LILIA ORELLANA VS. CHABAD LUBAVITCH JEWISH CENTER OF MONROE (DIVISION OF WORKERS' COMPENSATION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4251-17T3
LILIA ORELLANA,
Petitioner-Respondent,
v.
CHABAD LUBAVITCH JEWISH
CENTER OF MONROE,
Respondent-Appellant.
_____________________________
Argued September 10, 2019 – Decided October 9, 2019
Before Judges Yannotti and Firko.
On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2017-030632.
David Hoffman argued the cause for appellant
(Wysoker Glassner Weingartner Gonzalez &
Lockspeiser, PA, attorneys; David Hoffman, on the
briefs).
Robert Blair White, III argued the cause for respondent
(Garces Grabler & LeBrocq, PC, attorneys; Robert
Blair White, III, on the brief).
PER CURIAM
Respondent Chabad Lubavitch Jewish Center of Monroe (Center) appeals
from orders entered on March 26, April 16, and May 7, 2018 by the Division of
Workers' Compensation. On March 26, the judge of compensation converted a
pretrial conference to a motion for temporary disability and medical benefits.
The April 16 order granted petitioner Lilia Orellana's motion and awarded her
temporary disability and medical benefits. The May 7 order dismissed, without
prejudice, a claim for benefits against the Rabbinical College of North America
(RCA). We affirm.
I.
Orellana, an illegal alien, worked for the Rabbi Eliezer Zaklikovsky and
his wife, Chanie Zaklikovsky, off-the-books as a domestic helper, and asserts
the Center was her employer. Orellana also claims that the Center employed the
Zaklikovskys and allowed them to live in a residence owned by the Center in
Monroe.1
1
Four petitions were filed in this matter: one against the Center and its carrier,
Church Mutual Insurance; one against the Center as an uninsured entity; and one
against the Zaklikovskys individually. The petition against the Center as an
uninsured entity was amended to include the Zaklikovskys and Avraham Altein
in their corporate capacities and is the subject of this appeal.
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On August 23, 2017, during the course of her employment, Orellana
slipped and fell on stairs at the Zaklikovsky home. Unable to stand, Orellana
was transported by ambulance, ordered by the Zaklikovsky's daughter, to an
emergency room for treatment. Orellana sustained a meniscal tear to her left
knee, as well as lumbar and cervical herniations. She testified that the
emergency room personnel would not treat her injuries because they were work-
related and her employer "had to be notified." The Center did not maintain
workers' compensation insurance at the time of petitioner's accident.
Thereafter, Orellana amended her petition to assert claims against the
Zaklikovskys as the Center's owners and principal operators. The Center moved
to join the RCA as a party, claiming RCA was Orellana's employer, and that
RCA should provide coverage for her injuries since the Center was uninsured.
The judge of compensation granted an adjournment early on in the
proceedings to allow the parties to resolve the coverage dispute. At the March
5, 2018 hearing, counsel for respondents requested an adjournment so that their
new counsel could get "up to speed." Noting his frustration, the judge of
compensation stated:
I'm thinking of an entirely new thought and I say it on
the record that if anyone wants to look at the record they
can see a [j]udge who is trying to be considerate of the
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fact that there is a legislative intent of the law to provide
a speedy and efficient remedy.
The words of our courts were carefully selected when
they declared speedy before efficient. Respectfully[,]
speedy is my emphasis.
....
I'm expediting this case. I'm exercising judicial
prerogative.
....
This [p]etitioner took care of [the Zaklikovsky's] child.
The [p]etitioner needs care. I don't sense enough caring
from the [R]abbi and his wife. They obviously chose
to respectfully delay today. They relied upon a fine
veteran attorney to come into court just to
respectfully[,] on my impression[,] give them cover for
today.
At the March 12, 2018 hearing, no counsel appeared on behalf of the
Zaklikovskys and the judge of compensation admonished their counsel of record
for not appearing.
Orellana testified at the March 26, 2018 hearing that Ms. Zaklikovsky
would not approve medical care, told her to apply for "Charity Care," and denied
she fell at the Zaklikovsky's home. Orellana also testified following the
accident, the Rabbi told her "[she] could not file a claim because [she] was
illegal and that maybe [i]mmigration would take [her] away." Despite her
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attempts at seeking medical treatment, Orellana was refused care because "she
hurt herself at work," and the healthcare providers she consulted with advised
her the matter "needs to be handled through worker's compensation."
Orellana underwent treatment at Capital Health Clinic until it was
discovered her injuries were work-related. After undergoing an MRI 2 of her left
knee at another facility, Orellana only received physical therapy for her knee
injury and not her back pain because that was all she could afford.
The parties agreed to continue the hearing on April 16, 2018. However,
the Zaklikovskys did not appear on that date even though they agreed , by way
of a consent order, to appear and testify in lieu of being deposed as previously
ordered. The judge of compensation ordered the Center to pay "for all necessary
[and] related treatment" required by Orellana as arranged with the Rothman
Institute. She was awarded $9520 in temporary disability benefits, and a portion
of her attorney's fees. Orellana underwent knee surgery on April 19, 2018, and
continued physical therapy.
At the May 7, 2018 hearing, counsel for RCA's worker's compensation
carrier advised the judge of compensation the coverage issue could not be
determined as of that date. Based upon a lack of evidence and testimony from
2
Magnetic Resonance Imaging.
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the parties, the judge of compensation dismissed the claim against RCA without
prejudice. Moreover, since Orellana filed a direct claim petition against RCA,
the Center's motion to join RCA became moot. The Zaklikovskys did not appear
at the May 7 or May 15, 2018 hearings. Orellana has been unable to return to
work due to her injuries.
On appeal, the Center argues that the judge of compensation erred by (1)
accelerating the pretrial conference to a motion for temporary disability and
medical benefits, in violation of N.J.A.C. 12:235-3.2(a); (2) granting medical
treatment and retroactive benefits to Orellana because she failed to submit an
affidavit or certification and medical report as required by N.J.A.C. 12:235-
3.2(b)(2); (3) closing the record prematurely as to the potential claims against
RCA, thereby depriving the Center of worker's compensation coverage under
N.J.S.A. 34:15-87; and (4) denying the Center of its due process rights because
the Center was given insufficient time to retain separate counsel for co -
respondents. We disagree and conclude there is sufficient credible evidence in
the record to support the judge of compensation's findings.
II.
This court generally gives "substantial deference" to agency
determinations. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262
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(2003) (citations omitted). "In workers' compensation cases, the scope of
appellate review is limited to 'whether the findings made could reasonably have
been reached on sufficient credible evidence present in the record, considering
the proofs as a whole, with due regard to the opportunity of the one who heard
the witnesses to judge of their credibility.'" Ibid. (quoting Close v. Kordulak
Bros., 44 N.J. 589, 599 (1965)). This court must defer to the judge of
compensation's factual findings and legal determinations "unless they are
'manifestly unsupported by or inconsistent with competent[,] relevant[,] and
reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting
Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994)).
This court will not substitute its judgment for that of the judge of
compensation, even if the court would reach a different result when considering
the facts anew. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div.
2000); see also Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J.
Super. 359, 367 (App. Div. 1996) (stating that an appellate court should consider
whether the judge of compensation's decision "could reasonably have been
reached on sufficient credible evidence in the record, considering the proofs as
a whole, giving due regard to his expertise in the field of workers' compensation
and his opportunity of seeing the witnesses and evaluating their credibility.").
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However, where the focus of the dispute is not on
credibility but, rather, alleged error in the trial judge's
evaluation of the underlying facts and the implications
to be drawn therefrom, our function broadens
somewhat. Where our review of the record "leaves us
with the definite conviction that the judge went so wide
of the mark that a mistake must have been made," we
may "appraise the record as if we were deciding the
matter at inception and make our own findings and
conclusions."
[Manzo v. Amalgamated Indus. Union Local 76B, 241
N.J. Super. 604, 609 (App. Div. 1990) (quoting C.B.
Snyder Realty v. BMW of N. Am., 233 N.J. Super. 65,
69 (App. Div. 1989)).]
We disagree with the Center that the judge of compensation erred by
accelerating the pretrial conference to a motion for temporary disability and
medical benefits in violation of N.J.A.C. 12:235-3.2(a), which provides a motion
for temporary disability and/or medical benefits
shall evidence that petitioner is currently temporarily
totally disabled and/or in need of current medical
treatment. Where only past periods of temporary total
disability and/or medical expenses are claimed by
petitioner, such issues should be presented at pretrial
for resolution or trial and not by motion under this
section.
The Center argues that by permitting Orellana to testify on the same day
the case was listed as "pretrial no adjournment," the fundamental aspects of a
motion under N.J.A.C. 12:235-3.2(a) were violated.
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When the Division [of Workers' Compensation] has
received a notice of motion for temporary disability
and/or medical benefits filed . . . it shall list the motion
for a hearing before a [j]udge of [c]ompensation
peremptorily within [thirty] days of the filing of the
motion. Motions for medical and/or temporary benefits
shall commence and continue in a timely manner
subject to the scheduling constraints of the Division.
Said scheduling may be accelerated as ordered by the
Director, the [s]upervising [j]udge of the vicinage, or
the [j]udge of [c]ompensation to whom the case is
assigned.
[N.J.A.C. 12:235-3.2(e) (emphasis added).]
But the judge of compensation informed the parties at the March 12, 2018
hearing that he would elicit testimony from Orellana at the March 26, 2018
hearing:
[I]n order to give extraordinary due process, we're
putting the parties on notice by requiring the
[p]etitioner's testimony on the 26[th]. The
[r]espondents can hear the testimony of the [p]etitioner
on the 26[th]. They can hear the testimony of the
woman who cared for their child. They can hear her
testimony. They can watch. They can listen[]. They
can learn and they can understand why this woman is
crying out for the [c]ourt's assistance in securing her
treatment.
Moreover, the judge of compensation noted that the Zaklikovskys' counsel
was noncompliant with court ordered obligations, and the judge was "troubled
by the threat" made by the Rabbi to Orellana about potential immigration
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consequences and the "chilling effect" it could have on the case. The judge of
compensation aptly concluded that Orellana . . ."deserves a speedy and efficient
remedy with the provision of medical treatments and temporary disability
benefits . . . ." The disposition of the judge of compensation is wholly consistent
with the statutory scheme.
The Center argues that it was denied due process by the judge's decision
to accelerate the matter. "[A] workers' compensation judge is not strictly bound
by rules of evidence and procedure but must respect and insure due process and
fundamental rights of litigants." Waters v. Island Transp. Corp., 229 N.J. Super.
541, 547 (App. Div. 1989). As the Supreme Court observed, "[d]ue process is
not a fixed concept . . . but a flexible one that depends on the particular
circumstances. Fundamentally, due process requires an opportunity to be heard
at a meaningful time and in a meaningful manner." Doe v. Poritz, 142 N.J. 1,
106 (1995) (internal citations omitted).
Orellana testified in support of her motion on March 26, 2018, and the
parties agreed to continue the hearing on April 16, 2018. All parties were
represented by counsel. The judge ordered an expedited transcript from the first
hearing date. The Zaklikovskys failed to appear for the April 16, 2018
proceeding even though they agreed to entry of a consent order that stated t hey
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would appear and testify. No rebuttal testimony or evidence was presented on
their behalf.
The judge of compensation properly found that the Zaklikovskys did not
defend the motion. Therefore, there is sufficient, credible evidence to support
the judge of compensation's order awarding relief to Orellana. We are
unpersuaded by the Center's argument that it was deprived of the right to control
Orellana's treatment. The judge of compensation properly concluded the Center
relinquished its right to do so and enabled the judge to decide the issue. The
Center's argument wholly lacks merit and the judge of compensation did not
abuse his discretion in accelerating the motion for benefits.
The award under N.J.A.C. 12:235-3.2(h) authorizes a judge of
compensation to "order one carrier or employer to pay benefits without prejudice
and subject to an order of reimbursement if another party is later held liable for
such benefits." Therefore, there was no prejudice to the Center.
In granting Orellana's request for retroactive, temporary disability
benefits, and ongoing benefits, we likewise discern no error. The record shows
the judge of compensation determined Orellana was "super credible" and a
"hard[-] working[,] remarkable lady [who] provided quality care to [the child]
and the [R]abbi and his wife." Although the Center now contends its due process
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rights were denied by the hearing going forward, it presented no rebuttal
evidence. Furthermore, in this appeal, the Center has not identified any aspect
of the proceedings that it was unable to challenge. Instead, respondents simply
chose to ignore the judge's orders and not appear at the hearing.
III.
Lastly, the Center argues that the judge of compensation improvidently
denied its motion to implead RCA, leaving the Center without recourse on its
indemnification claim. We reject this argument.
First, the Center's motion to implead was denied because RCA was not
given notice as required by Rule 4:8-1.3 N.J.A.C. 12:235-3.6(c) provides: "It
shall be the responsibility of the moving party to give notice of any hearing of
the motion to the party sought to be impleaded."
3
Rule 4:8-1 requires a party to
serve a summons and third-party complaint, together
with a copy of plaintiff's complaint, upon a person not
a party to the action who is or may be liable to
defendant for all or part of the plaintiff's claim against
defendant and may also assert any claim which
defendant has against the third-party defendant
involving a common question of law or fact arising out
of the same transaction or series of transactions as the
plaintiff's claim. The third-party plaintiff shall serve a
copy of the third-party complaint upon the plaintiff[.]
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Second, the Center's motion to implead was denied without prejudice.
After hearing testimony, the judge of compensation found there was no nexus
between Orellana's employment and the RCA. Since the motion was denied
without prejudice, the Center can re-file it if evidence of RCA's involvement is
shown.
We conclude that the Center's remaining arguments—to the extent we
have not addressed them—lack sufficient merit to warrant any further discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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