Opinion
DOCKET NO. A-2193-14T2
07-12-2016
THOMAS FLAGG, Petitioner-Appellant, v. A.D. TRANSPORT EXPRESS, INC., Respondent-Respondent.
Jeffrey S. Monaghan argued the cause for appellant (Pellettieri Rabstein & Altman, attorneys; Mr. Monaghan, on the briefs). Suzanne Billig (Billig Law, P.C.) argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Agency No. CP-2010-9950. Jeffrey S. Monaghan argued the cause for appellant (Pellettieri Rabstein & Altman, attorneys; Mr. Monaghan, on the briefs). Suzanne Billig (Billig Law, P.C.) argued the cause for respondent. PER CURIAM
Appellant Thomas Flagg appeals from the December 3, 2014 judgment of the Division of Workers' Compensation, which dismissed his claim petition with prejudice. For the following reasons, we affirm.
We derive the following facts from the record. Respondent A.D. Transport Express, Inc. (A.D. Transport) is a transportation company based in Canton, Michigan and doing business in forty-eight states, including New Jersey and Pennsylvania. Flagg was employed by A.D. Transport as a sales representative from July 7, 2007 to April 5, 2011. He was assigned to the Northeast territory, which included New Jersey and the eastern part of Pennsylvania, and worked remotely from his home in Hamilton, New Jersey. Approximately ninety-five percent of his job was making sales calls to A.D. Transport's existing and potential customers. Flagg used his personal vehicle to travel to the sales calls and was required to submit a weekly expense form with accompanying receipts for work-related expenses, including work-related automobile expenses.
A.D. Transport's policy required Flagg to submit a Microsoft Outlook calendar of his daily scheduled appointments a week in advance and accurately record the results of each appointment at the end of each work day. Flagg submitted a calendar for April 28, 2009, which showed he had appointments with customers in Linden, New Jersey the entire day. Except for a breakfast meeting with a customer between approximately 8:30 a.m. and 9:30 a.m. at a diner in East Windsor, Flagg did not record the results of any appointments that day, nor did he record he had been in a automobile accident.
Flagg claimed that his afternoon appointments in Linden were canceled, so he made three or four calls to customers in Pennsylvania and, at the direction of Gregory Bohl from A.D. Transport, also went to CTX/Smart Management (CTX) to collect a large outstanding balance. Bohl denied that he directed Flagg to go to CTX; there was no record of Flagg's call to any customers in Pennsylvania; and none of the Pennsylvania customers corroborated that he visited their companies that day.
A representative from CTX testified at the hearing before the Judge of Compensation, but did not confirm that Flagg was at CTX on April 28, 2009.
At approximately 3:00 p.m. on April 28, 2009, Flagg was involved in an automobile accident in Morrisville, Pennsylvania. He claimed he was working at the time, returning to New Jersey to make a final sales call. He also claimed that the next day, he reported the accident to his supervisor, Edward Fogarsi, and told Fogarsi he needed to lease a vehicle while his vehicle was being repaired. Fogarsi denied that Flagg called him, and Flagg produced no evidence of the alleged call. In addition, Flagg lost no time from work; never leased a vehicle; never submitted any medical documentation; and his expense report and work- related expense receipts showed he was only in New Jersey on April 28, 2009.
Nearly one year later, in an email dated April 2, 2010, Flagg notified A.D. Transport of the April 28, 2009 accident. On April 21, 2010, Flagg filed a workers' compensation claim petition. Thereafter, he altered his April 28, 2009 Microsoft Outlook calendar to reflect that he made customers calls in Pennsylvania that day and had been involved in an automobile accident. Flagg claimed he made the changes at the direction of A.D. Transport's president, Gary Percy; however, Percy denied this, and A.D. Transport produced a document wherein Flagg apologized to Percy for improperly making the change. Flagg was subsequently terminated for twice falsifying company documents.
A.D. Transport denied Flagg's petition and filed a motion to dismiss with prejudice based, in part, on N.J.S.A. 34:15-17, which provides as follows:
Unless the employer shall have actual knowledge of the occurrence of the injury, or unless the employee, or some one on his behalf, or some of the dependents, or some one on their behalf, shall give notice thereof to the employer within fourteen days of the occurrence of the injury, then no compensation shall be due until such notice is given or knowledge obtained. If the notice is given, or the knowledge obtained within thirty days from the occurrence of the injury, no want, failure, or inaccuracy of a notice shall be a bar to obtaining compensation, unless the employer shall show
that he was prejudiced by such want, defect or inaccuracy, and then only to the extent of such prejudice. If the notice is given, or the knowledge obtained within ninety days, and if the employee, or other beneficiary, shall show that his failure to give prior notice was due to his mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation or deceit of another person, or to any other reasonable cause or excuse, then compensation may be allowed, unless, and then to the extent only that the employer shall show that he was prejudiced by failure to receive such notice. Unless knowledge be obtained, or notice given, within ninety days after the occurrence of the injury, no compensation shall be allowed.
In a December 3, 2014 written opinion, Judge of Compensation Ingrid L. French made detailed factual findings and dismissed the petition with prejudice. The judge found that Flagg lacked credibility and, relying on the competent evidence, held that Flagg failed to give A.D. Transport timely notice of the accident contrary to the requirements of N.J.S.A. 34:15-17.
On appeal, Flagg contends Judge French erred in dismissing the petition based on N.J.S.A. 34:15-17; permitting Fogarsi and Bohl to testify via videoconferencing from A.D. Transport's Michigan office; and allowing Percy to be present in the room in which the videoconferencing was taking place. Flagg also contends the record lacked sufficient credible evidence supporting the judge's factual findings.
Flagg claims that his attorney filed a motion to preclude A.D. Transport from presenting additional lay testimony; however, the purported notice of motion in Flagg's appendix does not seek to bar video-conference testimony, it bears no filing date, and there is no proof of service on A.D. Transport. In addition, there is no transcript or order reflecting the court's consideration and disposition of that purported motion. --------
Our review of workers' compensation cases is limited. Hersh v. Cty. of Morris, 217 N.J. 236, 242 (2014). We must determine
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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.
[Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).]
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 "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). 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). However, we afford no deference to a judge of compensation's interpretation of the law and review legal questions de novo. Renner v. AT&T, 218 N.J. 435, 448 (2014).
We have considered Flagg's arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge French in her comprehensive and well-reasoned written opinion, which are more than amply supported by the record. However, we make the following brief comments.
The record does not reflect that Flagg made a contemporaneous objection to either Fogarsi or Bohl testifying via videoconferencing. Nonetheless, even had Flagg objected, he cites no authority prohibiting presentation of testimony in this manner.
Flagg did object to Percy's presence in the conference room during the videoconferencing of Fogarsi's and Bohl's trial testimony; however, Judge French properly overruled the objection. As a representative of A.D. Transport, Percy had the right to be present at trial. See Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233, 235 (1992) (finding that a corporation has the right to be present at trial and, therefore, "an officer or employee of a corporation who is designated as the corporation's representative may not be sequestered").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION