Even Respondents Are Entitled To Due Process – Appellate Division Vacates Order Imposing Assessments And Penalties When Respondent Counsel Was Not Permitted To Be Heard

The facts of Safet Saiti v. Garden Homes, A-1328-20, decided October 11, 2022, are simple. On September 3, 2020 an Order for permanency was entered in favor of petitioner. For reasons unknown, payment was not made by respondent within the required sixty-day period from the date of the Order and petitioner’s attorney moved to enforce the Order on November 9. A telephone conference on the motion was held on December 7, by which time payment was still not made. The Compensation Judge then entered an oral decision on December 7. While the transcript of the decision notes the appearance of counsel, the only speaker is the judge rendering the decision. In that decision the judge noted that payment was unreasonably delayed, although not citing any reasons why the delay was unreasonable, and proceeded to impose costs and interest on the on the settlement payment due; an additional assessment of 25% of the monies due for the unreasonable payment delay to the petitioner; attorney’s fees to petitioner attorney; and penalties payable to the Second Injury Fund. These penalties and assessments were made under the statutory authority of N.J.S.A. 34:15-28.2 and the Administrative Code provision of N.J.A.C. 12:235-3.16, which allow a judge to impose such assessments, fees and penalties. This appeal followed.

The appellate court noted that although a compensation judge has such statutory and administrative authority to impose such sanctions, in this situation it was a “…mistaken abuse of discretion to enter the order awarding sanctions without permitting counsel to be heard and without findings as to why the payment delay was unreasonable.” In addition, the court concluded the judge was obliged to consider the length of delay, as well and the size of the late payment, and by implication, the effect a sizeable payment that is delayed beyond its due date would have upon a petitioner and his family. The appellate court then remanded the matter to the judge below to conduct a hearing on these issues.

While this decision does not absolve the respondent from penalties, interest and assessments, it does serve as guidance, and, perhaps a warning that, even in the face of a long delay in payment of an award, due process must be considered and a respondent must be given the opportunity to be heard and present its position or explanation.

This is the second decision in a relatively short period of time in which the Appellate Division has rendered a decision favorable to the respondent. On June 1, 2022, in Lindell v. W.H. Industries, Inc., A-1815-20, the Court affirmed the dismissal with prejudice of three separate Claim Petitions filed by a petitioner. In doing so the court emphasized the importance of judges following the statutory definition of a disability as enacted in the 1979 Amendments to the Workers Compensation Act and as interpreted by subsequent decisions. For further information on Lindell, please see our blog of August 3, 2022.

In both these recent decisions, the Appellate Division looked to statutory requirements to protect the interests of respondents. Whether this is the start of a trendremains to be seen.

If you have any questions, comments or concerns about this topic or other issues related to your worker’s compensation needs, please feel free to contact any member of the workers’ compensation group here at Brown & Connery, LLP via email or call 856-854-8900. Also, please visit the Brown and Connery website at to learn more about our legal services.

By:  Alfred Vitarelli, Associate at Brown & Connery, LLP