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Bifurcation, Compensability and Other Confusing Things in New Jersey Workers’ Compensation

September 4, 2018

Defense Digest, Vol. 24, No. 3, September 2018

by Robert J. Fitzgerald, Esq.*

Key Points:

  • New Jersey workers’ compensation allows bifurcated trial procedures to tackle preliminary issues without the need to address a final conclusion on permanency benefits.
  • The petitioner must first prove that a claim is compensable before proving entitlement to disability and medical benefits.
  • Where a trial court exceeds the issues to be addressed in a bifurcated trial, the proper remand is appropriate to allow full litigation of the remaining issues.


In Nestor Moran v. Cosmetic Essence, LLC., 2018 N.J.Super. Unpub. LEXIS 573 (N.J. Super. App. Div. Mar 14, 2018), the New Jersey Appellate Court affirmed that in a bifurcated workers’ compensation trial, the Workers’ Compensation Judge cannot enter findings or make determinations on issues not specified in the bifurcated trial agreement. The employer in Moran disputed both the compensability of the claim and the petitioner’s entitlement to temporary disability benefits.

The petitioner claimed he was injured on January 28, 2016, when he felt a “pop” in his back while lifting a heavy box. He reported a back injury via an initial text message on February 1, 2016. The text message did not specifically state the back injury was work-related.

At trial, the parties did not dispute that the petitioner telephoned the employer’s warehouse operations manager that week about an injury and that the petitioner texted he would return to work on February 11, 2016. The petitioner did return on February 11, 2016, and provided a doctor’s note. The general manager, however, told the petitioner he had been absent too often and terminated his employment. At trial, the Workers’ Compensation Judge found the petitioner was “more credible” than the employer’s witnesses and determined the injury was compensable.

On appeal, the employer contended the petitioner did not suffer a work-related injury because his various messages in the days following January 28 , 2016, never indicated the back injury was work-related. Further, the petitioner’s doctor had made a note in his records that the petitioner stated he “was shoveling snow” when his back pain developed. On the first argument, the Appellate Court noted the judge’s findings were supported by the petitioner’s testimony, which the judge found more credible than the testimony of the other witnesses. The court added that the employer was more intent on proving it had a rational reason for terminating the petitioner, a fact that had no bearing on the determination of a work injury. “Even if [petitioner] imperfectly informed [employer] about the injury, it does not necessarily follow—as [employer] seems to contend—that the work-related injury must not have occurred.”

As to the second argument against compensability, the court noted that the petitioner testified that he and his doctor spoke of many things, including the severe blizzard that hit the northeast between January 22 and 24, 2016. The petitioner stated he never told the doctor that snow-shoveling was the cause of his injury. He also indicated the employer never called the doctor to testify about the conversation. Rather, the employer relied solely on the doctor’s otherwise unexplained note. The court reasoned the judge was entitled to give the doctor’s note whatever weight she deemed appropriate, particularly when she was not provided with a further explanation that might have come from the doctor’s testimony. As the court stated, “[c]ommon sense and human nature entitled the judge to assume that the severity of the blizzard days earlier was something Moran and the doctor spoke about and that such a conversation may have been conflated by the doctor when he memorialized in his file the genesis of Moran’s complaints and discomfort.” Accordingly, the Appellate Court affirmed the compensability determination.

However, as to the award of disability benefits, the Appellate Court reversed and remanded, determining that the judge’s other determinations exceeded the trial’s scope. It appeared the actual bifurcation boundaries were never clearly placed on the trial court record. On appeal, counsel represented that the terms of the bifurcation developed during in-chambers discussions never quite made it to open court. As stated on the record, “[t]he parties agreed, with the judge’s acquiescence, to bifurcate the issues so the judge might first determine whether a compensable injury occurred before the parties and the court invested time and energy on other issues not otherwise necessary to reach if the judge answered the preliminary question in [employer]’s favor.”

Based on this bifurcated trial agreement, the Appellate Court found the judge exceeded her authority by finding that the petitioner was entitled to temporary disability benefits and by entering findings about the nature of the injury. According to the court, “These other issues were decided without warning and deprived [employer] of an opportunity to present evidence or to confront the evidence upon which the judge relied.” The court went on to hold that, because the judge exceeded the limits of the bifurcation agreement, the only remedy was to vacate those findings on disability and nature of injury and to remand the case back to the Workers’ Compensation Judge for additional litigation.

While the Appellate Court may choose to bifurcate a worker’s compensation trial to save resources in order to first address things like employment or insurance coverage, the procedures and results can often be confusing unless the issues to be addressed are clearly identified ahead of time. Again, the workers’ compensation system is more informal. It is unclear from this case if the parties completed the required pre-trial memorandum identifying the specific issues. Often, too, the court and/or the parties may change or add issues to be addressed during the course of a trial once it begins and testimony is taken for the first time (since there is no chance for pre-trial depositions). Therefore, if your litigation strategy is to proceed with a bifurcated trial, make sure you develop with your counsel a clear and concise list of the limited issues to be addressed. Otherwise, you end up expending more resources on an appeal.

*Bob is a shareholder in our Mt. Laurel, New Jersey office. He can be reached at 856.414.6009 or



Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact


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Robert J. Fitzgerald
(856) 414-6009


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