Opinion
DOCKET NO. A-0737-13T3
07-18-2014
MARY LIU, Petitioner-Respondent, v. BALLY'S CASINO, Respondent-Appellant.
Walter J. LaCon argued the cause for appellant (Cooper, Levenson, April, Niedelman & Wagenheim, P.A., attorneys; Mr. LaCon, on the briefs). Lindsey M. Burwell argued the cause for respondent (D'Arcy Johnson Day, P.C., attorneys; Christopher M. Day, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Lihotz.
On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, No. 2012-29602.
Walter J. LaCon argued the cause for appellant (Cooper, Levenson, April, Niedelman & Wagenheim, P.A., attorneys; Mr. LaCon, on the briefs).
Lindsey M. Burwell argued the cause for respondent (D'Arcy Johnson Day, P.C., attorneys; Christopher M. Day, on the brief). PER CURIAM
Respondent Bally's Casino (Bally's) appeals from a Division of Workers' Compensation order retroactively reinstating temporary benefits granted to petitioner Mary Liu. The judge of compensation (WCJ) concluded sufficient evidence proved petitioner's psychiatric condition directly resulted from a work-place incident.
On appeal, Bally's challenges the factual support for the WCJ's findings, maintaining substantial competent evidence was absent from petitioner's case; respondent's competent evidence was ignored, including the opinion of its expert; petitioner's expert's opinion was conclusory; and no evidence showed petitioner suffered an income lost because of the alleged disability.
Following our review, we agree that critical factual findings made by the WCJ were unsupported. Further, legal conclusions were erroneous. Accordingly, we reverse and remand to a different WCJ.
The underlying facts giving rise to petitioner's claim for workers' compensation are not disputed. Petitioner worked as a dealer at Bally's in Atlantic City. On November 10, 2012, at approximately 9:23 a.m., she was dealing a "2-4-6 limit game" of poker. A customer well known to petitioner "signified a check by forcibly striking the table very hard." Petitioner, who was not facing the customer at the time he smacked the poker table, was startled by the noise. As a result, petitioner's "heart began to race" and her "hands cramped up." A shift manager relieved petitioner and summoned a wheel chair to aid her. Petitioner initially refused the offer to take her to the hospital.
At approximately 10:40 a.m., while still seated in a far corner of the poker room, petitioner's "body started shaking [and] the back of [her] head got [sic] numb." She experienced an increased heart rate accompanied by chest pain. She reconsidered the need for medical treatment, but declined use of an ambulance because of its cost; the shift manager transported petitioner by wheel chair to a taxi and escorted petitioner to the hospital.
Upon arrival at the emergency room (ER), petitioner was treated with Tylenol and Ativan; she spent the next day at home resting. On November 12, 2012, petitioner consulted with her primary physician, whom she explained "gave [her one] month off." Petitioner requested medical leave, which required examination and authorization by a designated workers' compensation doctor.
Petitioner consulted Arvind Patel, M.D., a Bally's-approved physician, who performed an EKG and diagnosed petitioner as suffering an "[a]cute anxiety reaction" and "[c]ostochondritis to the left chest wall." Dr. Patel prescribed Naprosyn and advised petitioner her anxiety would resolve and she could return to work.
The following day, petitioner informed Bally's she "didn't feel okay to go back to work." Petitioner called respondent's workers' compensation insurance carrier. She asserted her family doctor diagnosed her with a "heart problem" and gave her "a month off." Bally's informed her she must return to work.
On November 16, 2012, petitioner resumed working and again experienced discomfort. Her heart rate increased and her hands became cramped. In the late afternoon, she was taken to the ER by ambulance and given oxygen and Ativan. The attending ER physician advised "[she] need[ed] to calm down by [her]self." Petitioner was discharged later that evening. She was reported to have left the hospital in "[g]ood" condition and stated she "fe[lt] better[.]"
Dr. Patel directed petitioner to return in one week. She chose not to, suggesting he "wasn't helping [her] health." On December 12, 2012, petitioner was evaluated by Gary Glass, M.D., a psychiatrist. Dr. Glass determined petitioner appeared depressed and anxious. He recorded her reported symptoms as ongoing panic attacks and social withdrawal. Dr. Glass diagnosed petitioner with an acute stress reaction and prescribed Zoloft, Trazodone and Xanax. He determined she must remain out of work for three weeks.
On January 7 , 2013, petitioner returned to Dr. Glass. She admitted she was "doing . . . better than before[,]" but complained "mild problems" persisted, including recurring "mild nightmares." Dr. Glass recommended petitioner "remain out of work for an additional two to three weeks." During a January 23, 2013 follow-up appointment, petitioner complained of ongoing fatigue, weakness and headaches. Dr. Glass referred petitioner for a neurological consultation. He extended petitioner's need for medical leave until February 11, 2013.
During a February 7, 2013 appointment, Dr. Glass noted petitioner's complaints of "numbness in her fingers and cramping in her forearms," tiredness and yawning. Otherwise he concluded petitioner "seemed fine." He explained to petitioner she should return to work on February 11, 2013. Petitioner then "became more animated and began complaining about her cramping arms and numb fingers[.]"
Following an "emergency call" from petitioner on February 9, 2013, Dr. Glass revised her medications and agreed she should remain out of work until her next visit. He later extended his recommendation that petitioner not return to work until March 4, 2013, subject to the results of her neurological examination.
Chanyang Wang, M.D., performed a neurological evaluation. Dr. Wang reviewed the results of an EMG, EEG and MRI, and found no neurological concerns. He recommended petitioner pursue physical and occupational therapy and opined petitioner's symptoms were caused by anxiety, requiring additional time off from work.
On March 1, 2013, Dr. Glass disagreed with Dr. Wang's assessment, noting he believed petitioner "ha[d] become accustomed to being off and d[id] not desire to return to work . . . ." Dr. Glass acknowledged "culturally and language[-]wise it is hard to conduct any sort of therapy with [petitioner] as she at times does not understand and at other times seems to be faking not understanding but I cannot be certain." He cleared her to return to work on March 7, 2013.
Despite Dr. Glass's opinion, petitioner insisted her family physician, Sun Miao, M.D., prescribed psychiatric care and "put [her] out until May 31, 2013." Petitioner never produced a report from Dr. Miao.
On March 28, 2013, petitioner contacted Bally's Las Vegas Human Resources Office (HR), requesting medical leave with a projected return date of May 31, 2013. HR informed petitioner she did not qualify for Federal Family/Medical Leave and recommended she consider a personal leave of absence.
Petitioner called Dr. Glass "to explain that she c[ould not] work." She complained of continuing nightmares, increased heart rate, numbness in her hands and overall tiredness. Dr. Glass "d[id] not believe that she [was] as anxious as she report[ed]." He opined petitioner had reached maximum medical improvement and believed petitioner was "exaggerating her signs and symptoms for secondary gain."
Petitioner applied for personal leave on April 7, 2013. HR informed petitioner the applicable employee contract provided a maximum of sixty days personal leave. Petitioner also requested an independent medical examination and a consultation with Charles Meusburger, M.D. was scheduled.
On April 15, 2013, petitioner contacted HR requesting personal leave. She did not inform HR she was departing that day for an extended trip to China "to see [her] parents and to relax." HR states petitioner failed to contact the officer thereafter and despite several attempts on "various occasions," HR's efforts to contact petitioner were unsuccessful. At one point, petitioner reached Bally's and stated her "phone was not working and [she was] out of the country relaxing and hung [up] the phone." Petitioner missed the scheduled appointment with Dr. Meusburger.
Petitioner returned from her trip to China on May 20, 2013. However, in a May 9, 2013 letter, Bally's notified petitioner her employment was terminated, essentially for violating the personal leave policy. The record does not reflect petitioner's efforts, if any, to seek rehire.
The letter, entitled "separation of employment," stated based on petitioner's past employment her "record w[ould] reflect resignation with rehire eligibility."
On June 6 and 13, 2013, petitioner attended a rescheduled medical examination with Dr. Meusburger. Following his review, Dr. Meusburger issued this diagnosis: an "[a]djustment disorder with anxiety and depression chronic; acute stress reaction, moderate early remission; post-traumatic stress disorder acute early remission; specific phobia-ongoing; panic disorder without agoraphobia and somatization disorder NOS." Addressing the cause of these conditions, Dr. Meusburger opined "within a reasonable degree of psychiatric/medical certainty" that:
[petitioner] had an acute stress reaction based on an unexpected fearful experience that not only lead [sic] to her being frightened, but also lead [sic] to her being phobic of the casino itself and the reoccurrence [of] possibilities as well as making a mistake and going through the consequences of that.He concluded "[petitioner's] symptoms [were] the direct result of her experience of November 2012 at the casino."
Petitioner filed her petition for workers' compensation benefits. Without the benefit of an evidentiary hearing, the WCJ ordered Bally's to retroactively reinstate petitioner's temporary benefits from June 6, 2013 and "said benefits shall continue pursuant to statute." In a later oral opinion, the WCJ stated he mistakenly understood the provisions of the August 29, 2013 order were by consent. He thereafter amplified the record, and explained the basis for the award. The WCJ stated he "abide[d] by [Dr. Meusburger's] findings that [p]etitioner's condition, that of post-traumatic stress[, wa]s a direct result of her experience on [November 10, 2012]" and petitioner was therefore entitled to temporary benefits. In an additional statement provided on August 24, 2013, the WCJ rejected Bally's legal arguments, finding the facts at bar distinguishable from contrary authority. This appeal followed.
The scope of appellate review of workers' compensation cases is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record[.]'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We defer to the expertise of a WCJ in assessing the disability of an employee, "so long as the judge's findings are supported by articulated reasons grounded in the evidence" in the record. Perez v. Capitol Ornamental Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (citing Lewicki v. N.J. Art Foundry, 88 N.J. 75, 88-90 (1981)). We also note WCJs are considered experts with respect to weighing the testimony of competing medical experts and appraising the validity of compensation claims. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). However, "[a] decision without proper factual findings and a reasoned explanation of the ultimate result 'does not satisfy the requirements of the adjudicatory process'" and is not entitled deference. Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
It is also important that our review broadens "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[.]" Manzo v. Amalgamated Indus. Union Local, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990). If the WCJ's determination "'went so wide of the mark that a mistake must have been made,'" the court may "'appraise the record as if [it] were deciding the matter at inception and make [its] own findings and conclusions.'" Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Amer., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).
A predominant purpose of the Worker's Compensation Act (Act), N.J.S.A. 34:15-1 to -142, "is to provide a quick, efficient remedy for wage loss and the permanent impairment of physical capacity suffered by a workman because of a work-connected injury." Elec. Assocs., Inc. v. Heisinger, 111 N.J. Super. 15, 19-20 (App. Div.), certif. denied, 57 N.J. 139 (1970). More specifically, the aim of temporary disability benefits "is to provide an individual who suffers a work-related injury with a 'partial substitute for loss of current wages.'" Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 428 (App. Div.) (quoting Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966)), certif. denied, 188 N.J. 492 (2006).
Pursuant to N.J.S.A. 34:15-38, temporary disability benefits are payable during a period beginning "the day that the employee is first unable to continue at work by reason of [an] accident[.]" "'Generally, temporary disability continues until the employee is able to resume work and continue permanently thereat or until he [or she] is as far restored as the permanent character of the injuries will permit, whichever happens first.'" Cunningham, supra, 386 N.J. Super. at 427 (alteration in original) (quoting Monaco v. Albert Maund, Inc., 17 N.J. Super. 425, 431 (App. Div. 1952)). "Actual absence from work is a prerequisite to a temporary disability award." Id. at 428 (citing Calabria v. Liberty Mut. Ins. Co., 4 N.J. 64, 68 (1950)).
In establishing a claim for benefits, the burden of proof is on the petitioner, who must prove by a "preponderance of the evidence" that the link between the place of employment and the disease is "probable[.]" Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 11 (App. Div.), certif. denied, 162 N.J. 485 (1999). That burden does not require proof "that the nexus between the disease and the place of employment is certain." Ibid. Further, "[t]he claimant has the burden of proving not only that he [or she] was available and willing to work, but that he [or she] would have been working if not for the disability." Cunningham, supra, 386 N.J. Super. at 432.
On appeal, Bally's argues the WCJ erred in awarding temporary benefits, because various factual findings are unsupported. Bally's second challenge to the award asserts error as a matter of law, because petitioner did not meet her burden of proving she "actually lost income" due to her disability in the period following her post-termination medical evaluation.
Following our review we determine the WCJ failed to critically assess the evidence in the record; and as to findings made, we determine they are not supported by the evidence. Further, the WCJ's rejection, as inapplicable, of our holding in Cunningham v. Atlantic States Cast Iron Co., 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 492 (2006) was erroneous.
Factual findings significant to the conclusion an award was warranted are unsupported. First, Dr. Meusburger's diagnosis in part relied on petitioner's report her "[f]amily physician put the patient out [of work] [sic]" from March 26 to May 31, 2013. However, there is no evidence in the record to support such a diagnosis. When Dr. Glass released petitioner, recommending she return to work on March 7, 2013, no contradictory medical evidence defeated his opinion. Rather, petitioner decided to take an extended vacation out of the country, claiming that leave was ordered by her family physician, Dr. Maio. Petitioner's asserted basis for the trip — as prescribed by her family physician — lacks evidential support and, therefore, may not be accepted. See Colon, supra, 141 N.J. at 9-10 ("a subjective complaint of pain or discomfort without accompanying 'demonstrable objective medical evidence,' N.J.S.A. 34:15-36, does not satisfy a petitioner's burden of proving the existence of partial-permanent disability").
Second, the WCJ made no causation findings, ignoring significant evidence provided by Bally's that challenged petitioner's claims. Ignoring Dr. Glass's determination to clear petitioner to return to work, the WCJ chose to "abide" by the expert opinion of Dr. Meusburger regarding the extent of petitioner's diagnosed psychiatric disability. No analysis of why this expert's opinion, rendered after two close-in-time visits, prevails over the competing expert evidence of Dr. Glass, who treated petitioner over the course of several months, conducting seven visits. See Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89 (1981) ("Although it must be kept in mind that [WCJ]s are regarded as experts . . . and their findings are entitled to deference, . . . such findings nevertheless must be supported by articulated reasons grounded in evidence.").
A WCJ must provide a reasoned review of all evidence and must articulate reasons for rejecting one expert's report in favor of another. Margaritondo v. Stauffer Chem. Co., 217 N.J. Super. 560, 563-64 (App. Div. 1985). As necessary, when credibility is in issue, an evidentiary hearing should be held.
A judge of compensation of course is not bound by the conclusionary opinions of medical experts; however, he [or she] must give consideration to such testimony and evaluate it based upon the doctor's qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based.
[Ibid.]
Here, the WCJ summarily adopted Dr. Meusburger's opinion without providing the required reasoned articulable basis for rejecting Dr. Glass's expert findings that petitioner was exaggerating her symptoms because she had become accustomed to not working and did not want to return. Also absent from review is Dr. Patel's opinion stating petitioner was able to return to work.
We emphasize that it is incumbent on a WCJ to conduct a more searching and meaningful exploration of a petitioner's medical history and conditions when faced with competing and divergent reports by the parties' respective experts. No comparison of Dr. Meusburger's and Dr. Glass's findings and conclusions was made. Nor did the court compare the foundation for those findings and conclusions. The WCJ must assess the basis of the expert opinion, the credentials of the expert, and the circumstances surrounding the opinions offered when accepting one expert's view and rejecting another. Further, if credibility is a factor, an evidentiary hearing must be held.
Third, the record provides no support for the WCJ's conclusion Dr. Glass "mistakenly sen[t petitioner] back to work[.]" No consideration was made of the neurological and other medical testing that revealed no objective explanation for petitioner's alleged symptoms. Further, Dr. Glass treated petitioner for several months, detailing her progress and improvement. His reports confirm petitioner had reached her maximum medical improvement and was capable of returning to work.
Fourth, the WCJ never examined the facts surrounding petitioner's claimed injury to determine whether she proved a compensable, disabling workplace incident. Instead, the WCJ inaccurately recited "a fight broke out at [petitioner's] table [while] she was dealing cards." He also labeled the seemingly benign event of a player smacking a table to signal his decision to hold his cards as a "traumatic incident." No facts substantiate these findings.
Finally, the WCJ failed to address petitioner's decision to reject Dr. Glass's direction to return to work in favor of her choice to embark on vacation. Bally's personal leave policy required HR be informed, approve the request, and that its duration not extend beyond sixty days. Petitioner left for China on April 15, 2013 without clearing the leave with HR. We believe these facts must be assessed and analyzed prior to reaching a determination that "[p]etitioner did not abandon her job" and that but for the traumatic incident, "[p]etitioner would still be at work[.]" Because the findings were made without regard to all the evidence of record, they are erroneous and set aside. See Close, supra, 44 N.J. at 599 (setting aside findings not "reached on sufficient credible evidence present in the record, considering the proofs as a whole" (internal quotation marks and citation omitted)).
As our review shows, identified findings, critical to an award of temporary benefits, were not supported or made without explanation for why competing evidence was rejected. Accordingly, conclusions based on these erroneous findings must be set aside.
Bally's also argues petitioner cannot establish a wage loss resulting from an alleged work-related disability because her employment was rightfully terminated for violating the company leave policy prior to Dr. Meusburger's evaluation establishing her alleged claim for benefits. Consequently, she is precluded from receipt of an award of temporary benefits. Cunningham, supra, 386 N.J. Super. at 432.
In Cunningham, the petitioner "suffered a compensable injury, returned to full duty work, and was later terminated for cause." Id. at 424. At that point, the petitioner made no further efforts toward reinstatement. Id. at 426. Eight days after his termination, the petitioner consulted a physician, whose examination determined he was unable to work because of his prior injury. Ibid. The employer contested the petitioner's entitlement to receive temporary disability and appealed the WCJ's award. Id. at 427.
On appeal, we examined "whether an employee who causes his [or her] own unemployment after resuming employment following a work-related injury should be permitted to receive temporary disability benefits." Id. at 430. We concluded an award of temporary benefits after an employee quits or is terminated on grounds of misconduct, should "focus[] on the causal connection between wage loss and the injury[.]" Id. at 431. Accordingly, we held an award of temporary disability benefits was appropriate if "[an] employee can prove that his or her unemployed status was proximately caused by the injury[.]" Ibid. If that nexus is established, "[t]he claimant has the burden of proving not only that he [or she] was available and willing to work, but that he [or she] would have been working if not for the disability." Id. at 432.
Here, the WCJ concluded "Cunningham [does not] apply due to the specific facts of this case[,]" stating:
[Petitioner] did not abandon her job, and but for the traumatic injury she endured while at her job on [November 11, 2012] a[nd] the resulting diagnosis by [Bally's] Dr. Meusburger of post[-]traumatic stress [disorder] would still be performing her duties at Bally[']s . . . .
Temporary benefits are wage replacement, in the Cunningham case [the
worker] was fired for cause and did not have a job to go back to and therefore was not entitled to temp[orary] . . . wage replacement because there was no lost wages to replace. In the present case at hand, but for the traumatic incident, [p]etitioner would still be at work; and but for a treating doctor mistakenly sending her back to work, there would have been no interruption of temporary benefits.
We have identified the erroneous factual findings underpinning this conclusion. We further note the legal conclusion that Cunningham is inapplicable is wrong. Petitioner is required to establish a nexus between her psychological-psychiatric injury and her loss of income. The evidence presented shows petitioner's decision to take an unauthorized extended absence, without complying with the established personal leave procedures, coupled with her failure to advise HR of her status resulted in her termination. No evidence is offered challenging the efficacy of that employment determination. Thus, petitioner's voluntary removal from the work force preceded Dr. Meusburger's medical evaluation diagnosing her as suffering from post-traumatic stress and other disorders.
It is improper to confer benefits upon a petitioner, who is unwilling to work independent of whether she experienced a work-related psychological condition. See Outland v. Monmouth-Ocean Educ. Serv. Comm'n, 154 N.J. 531, 543 (1998) (remanding a temporary benefits claim for determination of whether a teacher's injury sustained during the school year actually "caused her to lose income she could otherwise have earned from summer employment"). Cunningham instructs a WCJ must find a claimant actually lost income "because of [a] disability." Cunningham, supra, 386 N.J. Super. at 433. Indeed, the requirement to establish causation is codified in N.J.S.A. 34:15-38, stating temporary disability payments are made when an "employee is first unable to continue at work by reason of the accident[.]" This necessary analysis was not undertaken.
We are not persuaded by petitioner's suggestion that denying temporary disability under the circumstances presented effectively authorizes an employer "to terminate an employee at any point before an authorized medical exam . . . ." We find the argument specious.
The Act provides protections against untoward employer conduct. See N.J.S.A. 34:15-39.1 ("It shall be unlawful for any employer or his duly authorized agent to discharge . . . an employee . . . because such employee has claimed . . . work[ers'] compensation benefits from such employer[.]"). In this matter the evidence belies any suggestion Bally's acted inappropriately in terminating petitioner's employment. Bally's did not act abruptly, but unsuccessfully continued to attempt to contact petitioner. Bally's evidence showed petitioner ignored her scheduled medical examination, as well as her obligation to comply with the employer's policies for personal leave. These circumstances tend to suggest petitioner's unwillingness to return to work.
Following our review, in light of our analysis reflecting the WCJ's failure to perform his essential factfinding function, we reverse the order for temporary benefits. See Smith v. E.T.L. Enters., 155 N.J. Super. 343, 348 (App. Div. 1978) ("'[A]n administrative agency acting quasi-judicially must set forth basic findings of fact, supported by the evidence and supporting the ultimate conclusions and final determination[.]'" (quoting Application of Howard Sav. Inst. of Newark, 32 N.J. 29 (1960))). See also Lister, supra, 234 N.J. Super. at 73 ("[W]hen an administrative body renders a decision and fails to make adequate findings of fact and give an expression of reasoning which, when applied to the found facts, led to the conclusion below, the decision cannot stand."). On remand the compensation court must perform a thorough review of the evidence with a direction to make a specific examination of the circumstances surrounding petitioner's termination of employment, including whether volitional conduct — such as petitioner's failure to comply with the employer's leave policies and attend a medical examination in favor of an extended vacation in China — caused her unemployment rather than any work-related injury. Also, a necessary review must be made to discern whether there is a nexus between an employment-related event, the facts of which should also be analyzed, and the evidence of an alleged wage loss. See Cunningham, supra, 386 N.J. Super. at 432. See also Amey v. Friendly Ice Cream Shop, 231 N.J. Super. 278, 284 (App. Div. 1989) (noting "compensability can be defeated by a certain degree of employee misconduct[, which] can best be described as an intentional violation of an express or implied prohibition in the matter of performing the act" (internal quotation marks and citation omitted)).
Finally, in assessing the competing expert opinions regarding the alleged disabling condition, a plenary hearing appears necessary. As we noted in Cunningham, an evidentiary hearing is on occasion necessary to "assure that our State's workers' compensation scheme is faithfully implemented and is fair to both employer and employee." Cunningham, supra, 386 N.J. Super. at 434.
N.J.A.C. 12:235-3.2(f) provides
Affidavits, certifications and medical reports . . . may constitute a prima facie case and may be sufficient basis for the issuance of an order compelling [a] respondent to provide the relief sought unless respondent files supportingWhen, as is the case here, a petitioner's proofs are "contradicted or opposed, the . . . documents are not sufficient basis for an order in petitioner's favor[,]" and "[i]n such a case, [a] petitioner must produce persuasive live testimony to prevail." Hogan v. Garden State Sausage Co., 223 N.J. Super. 364, 366 (App. Div. 1988).
affidavits or certifications to oppose said motion on a legal or factual basis[.]
Reversed and remanded to a different judge of compensation for review, including an evidentiary hearing, in accordance with our opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION