N.J. Admin. Code § 12:235-3.12

Current through Register Vol. 56, No. 8, April 15, 2024

Section 12:235-3.12 - Conduct of formal hearings

(a) The following concern appearances:

1. Only an attorney at law licensed to practice in the State of New Jersey shall act as attorney of record.

i. A substitution of attorney is permitted by filing a Substitution of Attorney (WC-10) form any time up to the commencement of a trial when another attorney is being substituted to represent a party. At or after the commencement of trial, a substitution of attorney must be approved by a Judge of Compensation.

ii. An attorney who has entered an appearance for a party must file a motion to be relieved as counsel when another attorney is not being substituted. Notice of such motion, including the date of the hearing, shall be given to the client to afford an opportunity to be heard on the motion.

2. Unless otherwise required by law to be represented by counsel and, subject to (a)1ii above, when an attorney has entered an appearance, a party may appear pro se.

3. A medical provider or carrier, who claims to have performed services or made payment for a work related condition or disability, may intervene by motion in a pending case, to seek payment or assert a lien. Such motion shall be supported by an affidavit or certification and shall include a copy of the bills for which payment is being sought.

(b) Attorneys representing both petitioners and respondents shall provide sufficient personnel to handle all lists expeditiously.

(c) Hearings shall be scheduled by the Director or a designated representative of the Director.

(d) The Judge of Compensation shall, at the commencement of the day, call the list of cases in open court. No adjournment shall be granted unless there is found to be good cause. No adjournment shall be granted for medical examination unless the name of the examining physician and date of examination are supplied.

1. "Good cause" for an adjournment shall not include that the injury or illness upon which the subject claim before the Division of Workers' Compensation is based is also the basis for a pending application to a pension fund administered by the Division of Pensions and Benefits within the Department of the Treasury, including, but not limited to, the Public Employees' Retirement System (PERS), the Police and Firemen's Retirement System (PFRS), and the Teachers' Pension and Annuity Fund (TPAF), for an accidental disability pension allowance.

(e) Trials shall commence and continue in a timely manner subject to scheduling constraints of the Division. Said scheduling may be accelerated as ordered by the Director, the Supervising Judge of the vicinage or the Judge of Compensation to whom the case has been assigned. A Judge shall issue a preemptory trial scheduling order for all cases that have been listed as a partial trial for six months.

1. Except in situations where there is no material dispute of fact, issues shall not be decided until all sides have had the opportunity to provide full proofs based upon, but not limited to, oral testimony, affidavits and other proofs as stipulated by the parties or required by the judge.

2. Except where the judge for good cause directs otherwise, the order of proofs at trial shall be:

i. Appearances;

ii. Stipulated facts;

iii. Rulings on motions including motions to modify order of proofs;

iv. Opening statements;

v. Testimony of petitioner;

vi. Testimony of petitioner's lay witnesses;

vii. Testimony of respondent's lay witnesses;

viii. Testimony of petitioner's non-medical expert witnesses;

ix. Testimony of respondent's non-medical expert witnesses;

x. Testimony of treating medical experts;

xi. Testimony of petitioner's medical experts unless testimony waived and reports submitted into evidence;

xii. Testimony of respondent's medical experts unless testimony waived and reports submitted into evidence;

xiii. Ruling on motions at the conclusion of testimony including motions to call additional witnesses upon a showing of good cause;

xiv. Closing statements; and

xv. Post trial briefs.

3. Bifurcation of any trial may be permitted by the Judge of Compensation to whom the case is assigned. The order of proof shall be determined by the Judge of Compensation.

(f) All formal hearings or applications shall be conducted in open court, except:

1. The Judge of Compensation to whom the case is assigned may deem the matter so delicate that the hearing of a party or witness in camera is warranted. When this occurs, a stenographic record shall be made.

2. The telephonic testimony of a witness may be permitted for good cause by the Judge of Compensation to whom the case is assigned and with the consent of the parties. When this occurs, a stenographic record shall be made.

3. Deposition testimony of a witness in lieu of an appearance other than that provided under 12:235-3.7 may be permitted by the Judge of Compensation to whom the case is assigned and with the consent of the parties.

4. Testimony of witnesses by video teleconferencing procedures may be permitted for good cause by the Judge of Compensation to whom the case is assigned. When this occurs, a stenographic record shall be made and all costs associated with the use of video teleconferencing shall be borne by the requesting party.

(g) All formal hearings including motions where a record is required shall be recorded stenographically by a certified shorthand reporter subject to such limitation as may be provided by statute.

1. Upon a determination reached at the conclusion of all hearings, including motions, the cost for the attendance of the certified shorthand reporter shall be assessed by the Judge of Compensation. Transcripts of the testimony may be obtained from the certified shorthand reporter at the official scheduled rates.

(h) When there are pending in the Division two or more formal proceedings involving a common question of law or fact arising out of employment by the same employer or different employers, or out of the same accident or series of accidents, or out of the same exposure or series of exposures, to causes of occupational disease, the Judge of Compensation or the Director may, on motion, or on the Judge's own initiative, order a joint hearing of any or all matters in issue. The Director or the Judge of Compensation may order all such proceedings consolidated, and have such orders concerning proceedings designed to avoid unnecessary costs or delay. The order shall state the county in which the consolidated proceedings are to be heard.

(i) Upon the commencement of a formal hearing, counsel may make opening statements on behalf of their respective clients. All matters agreed upon shall be stipulated upon the record. However, this shall not bar the parties from making further stipulations as the trial proceeds, until the close of the formal hearing.

(j) Counsel may make closing statements or file post-trial briefs. Post-trial briefs, if ordered or volunteered, shall be submitted within 15 days after the conclusion of the hearing. Each party thereafter may have seven days to file a reply brief, if so desired or ordered.

(k) Prior to the testimony of an expert witness, the producing party shall provide the Judge of Compensation and opposing counsel with a written curriculum vitae of the witness.

(l) Questions calling for the opinion of an expert witness need not be hypothetical in form, unless the Judge of Compensation in the Judge's discretion so requires. If the hypothetical question is submitted in written form, counsel shall provide sufficient copies for the Judge of Compensation, opposing counsel, the witness and the stenographer, and the hypothetical question may be marked as an exhibit in the proceedings in lieu of reading it to the witness.

(m) All medical experts for both parties who regularly examine petitioners to determine the nature and extent of their disability shall adhere to the vacation schedules established annually by the Director. If such medical expert is not available to testify because of an unexcused absence at any other time, the Judge of Compensation may require the party for whom such medical witness is to appear, to arrange for an examination and appearance at trial by another medical expert.

1. A medical expert who regularly examines petitioners means a medical expert who performs a minimum of 25 workers' compensation examinations per year.

(n) All exhibits shall be marked with an identifying number, the date of submission and initials of the court reporter or the Judge.

1. An exhibit list shall be prepared by the Judge to be retained in the file and forwarded to the Division for microfilming and storage.

2. At the conclusion of the hearing, the Judge shall determine which exhibits are to be retained in the file and forwarded to the Division for microfilming and storage.

3. All other exhibits shall be returned to respective counsel for retention until the expiration of time for appeal or 20 years as determined by the Judge.

(o) When a deposition has been taken to preserve the testimony of an injured or ill petitioner the introduction into evidence of such deposition shall be limited to those cases where the deponent cannot appear because of medical inability to appear or death or where all parties consent to the introduction of the deposition into evidence.

(p) Judges of Compensation may refer the petitioner to the Division of Vocational Rehabilitation when warranted.

(q) Prior to testifying, a witness shall be administered an oath by the Judge of Compensation or by a certified shorthand reporter qualified to administer oaths. Because of religious beliefs, a witness may affirm in place of an oath.

(r) Forms of subpoena, bearing the seal of the Department, shall be made available at all district offices. A party may prepare a subpoena and authorize its service, in accordance with the New Jersey Rules of Court, in the name of the Judge of Compensation assigned to the case, to compel the attendance of witnesses and the production of books and papers and such other items as shall be subject to production. However, the return date of such subpoena will be the date of the workers' compensation proceeding instead of the date of deposition referred to by the New Jersey Rules of Court. A copy of the subpoena shall also be provided to the Judge of Compensation whose name appears on the subpoena.

(s) When a party has unreasonably failed to present its case in a timely fashion, the Judge of Compensation may, upon 21 days notice, close the proofs as to that party.

(t) All reserved decisions shall be rendered by the Judge of Compensation within 30 days from completion of the last day of hearing, or within 30 days from the date of filing of briefs. Additional time to render reserved decision may be allowed only on approval of a written application to the Director.

(u) The Judge of Compensation shall notify all parties by letter of the decision, detailing its terms and the name of: the reporter and the certified shorthand reporting firm to which it has been dictated; centralized word processing center; or other method by which the opinion is produced.

(v) A judgment or an order shall be deemed entered as of the date the judgment or order is signed by the Judge.

(w) (Reserved)

(x) A party proposing the form of judgment or order may forward the original thereof to the Judge who heard the matter and shall serve a copy thereof on every other party together with a notice advising said party that unless they notify the Judge and the proponent of the judgment or order in writing of their specific objection thereto within 10 days after such service, the judgment or order may be signed in the Judge's discretion. If no such objection is timely made, the Judge may forthwith sign the judgment or order. If objection is made, the matter may be listed for hearing in the discretion of the Court.

N.J. Admin. Code § 12:235-3.12

Amended by R.1991 d.466, effective 9/3/1991.
See: 23 N.J.R. 1759(a), 23 N.J.R. 2642(a).
Moral turpitude removed as standard at (b); bifurcation of trials, accelerated scheduling allowed; post-trial brief form required; medical expert and exhibit retention requirements added; decision schedule changed.
Amended by R.1997 d.110, effective 3/3/1997.
See: 28 N.J.R. 4067(a), 29 N.J.R. 799(a).
In (h), inserted reference to the Judge of Compensation; inserted new (s); recodified former (s) through (u) as (t) through (v); in (v), inserted references to an order and deleted reference that judgment be final; and added (x).
Amended by R.1999 d.285, effective 8/16/1999.
See: 31 N.J.R. 737(a), 31 N.J.R. 923(a), 31 N.J.R. 2393(a).
In (e), added 1; and rewrote (f).
Amended by R.2002 d.340, effective 10/21/2002.
See: 34 N.J.R. 2257(a), 34 N.J.R. 2549(a), 34 N.J.R. 3641(d).
Rewrote the section.
Amended by R.2004 d.263, effective 7/6/2004.
See: 36 N.J.R. 1350(a), 36 N.J.R. 3294(a).
Rewrote (a) and (r).
Recodified from N.J.A.C. 12:235-3.10 by R.2009 d.299, effective 10/5/2009.
See: 41 N.J.R. 1935(a), 41 N.J.R. 3807(a).
Former N.J.A.C. 12:235-3.12, Notice of appeal, recodified to N.J.A.C. 12:235-3.14.

Amended by 54 N.J.R. 448(a), effective 3/7/2022