TERESA D'ANGELO VS. ARCHDIOCESE OF NEWARK/CHRIST THE Â KING PREPARATORY SCHOOL(DIVISION OF WORKERS' COMPENSATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE 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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1690-15T3
TERESA D'ANGELO,
Petitioner-Respondent,
v.
ARCHDIOCESE OF NEWARK/CHRIST
THE KING PREPARATORY SCHOOL,
Respondent-Appellant.
_______________________________
Argued September 25, 2017 – Decided October 30, 2017
Before Judges Sabatino and Rose.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition No.
2013-1923.
Joseph V. Biancamano argued the cause for
appellant (Biancamano & DiStefano, PC,
attorneys; Mr. Biancamano, on the briefs).
Teresa J. Gundersen argued the cause for
respondent.
PER CURIAM
Respondent Archdiocese of Newark/Christ the King Preparatory
School appeals from a November 17, 2015 order of the Division of
Workers' Compensation finding petitioner Teresa D'Angelo
permanently and totally disabled as a result of a compensable
injury, and awarding her counsel fees. Respondent contends the
decision of the Judge of Workers' Compensation is erroneous in
numerous aspects. We disagree, and affirm.
I.
Petitioner was employed by respondent as a school bus driver
when, on November 28, 2011, she sustained a gunshot wound to her
hip from a stray AK-47 bullet that entered the side of the vehicle.
The bullet lodged in petitioner's pelvis, and caused multiple
internal injuries. Petitioner underwent surgery and treatment for
her physical injuries, and suffered from post-traumatic stress
disorder ("PTSD").
A seven-day trial was held before the compensation judge on
non-consecutive days from October 14, 2014, through July 14, 2015.
Having stipulated the incident was a compensable accident,
respondent's sole focus at trial was upon the nature and extent
of petitioner's disability. Petitioner testified and presented
testimony of two expert witnesses; her employer presented
competing testimony of two other expert witnesses.
2 A-1690-15T3
Petitioner testified over the course of three trial days.
She described her complaints and limitations at the time of her
testimony compared to her health prior to the incident. For
example, her energy level is reduced and her activities are
limited. Petitioner testified further she suffers from anxiety
attacks, fears being alone at night, and feels depressed.
Petitioner acknowledged she had been involved in two motor
vehicle accidents prior to the incident. Although she did not
recall the injuries she sustained in the first accident in 1999,
petitioner testified she injured her cervical spine in the second
accident in 2007. She did not miss work while she was treating
for neck pain. Petitioner disclosed further she had treated with
a psychologist during the seven or eight years prior to the
accident for family issues, panic attacks, and difficulty
sleeping.
Before petitioner presented the testimony of her medical
experts, respondent sought to introduce testimony regarding her
pre-existing medical condition to determine whether Second Injury
Fund1 participation was warranted. Although petitioner did not
1
See N.J.S.A. 34:15-95; Sexton v. Cty. of Cumberland/Cumberland
Manor, 404 N.J. Super. 542, 555 (App. Div. 2009) ("allow[ing]
employers a credit if a work accident accelerates or aggravates a
preexisting condition, resulting in total and permanent
disability")(citing N.J.S.A. 34:15-95; N.J.S.A. 34:15-12(d)).
3 A-1690-15T3
file a formal motion to quash the subpoenas, the compensation
judge disallowed the testimony, finding it was not probative of
the sole issue before the court, that is, "the nature and extent
of [p]etitioner's permanent disability as it relates to the
compensable accident." The compensation judge noted further that
a Second Injury Fund petition was not pending before the court.
Both experts who testified on behalf of petitioner opined she
is totally and permanently disabled from the incident.
Petitioner's orthopedic expert, Dr. Cary Skolnick, evaluated her
on November 4, 2013, and opined the injuries to her pelvis, hips,
abdomen and spine all were related to the incident, rendering her
one hundred percent totally and permanently disabled.
When asked about the term on cross-examination, Dr. Skolnick
defined the concept of reasonable degree of medical probability
as "[s]omething that is more probable than not." He was unable
to state what respondent identifies as the three major
classifications of workers' compensation disability, and could not
provide the legal definition of permanency. Respondent moved to
strike Dr. Skolnick's testimony as net opinion, and for failure
to comprehend the applicable legal terms. The compensation judge
reserved decision and instructed respondent to brief the issue as
4 A-1690-15T3
part of its findings of fact and conclusions of law at the
completion of trial.2
Dr. Peter Crain, a board-certified psychiatrist, testified
as petitioner's neurology expert. Dr. Crain evaluated petitioner
on December 18, 2013, and diagnosed her with lumbrosacral
plexopathy and PTSD. Dr. Crain opined petitioner's physical
symptoms were permanent, and ascribed a neurological disability
of twenty-five percent. Dr. Crain opined further petitioner's
PTSD was causally related to the incident and ascribed a
psychiatric disability of thirty-five percent. Although
petitioner informed Dr. Crain she had not had any panic attacks
prior to the incident, he acknowledged her prior records indicated
otherwise. Dr. Crain testified, however, that petitioner's prior
panic attacks and anxiety had completely dissipated prior to the
incident.
On cross-examination, Dr. Crain defined the term reasonable
degree of medical probability as "that for more reasons than not
based upon the evidence available, this person has the condition
that I diagnosed based upon these facts that I base my opinion
2
The compensation judge did not rule specifically on the motion
in her final decision. However, it is unclear from the record
whether respondent briefed the issue, inasmuch as its findings of
fact and conclusions of law were not included in its appendix on
appeal.
5 A-1690-15T3
upon." Like Dr. Skolnick, he was unable to identify the three
types of disability set forth in the workers' compensation statute.
Respondent's motion to strike Dr. Crain's testimony, on the same
bases as its motion to strike Dr. Skolnick's testimony, was denied.
Unlike petitioner's experts, both experts who testified on
behalf of respondent opined petitioner is not totally and
permanently disabled from the incident. Dr. Malcolm Coblentz, an
expert in general surgery, determined partial total disability of
twelve and one-half percent for petitioner's abdomen, left iliac
vein, and umbilical hernia; fifteen percent partial total
disability for her left hip and left iliac wing; ten percent for
her left leg; and no evidence of disability for her right pelvis.
According to Dr. Coblentz, petitioner did not disclose to him
her prior motor vehicle accidents. As such, respondent moved to
dismiss the action based on petitioner's allegedly "fraudulent"
answers to Dr. Coblentz.3 The compensation judge denied the motion
and respondent's subsequent attempt to produce in evidence,
through Dr. Coblentz, petitioner's prior cervical MRI. The
3
See N.J.S.A. 34:15-57.4(c)(1)(providing, "[i]f a person purposely
or knowingly makes, when making a claim for benefits pursuant to
[N.J.S.A.] 34:15-1 et seq., a false or misleading statement,
representation or submission concerning any fact which is material
to that claim for the purpose of obtaining the benefits, the
division may order the immediate termination or denial of benefits
with respect to that claim and a forfeiture of all rights of
compensation or payments sought with respect to the claim.").
6 A-1690-15T3
compensation judge reasoned respondent had not moved to dismiss
petitioner's claim or suppress her defenses prior to trial and,
as such, waived its discovery demand.
Dr. Erin Elmore, a board-certified neurologist and expert in
neuropsychiatry, diagnosed petitioner with a sciatic nerve injury
from the gunshot wound, and determined a partial total neurological
disability of seven and one-half percent. Dr. Elmore also
diagnosed petitioner with PTSD and recommended psychiatric
treatment. Having refused that treatment, Dr. Elmore estimated
petitioner's disability at five percent.
In her comprehensive written decision, the compensation judge
found petitioner's testimony was "straightforward, to the best of
her ability and recollection, and very credible." The judge
detailed petitioner's testimony regarding the incident, treatment
and complaints, the latter of which the judge found "are of the
type one would expect given the nature and extent of her
significant injuries."
In finding petitioner is totally and permanently disabled as
a result of the incident, the compensation judge observed "both
parties have significant findings of disability." The judge was
influenced particularly by Dr. Coblentz's concurrence with Dr.
Skolnick's findings, that is, the muscle petitioner injured
controls "'balance and keeping people upright'" and "a torn or
7 A-1690-15T3
ripped muscle will heal but with a scar that can cause pain,
discomfort and spasm with certain motions." Thus, the compensation
judge found the objective medical findings consistent with
petitioner's subjective complaints of balance instability and
muscle fatigue. The judge found, nevertheless, Dr. Coblentz's
attempts to minimize petitioner's injuries as disingenuous.
The compensation judge also determined the objective findings
of both neurologic experts, Dr. Crain and Dr. Elmore, "are
consistent with petitioner's complaints of a dropped foot that
causes her to fall." Further, the judge noted both neurologic
experts concurred that petitioner suffers from PTSD due to the
incident.
In her written decision, the compensation judge addressed
respondent's motion to dismiss petitioner's claim for fraud for
failing to disclose her 2007 motor vehicle accident to the
respondent's evaluating physicians. In denying the motion, the
judge found petitioner's prior orthopedic and psychiatric history
had been disclosed to respondent during the course of discovery
as early as August 13, 2012. The judge also found petitioner's
cervical spine, injured in the 2007 motor vehicle accident, was
not injured in the underlying incident; reiterated a Second Injury
Fund application was not filed with the court; and considered
8 A-1690-15T3
petitioner's testimony that her treatments for the 2007 motor
vehicle accident did not prevent her from working.
In rendering her decision, the compensation judge emphasized
she had the opportunity to observe petitioner on three trial days,
hear her testimony, review the medical testimony and medical
records in evidence, all of which led her to conclude petitioner
is totally and permanently disabled as a result of the shooting
incident. The judge's ruling included an award of 450 weeks, and
also assessed against respondent an award of counsel fees in the
amount of $2,500 for defense of "various" motions made during
trial "based upon the history of the proceedings."
On appeal, respondent argues, among other things: (1) there
is insufficient credible evidence to support the compensation
judge's finding that petitioner was permanently and totally
disabled based solely on the November 28, 2011 incident, and the
compensation judge violated its due process rights by excluding
evidence of petitioner's treatment for a prior motor vehicle
accident; (2) the testimony of petitioner's medical experts was
incompetent and should have been stricken from the record as net
opinion, for failure to define pertinent medical/legal criteria,
and for violating the requirements set forth in Allen v. Ebon
9 A-1690-15T3
Servs. Int'l, Inc.4 ("Allen requirements"); and (3) the
compensation judge's imposition of counsel fees was unjustified.
Having considered these and respondent's other arguments, we
decline to set aside any of the judge's rulings.
II.
Our review of workers' compensation cases is "limited to
whether the findings made could have been reached on sufficient
credible evidence present in the record . . . with due regard also
to the agency's expertise." Hersh v. Cty. of Morris, 217 N.J.
236, 242 (2014) (alteration in original) (quoting Sager v. O.A.
Peterson Constr., Co., 182 N.J. 156, 164 (2004)); see also Renner
v. AT&T, 218 N.J. 435, 448 (2014). We may not substitute our own
factfinding for that of the judge of compensation. Lombardo v.
Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must
defer to the factual findings and legal determinations made by the
judge of compensation "considering the proofs as a whole, with due
regard to the opportunity of the one who heard the witnesses to
judge their credibility." Lindquist v. City of Jersey City Fire
Dep't, 175 N.J. 244, 262 (2003) (internal quotation marks and
citations omitted).
4
237 N.J. Super. 132 (App. Div. 1989).
10 A-1690-15T3
Importantly, compensation judges possess "expertise with
respect to weighing the testimony of competing medical experts and
appraising the validity of [a petitioner's] compensation claim."
Ramos v. M & F Fashions, 154 N.J. 583, 598 (1998). In the end, a
judge of compensation has the discretion to accept or reject expert
testimony, in whole or in part. Kaneh v. Sunshine Biscuits, 321
N.J. Super. 507, 511 (App. Div. 1999); see also Kovach v. Gen.
Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) ("It must
be kept in mind that judges of compensation are regarded as
experts.").
We will "appraise the record as if we were deciding the matter
at inception and make our own findings and conclusions" only if
the judge of compensation "went so wide of the mark that a mistake
must have been made[.]" Manzo v. Amalgamated Indus. Union Local
76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122
N.J. 372 (1990) (citations omitted). However, we afford no
deference to a judge of compensation's interpretation of the law
and instead review legal questions de novo. Renner, supra, 218
N.J. at 448.
Against this legal backdrop, and mindful of our standard of
review, we affirm substantially for the reasons expressed by the
compensation judge in her written decision of November 17, 2015.
There is more than sufficient proof in the record to sustain the
11 A-1690-15T3
compensation judge's conclusion that petitioner is totally and
permanently disabled as a result of the incident. The objective
findings of both parties' experts corroborate petitioner's
subjective complaints, and amply support the judge's conclusions.
We add the following comments on the main points presented by
respondent.
A.
Contrary to respondent's contentions, the compensation judge
did not violate its due process rights by excluding evidence of
petitioner's 2007 motor vehicle accident. Our review of
evidentiary rulings by trial courts, including workers'
compensation courts, is limited. See Vitale v. Schering-Plough
Corp., 447 N.J. Super. 98, 122 (App. Div.), certif. granted, 228
N.J. 421, certif. denied, 228 N.J. 430 (2016). "The general rule
as to the admission or exclusion of evidence is that
'[c]onsiderable latitude is afforded a trial court in determining
whether to admit evidence, and that determination will be reversed
only if it constitutes an abuse of discretion.'" State v.
Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "Under
that standard, an appellate court should not substitute its own
judgment for that of the trial court, unless 'the trial court's
ruling "was so wide of the mark that a manifest denial of justice
12 A-1690-15T3
resulted."'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484
(1997)).
Abiding by that standard of review, we agree with the
compensation judge that petitioner's injuries from her 2007 motor
vehicle accident were properly excluded at trial. As the judge
found in her written decision, neither party applied for Second
Injury Fund benefits pursuant to N.J.S.A. 34:15-95. Further,
there is no evidence in the record that petitioner's injuries from
her 2007 motor vehicle accident prevented her from working prior
to the 2011 incident. On the contrary, as the judge observed, the
injuries petitioner sustained in the 2007 motor vehicle accident
did not affect her ability to work or function normally. Moreover,
petitioner injured her cervical spine in the prior 2007 motor
vehicle accident whereas her lumbar spine -- and not her cervical
spine -- was injured in the instant incident. In sum, the
compensation judge properly excluded evidence of the 2007 motor
vehicle accident as irrelevant in the compensation trial.
B.
We next turn to respondent's claims that petitioner's expert
medical testimony should have been stricken as incompetent. We
"apply [a] deferential approach to a trial court's decision to
admit expert testimony, reviewing it against an abuse of discretion
13 A-1690-15T3
standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,
371 (2011).
Initially, we find no merit to respondent's claims that Dr.
Skolnick and Dr. Crain rendered inadmissible net opinions. The
doctrine barring the admission at trial of net opinions is a
"corollary of [N.J.R.E. 703] . . . which forbids the admission
into evidence of an expert's conclusions that are not supported
by factual evidence or other data." Townsend v. Pierre, 221 N.J.
36, 53-54 (2015) (alterations in original) (quoting Polzo v. Cty.
of Essex, 196 N.J. 569, 583 (2008)). The net opinion principle
mandates experts "give the why and wherefore" supporting their
opinions, "rather than . . . mere conclusion[s]." Id. at 54
(quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J.
115, 144 (2013)). An expert's conclusion, therefore, must be
excluded "if it is based merely on unfounded speculation and
unquantified possibilities." Vuocolo v. Diamond Shamrock Chems.
Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122
N.J. 333 (1990).
However, "[t]he net opinion rule is not a standard of
perfection." Townsend, supra, 221 N.J. at 54. It does not require
experts organize or support their opinions in a specific manner
"that opposing counsel deems preferable." Ibid. Consequently,
"[a]n expert's proposed testimony should not be excluded merely
14 A-1690-15T3
'because it fails to account for some particular condition or fact
which the adversary considers relevant.'" Ibid. (quoting Creanga
v. Jardal, 185 N.J. 345, 360 (2005)).
As the compensation judge noted in her decision, "both [of
petitioner's] experts testified as to the factual basis for their
opinions and the causal relationship between the gunshot wound and
[p]etitioner's current complaints." Indeed, the judge's decision
is replete with references to testimony that supported each
expert's opinion. For example, Dr. Skolnick testified that his
opinion was based upon his physical examination of petitioner, her
testimony at trial, and his review of the voluminous medical
records. Dr. Crain's opinion was predicated upon his examination
of petitioner, which he testified to at length at trial utilizing
an anatomical model and the results of petitioners' CT scan. The
experts gave the "why and wherefore" of their opinions and, as
such, they were not "net."
Secondly, we find no merit in respondent's argument that the
experts' failure to properly define the legal term, "reasonable
degree of medical probability or certainty," is fatal to their
respective testimony. We have defined "reasonable medical
certainty or probability" as "the general consensus of recognized
medical thought and opinion concerning the probabilities of
conditions in the future based on present conditions." Schrantz
15 A-1690-15T3
v. Luancing, 218 N.J. Super. 434, 439 (Law Div. 1986) (citing
Boose v. Digate, 246 N.E.2d 50 (Ill. App. Ct. 1969)). If an expert
cannot demonstrate that he understands the essential meaning of
that phrase, his offered testimony "must be stricken because it
cannot be said that the opinions he gave were based on reasonable
medical probability." Ibid.
We have observed, however, in Eckert v. Rumsey Park Assocs.,
294 N.J. Super. 46, 51 (App. Div. 1996), certif. denied, 147 N.J.
579 (1997) (quoting Aspiazu v. Orgera, 535 A.2d 338, 343 (Conn.
1987)), it is not necessary for a testifying expert to use the
"'talismanic' or 'magical words' represented by the phrase
'reasonable degree of medical certainty.'" Instead, to admit the
expert's testimony, a court only needs to be "persuaded that 'the
doctor was reasonably confident of the relationship between the
plaintiff's injury and [her] . . . diagnosis and treatment.'"
Ibid. It is therefore merely necessary for an expert to "convey[]"
the meaning of "reasonable degree of medical certainty" when
offering his opinion. State v. McNeil, 405 N.J. Super. 39, 50-51
(App. Div.), certif. denied, 199 N.J. 130 (2009) (citing Eckert,
supra, 294 N.J. Super. at 51).
We discern no reversible error, nor any manifest injustice,
in the trial court's allowance of petitioner's experts' testimony,
given their respective phrasing of the concept. Although the
16 A-1690-15T3
compensation judge ruled during trial5 that respondent's
objections would bear upon the weight of the evidence, the concept
does not require particular "talismanic" or "magical words" that
must be invoked. Dr. Skolnick and Dr. Crain expressed their
respective opinions in terms of medical "probabilities" instead
of impermissible "possibilities." We are thus satisfied that
neither expert misstated the basic concept.
Nor are we persuaded by respondent's similar argument that
both experts' opinions were inadmissible because neither Dr.
Skolnick nor Dr. Crain could properly define in legal terms
"permanent disability," or identify the three types of disability
set forth in N.J.S.A. 34:15-36. Notably, respondent has not cited
any authority requiring an expert to define statutory terms or
classifications. Having determined that Dr. Skolnick and Dr.
Crain were qualified to testify in their respective areas of
expertise, the compensation judge properly accepted their
opinions, while rejecting the opinions of the respondent's
experts. See Kaneh, supra, 321 N.J. Super. at 511. It was,
therefore, within the compensation judge's discretion to impart
5
As noted above, it is unclear whether respondent raised this
objection in its post-trial submission to the court, inasmuch as
that submission was not included in its appellate appendix.
17 A-1690-15T3
more weight to petitioner's experts, despite their inability on
the witness stand to recite on demand certain statutory terms.
Turning to respondent's contention that petitioner's experts
failed to satisfy the Allen requirements, we are again unpersuaded.
In Allen, supra, we reversed a workers' compensation award of
permanent partial disability, and remanded for "redetermination
of permanent disability after reexaminations have been conducted."
237 N.J. Super. at 133, 136. There, the compensation judge erred
by failing to set forth the specific findings required under
N.J.S.A. 34:15-36 and Perez v. Pantasote, Inc., 95 N.J. 105 (1984).
Id. at 135. The compensation judge in Allen stated merely the
petitioner had "objective signs of substantial injury[.]" Ibid.
Instead, Perez, supra, requires the petitioner make "a
satisfactory showing of demonstrable objective medical evidence
of a functional restriction of the body, its members or organs."
95 N.J. at 116. We, therefore, held a mere conclusory statement
that petitioner satisfied those requirements is insufficient
pursuant to N.J.S.A. 34:15-36.
The present case, however, differs significantly from Allen.
In the compensation judge's seven-page written opinion, she set
forth specifically the objective medical evidence upon which she
based her decision, noted her credibility findings, discussed
petitioner's various medical issues and related explanations, and
18 A-1690-15T3
reconciled those findings with the underlying law. In sum, the
compensation judge's opinion far exceeds the mere conclusory
statement that the petitioner in Allen had "objective signs of
substantial injury" which warranted reversal.
Furthermore, as respondent contends, in Allen we also
reversed the award because both treating physicians had evaluated
the petitioner thirty-five months before the disability
determination was made, and twenty-six months before the
petitioner testified. "An award of compensation for partial
permanent disability must be based on the disability that exists
at the time of the determination." Allen, supra, 237 N.J. Super.
at 135 (citations omitted). We decided a gap in time of thirty-
five months did not satisfy that requirement because "'the validity
of a medical finding of a permanent injury may decrease with the
passage of time." Id. at 136 (quoting Perez, supra, 95 N.J. at
119).
The timing of the expert evaluations in the present case is
distinguishable from Allen. Dr. Skolnick examined petitioner
approximately two years after the incident, one year after her
discharge from physical treatment, and seven months after the date
of total disability. Dr. Crain examined petitioner approximately
two years after the incident, thirteen months after her discharge
from physical treatment, nine months after her last counselling
19 A-1690-15T3
session, and eight months after the date of total disability. As
we observed in Allen: "'the Legislature . . . did not intend that
awards routinely be made on the basis of medical examinations
performed shortly after the accidents and well before the
hearings[.]'" Allen, supra, 237 N.J. Super. at 136 (quoting Perez,
supra, 95 N.J. at 119). Significantly, here, two years had
transpired between the incident and the experts' respective
examinations, distinguishing this case from Allen, where the
accident was much more recent and the evaluation occurred before
the petitioner had time to improve.
C.
Lastly, we address respondent's argument that the
compensation judge lacked a legal basis to impose counsel fees for
filing a motion to dismiss for fraud pursuant to N.J.S.A. 34:15-
57.4. Ordinarily, trial courts, including workers' compensation
courts, possess wide discretion in ruling on counsel fee
applications, and we afford substantial deference to those rulings
on appeal. See Sroczynski v. Milek, 197 N.J. 36, 45-46 (2008);
see also Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444
(2001); Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386
(2009).
However, appellate courts will provide relief from such
rulings in instances where the trial court has misapplied the law
20 A-1690-15T3
or relied upon impermissible grounds. See, e.g., Rendine v.
Pantzer, 141 N.J. 292, 316-17 (1995) (recognizing the discretion
commonly exercised by trial judges in deciding counsel fee
applications); Walker v. Giuffre, 209 N.J. 124, 148 (2012) (holding
that a trial court's failure to comply with the methodology
prescribed by Rendine constitutes an abuse of discretion).
Pursuant to N.J.S.A. 34:15-64, a judge of compensation "may
allow to the party in whose favor judgment is entered . . . a
reasonable attorney fee[.]" N.J.S.A. 34:15-64(a). Moreover, by
analogy, a Superior Court judge has "the inherent authority, if
not the obligation, to control the filing of frivolous motions and
to curtail "'harassing and vexatious litigation.'" Zehl v. City
of Elizabeth Bd. of Educ., 426 N.J. Super. 129, 139 (App. Div.
2012) (quoting Rosenblum v. Borough of Closter, 333 N.J. Super.
385, 387 (App. Div. 2000)).
In her written decision, the compensation judge awarded
petitioner a fee for "defense of the various Motions made during
the pendency of the trial . . . based upon the history of the
proceedings." Because judges of compensation are afforded
substantial deference in assessing counsel fees, we are not
convinced the compensation judge here abused her discretion. See
Sroczynski, supra, 197 N.J. at 45-46. The compensation judge
presided over the lengthy trial, and addressed various motions
21 A-1690-15T3
raised by respondent throughout. Respondent, in solely addressing
the motion to dismiss for fraud, while the judge assessed fee was
for "various" motions, does not explain how this fee was an abuse
of discretion, beyond claiming that it was "vindictive." Even if
the motions were not frivolous, the compensation judge had
discretion pursuant to N.J.S.A. 34:15-64(a) to award reasonable
counsel fees. We see no reason to disturb this ruling.
Respondent's remaining arguments, to the extent we have not
specifically addressed them, lack sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(1)(D) and (E).6
Affirmed.
6
Because we denied respondent's motion to amend its notice of
appeal regarding its claim that the compensation judge erred in
granting petitioner's motion to enforce the order of total
disability, this argument is improperly before us.
22 A-1690-15T3