March 27, 2008
SARBJIT SINGH, APPELLANT,
CREAM-O-LAND DAIRY, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Labor and Workforce Development, Board of Review, Docket No. 2003-20446.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 17, 2007
Before Judges Gilroy and Baxter.
This is a workers' compensation case. Petitioner Sarbjit Singh appeals from the order of November 27, 2006, which: 1) denied his claim for permanent partial disability; 2) directed him to reimburse respondent Cream-O-Land Dairy $1,350 for court-reporting fees; 3) directed him to return the previously paid voluntary tender of permanent disability in the amount of $12,600, together with interest from October 18, 2006; and 4) directed him to reimburse respondent temporary disability benefits from January 3, 2003, through March 24, 2003, in the amount of $7,278.42, together with interest from October 18, 2006. We affirm.
Petitioner, a truck driver, suffered a compensable injury on May 2, 2002, when he slipped and fell in the back of a delivery truck and sustained injuries to his right shoulder and arm. The accident was reported to his employer that day. Following treatment at the Rancocas Hospital by Dr. Vincent Pierce, petitioner underwent a cervical MRI on June 3, 2002. The MRI disclosed "a right lateral disc herniation at the C5-6 level" with "compression of exiting nerve root and the lateral aspect of the spinal cord on the right," with a disc protrusion at the C6-7 level.
On July 11, 2002, petitioner was examined by Dr. Frederick J. McEliece, a neurosurgeon, who was referred by Dr. Pierce and respondent's insurance carrier. Dr. McEliece's diagnosis was "cervical radiculitis secondary to the herniated disc at, I believe, C5 - 6, although there is a significant degenerative change and protrusion at C6 - 7 as well." On that date, McEliece discussed alternate courses of treatment with petitioner, including an aggressive course of physical therapy and surgery.
On September 11, 2002, petitioner was examined by Dr. John D. Tydings, an orthopedic surgeon, at the request of respondent's insurance carrier. Tydings diagnosed petitioner as suffering from "herniated nucleus pulposus [at the] C5-6 and C6-7" levels. On October 8, 2002, Dr. McEliece scheduled petitioner for surgery, following petitioner's continued complaints of pain. On October 18, 2002, petitioner underwent anterior cervical disc excisions at the C5-6 and C6-7 levels. After the two discs were removed, a bone graft from the right hip was placed at each of the disc spaces. A metal plate was then screwed in position, to stabilize the fusion.
On January 3, 2003, petitioner underwent a physical examination by Dr. Frank P. Santucci to obtain a United States Department of Labor physical examination certificate. The certificate was needed to apply for employment as a truck driver with Banibal Trucking Co., a company owned by petitioner's cousin. Following the physical examination, Dr. Santucci determined that petitioner was physically able to drive trucks, and petitioner received the certificate. Petitioner was employed by Banibal as a tractor-trailer driver from April 2003 through June 2004, during which time he shared the driving of a tractor trailer with his cousin. Petitioner's 2003 tax return disclosed that he had incurred expenses for 195 nights of over-the-road lodging while employed by Banibal and driving for himself part time.
Petitioner purchased his own tractor-trailer and commenced driving for Wills Trucking, Inc., in August 2004. To do so, petitioner underwent a physical examination on July 17, 2004, and denied suffering any disabilities or injuries in the last five years. The examining physician did not note any "previous surgery, deformities, limitation of motion [or] tenderness" to the "spine or other musculoskeletal." It was the examining physician's opinion that petitioner was "in [a] good physical condition." Petitioner continued to work as an independent truck driver from that time forward. Petitioner's 2004 tax return disclosed 276 nights of over-the-road lodging, and a gross income of $86,776.
Contrary to petitioner's employment history since April 2003, he continually professed to his treating and workers' compensation examining physicians that he was unable to work as a truck driver because he could not sit for long periods of time without incurring severe pain. Prior to trial, respondent paid petitioner temporary disability benefits at the maximum rate for 46.37 weeks, for a total payment of $29,203.57. Respondent also made a good faith tender of 12-1/2% of 75 weeks permanent disability at the rate of $168 per week, or $12,600. During a five day trial, the court was presented with testimony from: petitioner; Dr. Irwin Moskowitz, petitioner's orthopedic expert; Dr. Richard Rubin, petitioner's neurological expert; Dr. Timothy Pinsky, respondent's orthopedic expert; and Dr. Erin Elmore, respondent's neurological expert.
On September 14, 2004, petitioner testified that he was limited in the types of activities he was able to perform because of recurring pain in his neck, and that he had not been employed since May 2, 2002, by anyone other than his cousin. Petitioner stated that he worked for his cousin ten to fifteen hours per week, driving his cousin's truck for an hour at a time, on local trips to Pennsylvania and the like, earning approximately $200 to $300 per week. When asked whether he would be able to work more if his cousin had work available, petitioner stated "[n]o, I won't be able to work because of my pain."
On June 1, 2005, petitioner testified again; however, this time, having been confronted with employment records and tax information from Banibal Trucking and Wills Trucking, petitioner acknowledged that he had begun working as a long distance over-the-road trucker for his cousin in April 2003. Petitioner stated that he left Banibal in June 2004, because he was not able to drive a truck long distances. Notwithstanding, petitioner acknowledged that he purchased his own tractor trailer and commenced working for Wills Trucking as an over-the-road truck driver. Petitioner testified next on September 6, 2005, and was confronted with the per diem lodging expenses he claimed on his 2003 and 2004 income tax records when he had previously testified on September 14, 2004, that he had not worked for anyone other than his cousin at Banibal Trucking.
Dr. Moskowitz examined petitioner on February 11, 2004. Petitioner informed the doctor that although he never returned to work for respondent, he was then working part-time as a truck driver. Moskowitz opined that petitioner suffered a 75% partial total permanent disability, secondary to the cervical spine injury. Moskowitz also gave an additional 10% partial total permanent disability for petitioner's permanent scar and bone graft.
Dr. Rubin examined petitioner on April 22, 2004. Rubin stated that there was "subjective evidence of impingement on the spinal cord," causing cervical radiculitis pain. Rubin opined that petitioner suffered a 30% partial total permanent disability because of the radiculitis, evidenced by paresthesia down the right arm into the hand. He also gave 40% partial total permanent disability for a neuro-psychiatric adjustment disorder with depression, determining that was a major reason why petitioner had "not been able to get back into the work force."
Dr. Pinsky examined petitioner on May 12, 2004, and was informed by petitioner that petitioner had remained out of work since the incident in question. Pinsky testified concerning his examination of petitioner. The doctor concluded that not only was petitioner exaggerating the complaints of numbness in his arm, but also that petitioner's complaints did not fit "with known anatomy, and in his particular case[,] in his cervical spine[,] what was done in terms of the surgery." On having petitioner perform a flexion and extension test of the cervical spine, Pinsky stated that he believed petitioner "was offering . . . less than he was fully capable with regard to his range of motion." Pinsky opined that petitioner had sustained a 15% partial total permanent disability, referable to the cervical spine. However, Pinsky amended his opinion, after learning that petitioner had returned to work, reducing his opinion of disability to 10 to 12-1/2% partial total permanent disability.
Dr. Elmore examined petitioner on October 25, 2005, and again on December 12, 2005. Elmore did not find any evidence of permanent neurological or neuro-psychiatric disabilities.
At the conclusion of trial, Compensation Judge Michael Mullen rendered a fifty-page oral decision analyzing: petitioner's testimony; medical records, which included complaints voiced by petitioner during his examinations; petitioner's tax returns and employment records; and the testimony of the various medical experts. Convinced "beyond a reasonable doubt" that petitioner had lied to the doctors concerning the severity of his disability following surgery, his inability to work as a truck driver, as well as lying in the initial stages of trial concerning the same, Compensation Judge Mullen denied petitioner's claim for permanent partial disability. Concerning petitioner's credibility, the judge stated in relevant part:
[T]he heart of this case is the unfortunate desire on the part of [p]petitioner to try and obtain benefits or enhance his benefits by not telling the truth on a continual basis . . . .
So that raises an issue to how could you work for somebody, how could you earn money and have no records. That's just part of the pattern of falsehoods as I see it. That leads me to the conclusion that I ultimately draw.
This is testimony right before me, present before me, and he is working already. He is not only working for a month with his own rig, but he had worked since April of 2003 which takes us back to approximately [seventeen] months of full-time work driving a tractor trailer long distances to Texas, Louisiana, et cetera, in which I will examine in more detail as we proceed. He is telling [respondent's counsel] on cross-examination that he has intentions to work. He does want to work, which is commendable, but he was lying when he said that because he was already working.
Again, he is telling [Dr. Pinsky] that he didn't even plan to have a regular job in the next six months from May of 04. That means even if he [had not] planned to have regular work . . . until November of 04, . . . the facts are clear that he worked most of 03 and all of 04.
We have to give the [p]petitioner credit.
Not only is he lying, but he is really making up a strong lie that one would have to give him some credit for his imagination in making such a point where he doesn't even know what to do with himself when he's actually been driving for, at that point, for [thirteen] months. Frankly, again his testimony upon review, his communication with the doctors upon review, is sad and shocking to the [c]court.
The Compensation Judge directed petitioner to: 1) reimburse respondent $1,350 for seven days of trial court reporting services; 2) return the voluntary tender of $12,600 to respondent; and 3) return $7,278.42 in temporary disability benefits petitioner received from January 3, 2003, through March 24, 2003, together with interest. The judge based his decision on his conclusion that petitioner had violated the civil penalty section of the Workers' Compensation Fraud Act, N.J.S.A. 34:15-57.4c.
On appeal, petitioner argues that the judge erred in determining that petitioner had violated the civil penalty section of the Workers' Compensation Fraud Act, or in the alternative, challenging the amount of penalty imposed.
Generally, "[c]courts . . . give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quoting R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). In workers' compensation cases, the scope of appellate review is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Deference must be accorded to the factual findings and legal determinations of the Judge of Compensation, unless they are "'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) (quoting Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 140 N.J. 277 (1995). "Accordingly, if in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999).
A Compensation Judge may accept the testimony of one expert, and reject the testimony of a second expert, as to whether there is a compensable injury. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). The Compensation Judge has the opportunity to hear witness testimony and evaluate credibility. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 166 (2004). The judge also has special expertise "with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioner's] compensation claim." Ramos, supra, 154 N.J. at 598.
We have considered the issues presented in light of the record, applicable law, the arguments of counsel, and we are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Compensation Judge Mullen in his cogent opinion of November 27, 2006. Nevertheless, we add the following comments.
Petitioner argues that the Compensation Judge erred in determining that he had violated the Fraud Act. We disagree. Although the Compensation Judge determined that petitioner had suffered a compensable injury and that his surgery was necessary, the judge concluded that petitioner had recovered, as of December 2002, to where he could have returned to work as a truck driver. However, rather than return to work, petitioner continued to profess that he was not able to perform the work when examined by his treating and examining physicians, for the purpose of "trying to enhance" his compensation award. Because we are satisfied that there is sufficient, credible evidence in the record to support the Compensation Judge's credibility determinations, we discern no reason to interfere with his conclusion that petitioner violated the civil penalty section of the Fraud Act.
In determining that petitioner had violated the civil penalty section of the Fraud Act, the Compensation Judge concluded that respondent had to prove the violation "beyond a reasonable doubt" because the Fraud Act was both criminal and civil in nature.*fn1 Although not raised by either party, we question the correctness of the judge's ruling.
The criminal provision of N.J.S.A. 34:15-57.4 is distinct and separate from the civil penalty provisions. Clearly, if defendant was charged under Subsection a. of the statute, the State would be required to prove each element of the statute beyond a reasonable doubt. State v. Medina, 147 N.J. 43, 60-61 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed. 2d 688 (1997). However, merely because a civil penalty provision is included within the same statute establishing a criminal offense, it does not necessarily mean that the highest standard of proof is required to recover under the civil penalty provision. See N.J.S.A. 2C:1-13f providing "[i]n any civil action commenced pursuant to any provision of this code[,] the burden of proof shall be by a preponderance of the evidence."
We believe that respondent was only required to prove the violation by a preponderance of the evidence. See Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 175 (2006) (holding that the standard of proof required to prove a violation of the Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30, was by a preponderance of the evidence). However, because we are satisfied from our review of the record that the evidence supports the judge's determination that respondent had proven that petitioner violated the civil penalty sections of the Fraud Act beyond a reasonable doubt, we choose not to decide the issue, determining that the error was in the petitioner's benefit, and therefore, harmless.