A pro se appellant tried a unique – but unsuccessful – argument to resurrect her Workers Compensation claim which had been dismissed with prejudice after trial. On June 23 the Appellate Division decided the case of Melendez v Burger King, A-1833-19, an unpublished decision which is likely to remain unpublished. Petitioner, an hourly supervisor at a Burger King restaurant, alleged she was injured at work on December 31, 2016 while lifting heavy boxes at work. Burger King denied the claim which ultimately proceeded to a bifurcated trial, with the issue of compensability to be tried first. Petitioner was represented by counsel at trial.
According to the decision, petitioner’s trial testimony was found by the workers compensation judge to be not credible, the judge noting that petitioner had contradicted herself during cross-examination and in her affidavits. In addition, while petitioner testified repeatedly that she was injured on December 31, and even had a co-worker testify she saw petitioner lift a “too heavy” box on the 31st, the restaurant’s general manager presented documentation proving she was not at work on the 31st, and was not even in the store on that date. The judge found she was not working and not at work on the 31st and dismissed her Claim Petition with prejudice.
On appeal petitioner proceeded pro se, arguing that she was “poorly and ineffectively” represented by counsel at trial, alleging a variety of failures on the part of her attorney. Apparently one of the problems with her attorney’s representation of her was the date of her alleged accident at work. While she repeatedly testified she was injured on December 31, and made multiple statements under oath in affidavits stating she was injured on the 31st, on appeal she asserted that she was injured on December 24, not the 31st. While petitioner on appeal conceded her testimony “seemed contradictory,” she blamed this on her attorney. She based her ineffective-assistance-of counsel argument on the US Supreme Court decision of Strickland v. Washington, 466 U.S. 688, 691 (1984).
While not necessary to the affirmance of the compensation judge’s decision, the Appellate Court addressed the issue of ineffective-assistance-of-counsel argument, and the Strickland decision. The Appellate Division clearly pointed out that Strickland held that ineffective assistance claim can only be raised where the litigant has a constitutional right to counsel, such as a defendant’s sixth-amendment right to an attorney in a criminal prosecution. The court further pointed out that a constitutional right to an attorney exists in New Jersey in termination-of-parental-rights cases. As there is no similar right to counsel in a workers compensation claim, the Appellate Division affirmed the compensation judge’s dismissal of her claim with prejudice.
By: Alfred P. Vitarelli, Associate at Brown & Connery, LLP