Letter of the Workplace Injury Litigation Group - New Jersey to Director/Chief Judge Peter J. Calderone-Thank you for giving our organization, The Workplace Injury Litigation Group - New Jersey (WILG-NJ), the opportunity to review and comment upon the proposed changes to the rules guiding the New Jersey Division of Workers' Compensation (NJDWC).
Our legislative action committee has reviewed the proposed changes and objects to same being implemented as the rule amendments make it harder for the Petitioner to prosecute her case, not easier. These changes fly in the face of the social remedial nature of New Jersey's Workers' Compensation Statute. The Statute, as interpreted by the Courts and as intended by the Legislature, dictates that the Division be a "workers" Court and it's rules should be promulgated, interpreted and enforced accordingly. This principal was recently re-enforced by our Supreme Court in the unanimous decisions of Lindquist and Culbert vs. The City of Jersey City. Consequently, no rule should be adopted that circumvents the Statute or the legislative intent.
Further, there is no evidence establishing that there is a recognizable problem with the existing rules contemplated being changed, significant enough to warrant such an erosion of Petitioners' rights. Where are the studies, investigations and hearings, which constitute the genesis behind the proposed amendments? WILG-NJ can only conclude that there are none and that the changes are not supported by conclusive empirical data.
Our initial concern to each proposed rule amendment is listed below. We have also taken the liberty of proposing our own amendments to the Rules of the NJDWC and respectfully ask that they be added to the official agenda for consideration, debate and adoption. WILG-NJ wishes to testify on these issues before the appropriate legislative and/or governmental body(s).
Thank you for your consideration and we look forward to your response. Have a happy holiday.
Ricky E. Bagolie
WILG-NJ OBJECTIONS TO PROPOSED RULE CHANGES
12:235-1.4 Still and television camera and audio coverage of proceedings
(a&b) WILG-NJ has no objection.
12:235-3.1 Initial Pleadings
(f) WILG-NJ objects to the prioritizing of venue. Venue should be assigned based upon the choice of the Petitioner. This is consistent with the Statute and NJ Rule of Court 4:3-2 a (3). WILG-NJ also advocates that venue may also be laid in the County of Petitioner's attorney.
(g) WILG-NJ objects to personal service of motions for default. This adds unnecessary time, cost and expense to the proceedings, especially for Pro Se litigants, and will only serve to further deter respondents from promptly answering and defending claims. WILG-NJ proposes that the New Jersey Division of Workers' Compensation (NJDWC) be charged with serving Default Motions and Claim Petitions and obtaining proof of service.
12:235-3.2 Motions for temporary disability and/or medical benefits
(g) WILG-NJ has no objection but proposes additional rules designed to help the Petitioner, move the cases faster and provide a true safety net for those injured workers most in need of urgent medical treatment and prescription medicine.
12:235-3.9 Pre-Trial Conference
(a) 4 i. WILG-NJ objects to parties not providing or exhibiting surveillance tapes prior to the other party's testimony under oath. The Workers' Compensation system does not provide for extended and costly discovery, including depositions of parties as well as the investigators used to authenticate the surveillance tapes. The lack of discovery in these situations amounts to trial by ambush. Any costs associated with the discovery involving surveillance tapes should be borne solely by Respondent.
(a) 4 ii. WILG-NJ objects to amending the pre-trial memorandum once the trial has commenced without the consent of the Petitioner.
12:235-3.10 Conduct of formal hearings
(a) 1, i., ii. WILG-NJ objects. Motions to be relieved of counsel should be freely granted. Petitioner's attorney should not be required to appear on the Motion with out filed objection when Petitioner has violated prohibitions in the Cannon of Ethics.
(a) 3 r. WILG-NJ objects because requiring the return date to be the date of the workers' compensation proceeding will cause unnecessary delay as very often, the workers' compensation hearing date scheduled for several months ahead of the need for the subpoena. The return date should be any date coinciding with the usual list associated with the Judge of Workers' Compensation.
12:235-7 et seq. Filing notice of uninsured claim, et al.
WILG-NJ has no objections at this time but would ask for a clarification of the attorney fee provision, 12:235-7.7 (a).
WILG-NJ RULE AMENDMENT PROPOSAL
1. No Judge of the Division of Workers' Compensation shall adjourn a case for more than three (3) cycles (excluding Court Holidays) without the consent of the Petitioner.
2. All adjournments involving Motions for Temporary Disability and/or Medical Benefits shall be placed on the record.
3. A Petitioner may be permitted to file an Order to Show Cause to obtain medical benefits and/or prescription medicine on an emergent and expedited basis on notice to Respondent or Respondent's insurance carrier. The return date of the Order to Show Cause shall be no longer than one (1) week after it's filing. The Workers' Compensation Judge shall Order that medical treatment and/or prescription medication be provided to protect the health, safety and welfare of the Petitioner.
4. The New Jersey Division of Workers' Compensation (NJDWC) shall compile and report to the Bar statistics of all adjournments granted by number of cycles and disposition, per jurisdiction, per Judge, per month. These statistics may be posted on the Division's web site.
5. The NJDWC shall be charged with service of Default Motions and obtaining proof of service of Motions and Claim Petitions.
6. Directive from NJDWC, all settled cases to be heard on the record commencing at 9:00 am.
7. Enforce 180 day close of Discovery pursuant to N.J.A.C. 12:235-5.5.
8. Venue of case may be laid, inter alia, in the county of Petitioner's attorney.