5% Of total disability for a consequent neurosis. In May 1955 petitioner filed his petition for increased disability, and hearings were held thereon October 18 and November 1, 1955, and March 14, 1956, following which the deputy made the award appealed from.
At the latter hearings petitioner produced Dr. Vincent J. Riggs, who had testified for petitioner in the 1952 hearing, and Dr. Jack Chernus. In the 1952 hearing Dr. Riggs had testified that the petitioner's disability by reason of neurosis was 12 1/2%. Now he found his disability due to neurosis to be 50%. Dr. Chernus also found his present disability due to neurosis to be 50%.
The respondent called Dr. Jack Blumberg, who had also testified in 1952, at which time he had estimated petitioner's disability due to neurosis to be 2 1/2%. Dr. Blumberg testified that in his opinion there had been no increase in that disability, and it was still 2 1/2%.
Faced with this wide discrepancy the deputy director decided to have the petitioner examined by the best impartial neuropsychiatrist he could find available for that purpose. The deputy made a very candid and interesting statement of his reasons for what he did, as follows:
experience in Workmen's Compensation practice, and seven years' experience as an examiner in disability appeals in the Veterans' Administration. * * *
'It is my opinion and firm conviction that this Division has every right to have a petitioner examined by a competent, outside physician as a means of assisting the hearing officer to determine the true medical facts, where the opposing attorneys have the opportunity to cross examine such outside physician and when neither attorney is involved in the choosing of such physician and when the physician selected has no interest other than a medical one, in the case.'
Respondent objected vehemently and refused to cross-examine. For the purposes of this appeal it will be taken as established that the respondent objected to the appointment of Dr. Davidson from the beginning.
Respondent argues that (1) even a judge has no right to call an expert over the objection of counsel, and (2) assuming a judge has that right, a deputy does not, because he is not a 'judge' and the Workmen's Compensation Division is not a 'court.'
For the decision of this case, it is unnecessary to decide each and every respect in which a deputy is like or unlike a 'judge,' and the Division like or unlike a 'court.' For present purposes it is sufficient to note that the Division is a factfinding tribunal, and the deputy a trier of fact. The deputy, like the judge sitting without a jury, is seeking the truth, and to find it he is empowered to do all that a judge sitting without a jury may do. Indeed, it has been argued that those who sit in administrative tribunals may do even more than a judge. Davis, 'Evidence in the Administrative Process,' 55 Harv.L.Rev. 364 (1942). For example, the deputy is not bound by the rules of evidence, R.S. 34:15--56, N.J.S.A.; Scalise v. Uvalde Asphalt Paving Co., 98 N.J.L. 696, 121 A. 693 (Sup.Ct.1923). And R.S. 34:15--50, N.J.S.A. provides that under certain circumstances, Cf. Krauss v. A. & M. Karagheusian, 13 N.J. 447, 457, 100 A.2d 277 (1953).
Wigmore said '* * * the general judicial power itself * * * implies inherently a power to investigate as auxiliary to the power to decide; and the power to investigate implies necessarily a power to summon and question witnesses.' 9 Wigmore on Evidence (3d ed.), § 2484, p. 267. Respondent replies that even if a judge has that 'inherent' power, a deputy has no 'inherent' power, but only those powers expressly given him by the Workmen's Compensation Act.
No basis in reason is offered for the distinction and I can see none. The deputy has 'exclusive original jurisdiction' to hear and determine the facts in workmen's compensation cases, R.S. 34:15--49, N.J.S.A. The Division is the trial tribunal (if we are to avoid the word 'court') in these cases. No other tribunal hears and sees the witnesses. Appeals are based 'exclusively' on the record made before the deputy (R.R. 5:2--5(d)), and for that reason the appellate tribunals give the findings of the deputy great weight. If the deputy does not have the power 'to investigate as auxiliary to the power to decide' which, as Wigmore said, 'implies necessarily a power to summon and question witnesses,' then no one has that power in workmen's compensation cases.
Since the whole scheme of the Workmen's Compensation Act is thus based upon the expectation that the deputy will, so far as a fact-finding tribunal devoted to justice can, find the truth, no construction should be adopted, unless clearly compelled, which would give the deputy fewer powers with which to find the truth than those possessed by a trial judge.
What, then, are those powers of the trial judge? Specifically, may a trial judge, under similar circumstances, call an expert as a witness over the protests of the parties?
It is argued that there is no New Jersey case squarely holding that a trial judge may do so. Perhaps that is so. In Morrone v. Morrone, 44 N.J.Super. 305, 130 A.2d 396 (App.Div.1957) the court appointed 'his own' handwriting expert, but whether that was opposed by the parties does not appear, and no point was made of it on appeal.
An interesting early case is Newark Plank Road & Ferry Co. v. Elmer, 9 N.J.Eq. 754 (E. & A.1855), in which complainants sought an injunction to abate a nuisance created by defendant's piers in the Passaic River. Chief Justice Green sat for the chancellor, who was disqualified. After the hearing he said (Id., at page 771), there were many points etc.--all matters for experts. Over the...
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