Three times is the charm. The Appellate Court again addresses the abuse of workers’ compensation judges’ discretion in awarding fees, costs and penalties.

Typically, not many workers’ compensation Superior Court or Supreme Court decisions come down each month. On average, there is one case each month that New Jersey practitioners need to read. So when three cases—albeit all unpublished cases and, therefore, not binding—come out within the year addressing judges abusing their discretion, it certainly sends a message. You may recall in earlier issues of this publication we alerted you to the case of Ripp v. County of Hudson, No. A-2972-20 (App. Div. Jun. 3, 2022), where the Appellate Court found that the judge erred in applying N.J.S.A. 34:15-28.2 and was mistaken in the exercise of discretion in assessing additional fees and penalties for a late payment of an award of disability. Then there was Saiti v. Garden Homes, No. A-1328-20 (App. Div. Oct. 11, 2022), when the Appellate Court found an abuse of the judge’s discretion in entering an order for sanctions without permitting defense counsel to be heard to explain why a settlement payment was delayed to determine if the delay was unreasonable. 

Now, just days before their holiday recess, the Appellate Court issued an opinion finding that one judge’s “awards cannot stand.” In Garzon v. Morris County Golf Club, the court appears to be so appalled by the abuse of discretion and the lack of any analysis in support of the fees, costs, and penalties that it directed the case to be sent to a different workers’ compensation judge on remand. Petitioners’ attorneys undoubtedly will be concerned with this decision as it details and points out that having the discretion to award fees up to a 20%, whether it be on medical and temporary benefits or permanency benefits, that authority “is not unbridled” and “cautioned against a reflexive application of a twenty percent award without a full analysis.” The Appellate Division highlighted that, rather than sending the respondent a message, as petitioner’s counsel requested in assessing fees/cost, workers’ compensation judges should be analyzing whether the petitioner’s attorney’s work on the claim justify those fees. While the court does concede that “the amount of the award is a factor to be considered,” it went on to explain that it has “limited significance in comparison to the more important factors including the nature and extent of the services and the responsibility involved.”
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 1, January 2023 is prepared by Marshall Dennehey 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}