November 5, 2009
SCOTT DEL VECCHIO, PETITIONER-RESPONDENT,
RUTGERS, THE STATE UNIVERSITY, RESPONDENT-APPELLANT.
On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2001-27872.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 20, 2009
Before Judges Skillman and Fuentes.
Rutgers appeals from a December 18, 2008 order of the Division of Workers' Compensation, which denied Rutgers' motion to vacate a July 24, 2008 order of the Division that required Rutgers to continue payment for further surgery and other medical treatment of a knee petitioner injured in a March 2, 2001 work-related accident. The basis of Rutgers' motion was a surveillance videotape that allegedly showed petitioner's testimony at the hearing that resulted in entry of the July 24, 2008 order was fraudulent.
After the filing of this appeal, the Judge of Compensation issued an oral opinion on February 13, 2009, which stated that he had reviewed the videotape and that it did not affect his finding, which was based primarily on the report of petitioner's treating physician that the proposed further surgery on petitioner's knee was medically necessary. On March 16, 2009, the Judge of Compensation issued another oral opinion denying Rutgers' motion for a stay pending the outcome of the appeal, which contained further explanation of his reasons for denying Rutgers' motion to vacate the July 24, 2008 order.
On July 23, 2009, we also denied Rutgers' motion for a stay pending the outcome of the appeal. Petitioner has now had the further surgery on his knee.
We affirm the December 18, 2008 order substantially for the reasons set forth in the February 13, 2009 and March 16, 2009 oral opinions of the Judge of Compensation. We also note that even if the surveillance videotape showed that petitioner gave false testimony at the June 12, 2008 hearing before the Division of Workers' Compensation, Rutgers would only be entitled to reimbursement of the payments it made for petitioner's medical treatment if it could show that he "received benefits... to which [he was] not entitled[.]" N.J.S.A. 34:15-57.4(c)(2). Rutgers failed to make this showing. The testimony of petitioner's treating doctor, Dr. Cornell, provided sufficient evidential support for the Judge of Compensation's finding that petitioner required further surgery for treatment of his work-related knee injury.
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