January 30, 2012
LOUIS DUBREL, PETITIONER-APPELLANT,
MAPLE CREST AUTO GROUP, RESPONDENT-RESPONDENT.
On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2005-35155.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 21, 2011
Before Judges Axelrad and Ostrer.
Petitioner Louis DuBrel appeals from the January 26, 2011 order of the Division of Workers' Compensation (Division) dismissing his petition with prejudice and terminating his benefits pursuant to N.J.S.A. 34:15-57.4(c)(1) following a bench trial. The Judge of Compensation found petitioner's testimony that he no longer drives horses to be "purposefully and knowingly false" and "made for the purpose of obtaining benefits," which conduct was "so flagrantly galling as to constitute a serious violation per se" for purposes of the aforementioned statute. On appeal, petitioner argues the court improperly admitted testimonial and documentary evidence, which deprived him of a fair trial. He alternatively argues the court exceeded the scope of the trial by depriving him of all benefits. We are not persuaded by petitioner's arguments and affirm.
At trial commencing on September 24, 2009, the parties stipulated that petitioner met with a compensable work-related injury in February 2004. Trial continued on February 9, May 4, and July 27, 2010. In response to petitioner's objection to respondent's motion to admit certain evidence, Judge J. Randall Corman gave both counsel an opportunity for additional submissions. He rendered an oral decision on September 7, 2010, admitting the challenged evidence.
Respondent then moved for dismissal of petitioner's claim with prejudice pursuant to N.J.S.A. 34:15-57.4(c)(l) based on petitioner's testimony that after the accident he could no longer engage in harness racing in any form. Following oral argument on November 9, 2010, the court entered an order on January 26, 2011, accompanied by a written opinion dated January 21, granting respondent's motion and terminating petitioner's benefits. This appeal ensued.
Petitioner testified regarding the accident, his injuries, and his treatment. He explained he slipped on "what looked like transmission fluid" and fell on a concrete floor while working as an auto mechanic for respondent in February 2004. He promptly reported the accident and his complaints of injury to his neck and lower back. X-rays were taken of his lower back and two MRIs were performed, one about a month after the accident and another about two years later. Petitioner testified about his medical treatment, which included cortisone and epidural injections in his lower back, physical therapy, pain medication, facet joint injections, a discogram, radioplasty, and disc reduction surgery.
Following the treatment, petitioner was still experiencing lower back pain that radiated into his legs, headaches, and pain in his neck, arms and shoulders that caused his neck to "lock up." According to petitioner, his lower back was his greatest complaint and stopped him from working because he could not bend over, run or lift. His neck also stopped him "dead in [his] tracks" because it "locks up," preventing him from "do[ing] anything for a couple of hours."
Petitioner also described numerous physical complaints regarding activities in which he could no longer participate in due to his injuries. He could not wrestle, kick box, or play hockey with his adult sons. Nor could he go dirt biking, explaining that "[j]ust trying to get crazy on the motorcycle would hurt. Anything other than idling I'm in pain." According to petitioner, he could also no longer perform household chores such as mowing the lawn, taking out the garbage, leaning over the sink and washing dishes, or carrying laundry up and down the stairs. He also testified it was a challenge to dress himself and put on his shoes.
In response to the question of whether he had difficulty sitting in or driving a car, petitioner testified that he "used to trailer horses up and down the highway for six hours." However, he currently could not drive a car for more than an hour at a time. Petitioner responded that he was not able to trailer horses now and had to have his brother and wife do it.
On cross-examination, petitioner explained that he had a hobby of
raising horses for harness racing and that he and his family moved to
a farm property in Maryland shortly after the accident because they
could not afford to keep their horses in New Jersey. Petitioner
specifically and unequivocally testified
he was unable to ride horses, train horses, trailer horses,*fn1
or care for them as a result of the accident. When asked
about his current participation in riding and training the horses,
petitioner stated, "I can't ride them, not a shot," "I can't [trailer
horses] any more," "[I] don't do it any more," and "[a]ll I am is a
trainer on paper . . . I participate by brain only . . . I
micromanage." Petitioner claimed he had not made any money in ten
years from this hobby and was now selling the horses due to his
Petitioner concluded his testimony by explaining:
I only come [back to New Jersey] for special occasions like court. I don't get to play any more. I don't get to travel. I don't get to do what I used to do. I used to be out every weekend fishing with my kids. I used to be out every weekend riding dirt bikes or horseback riding or driving horses or trailing horses or training horses. I used to do it all. I used to be Superman. Now I'm Mighty Mouse.
This newly-revealed evidence regarding petitioner's involvement with horses and in harness racing prompted a further investigation by respondent. By letter of January 25, 2010, respondent served upon petitioner documentation obtained by Melissa Popp, a claims adjuster at New Jersey Manufacturers Insurance Company (NJM), from the United States Trotting Association (USTA) website indicating that petitioner was the trainer of various race horses and had been the driver of those race horses in many competitive races in the years following his injury. By letter to the judge of the same date, respondent requested permission to conduct additional cross-examination of petitioner regarding these documents.
Trial continued on February 9, 2010 with testimony from Dr. Arthur Becan, petitioner's orthopedic surgeon. He examined petitioner on January 8, 2009, and stated petitioner's testimony was consistent with the pain he described during this examination. Dr. Becan recited a detailed history of petitioner's prior treatment. In his opinion, all of petitioner's injuries were directly related to the February 2004 accident. Dr. Becan opined that his impairment valuations of petitioner's disability included a 50% partial total for the cervical spine due to the bulging of discs and the presence of a posterior facet joint syndrome, a 25% partial total for the dorsal spine, and a 40% partial total for the lumbar spine due to an annular tear and the facet joint syndrome.
Having received the USTA records, petitioner's counsel inquired of Dr. Becan whether evidence that petitioner had been driving harness race horses would change his opinion of petitioner's disability. The orthopedist responded that it would not unless petitioner suffered an injury as a result this activity, although he did concede that engaging in harness racing as a driver can potentially cause existing problems in the neck and back to get worse. Dr. Becan also acknowledged that petitioner never mentioned his harness racing hobby to him.
On March 25, 2010, respondent served upon petitioner a surveillance CD of petitioner containing the documentary and video contents of an investigation by Kevin Crouthamel. The letter asked again whether petitioner would be available for additional cross-examination. By letter of April 9, petitioner's counsel advised the court he had asked his client whether he would testify further and, if so, he would produce him at the next scheduled trial date.
On May 4, respondent's orthopedic surgeon, Dr. Albert Thrower, testified that he examined petitioner in November 2006 and March 2009. On both occasions, Dr. Thrower did not find petitioner suffered any injury to his cervical or dorsal spine as a result of the workplace accident. However, during his 2006 examination of petitioner, Dr. Thrower observed permanent injury to petitioner's lumbar spine from the accident resulting in a disability of 4% of partial total, which he increased to 5% following his examination in 2009.
Dr. Thrower testified that it would have been important to his diagnosis to know if petitioner was engaged in an activity like harness racing while complaining of his symptoms. He explained:
[Harness racing] is a physical activity which would put a significant amount of strain on someone's upper back as well as lower back. Somebody who is able to do that if indeed  the petitioner did perform  those activities, would be in relatively good physical and functional shape, and it would be in contradistinction to the history and [petitioner's] complaints that he gave me.
Dr. Thrower testified it was no longer his opinion that petitioner suffered from a 5% of partial total disability, and, during his testimony, he decreased it to 3% of partial total. He explained that petitioner's complaints about the activities in which he claimed he was no longer able to participate in "would not jive at all" with someone who was able to do harness racing. The orthopedist elaborated:
[C]learly you have to be able to sit in the [what] I call a buggy . . . pulled behind the horse. You have to be able to tolerate the acceleration or deceleration forces that are part of that process. All the bumping up and down certainly goes into riding the buggy. You have to be able to sustain the forces of horse pulling with your arms and you have to be able to support yourself in the upper and lower body in the buggy. You have to be able to climb in and out of the buggy, probably some lifting involved with, you know, getting in the buggy . . . I don't know how much horse care of actually managing the horse during the process [of] getting them ready, making them wait until the race starts.
So it looks to me [like] a fairly physical activity, and doesn't seem like it would jive with those, a person couldn't do the things that Dr. Becan described.
At the conclusion of the expert testimony, respondent sought to admit into evidence the USTA raceline summaries and surveillance report that had previously been served on petitioner. Petitioner's counsel objected, arguing a proper foundation authenticating the evidence had not been laid and the evidence was presented untimely. The court permitted respondent to call Crouthamel and Popp for testimony to authenticate their respective documentary evidence and to permit petitioner to cross-examine each of them.
Crouthamel and Popp testified on July 27, 2010 regarding their inquiries into petitioner's horse racing activities. Crouthamel, a private investigator employed by Atlantic Security International Investigation who conducted surveillance on claimants with respect to workers' compensation and insurance claims, explained he began taking video surveillance of petitioner on October 11, 2009 at his home in Maryland. Only those portions of the surveillance report that Crouthamel prepared personally -- the daily activity reports and photographs -- were entered into evidence.
During his surveillance, Crouthamel observed a man matching petitioner's description engage in harness racing around the property on October 13 and November 20, 2009, as well as do carpentry, which included hammering, bending over, and picking up lumber. He stated he was about 500 to 600 feet from the man during the surveillance. On cross-examination, petitioner's counsel elicited testimony from Crouthamel that he did not know that petitioner had a twin brother. Crouthamel conceded he did not know whether the man he was observing on petitioner's farm was petitioner or his twin brother.
Popp testified she had a personal background in horses and horse racing because she was a horse owner, and a professional background in horse racing as the claims handler at NJM for the insurance policies of the New Jersey Horse Racing Compensation Board and was responsible for the claims of horse drivers, riders, and back staff of Monmouth Park, Freehold Raceway and the Meadowlands. Popp testified of her knowledge of a website, www.ustrotting.com, which provides information regarding horses, trainers, and drivers of horses, and was commonly used in the industry. She explained the process she followed to locate information on petitioner; by looking up his name and obtaining his USTA identification number, she was able to access and download multiple listings of horses, individually owned horses, persons who breed horses and persons who train horses. She was also able to access horse driving records, including the specific date, race, track, and other detailed information regarding when a person has driven or trained a horse in a race.
From this website, Popp obtained and downloaded information that petitioner had either raced or trained horses from 2005 to 2009 in several states and received prize money. Specifically, she explained and referenced the raceline summaries provided by the website, which demonstrated: (l) in 2005, petitioner had driven a horse in at least one race (purse start),*fn2 winning $87, and as a trainer had 137 starts with winnings; (2) in 2006, as a trainer he had 131 starts with winnings; (3) in 2007, he was a driver in one start, winning $77, and as a trainer he had 92 starts with winnings; (4) in 2008, as a trainer he had 13 starts with winnings; and (5) in 2009, as a trainer he had 12 starts with winnings. The printouts also reflected that petitioner was the driver in five qualifying starts in 2005, seven qualifying starts in 2006, fourteen qualifying starts each in 2007 and 2008, and eleven qualifying starts in 2009.
On cross-examination, Popp explained that, in the racing industry, the driver of the horse "sits in the sulky which is the little cart behind the horse." In contrast, a trainer typically trains a horse to "go through the paces, to learn the paces. A trainer a lot of times will also go through the daily process of having a horse in the barn, feeding it, grooming it, things of that nature, trailing it." She further explained, based on her personal experience in the industry, that on the day of a race a trainer brings the horses to the track [and] . . . get[s] the horses ready. A lot of times from my experience . . . the trainers will actually run the horse in a qualifier. They run qualifiers in the morning before the actual race to make sure that the horses can be eligible to run in the race. . . . they don't want to pay a driver to race in a qualifier so they'll race their own horses in the qualifier.
At the conclusion of Popp's testimony, petitioner introduced into evidence two photographs of himself and his brother for the sole purpose of demonstrating he had a twin brother. The judge reserved his decision on respondent's request to admit the reports from the USTA website and requested the parties submit briefs on the issue.
On September 7, 2010, Judge Corman ruled on the motion and admitted the printouts from ustrotting.com into evidence. He explained that although workers' compensation matters are not bound by the New Jersey Rules of Evidence, the rules are still relevant in that his determination must still be based on competent evidence, citing Reinhart v. Dupont De Nemours, 147 N.J. 156, 163 (1996). Nevertheless, he used the rules of evidence as guidance to determine whether the evidence was competent, stating, the real question was whether the printouts were admissible under the Market Reports Commercial Publications exception, N.J.R.E. 803(c)(17), which allows the admission of published compilations generally relied on by the public as exceptions to the hearsay rule. See State v. Carrano, 27 N.J. Super. 382, 388-89 (App. Div. 1953).
Based on the statute for the New Jersey Racing Commission's utilizing the USTA rules and regulations, the judge found the USTA to be a recognized association in the industry. He also found Popp to be a credible and "outstanding" witness with extensive knowledge of the workings of the horse racing industry and the USTA website, further establishing the website is generally relied on by persons engaged in the business of harness racing.
By letter of September 10, 2010, petitioner's counsel informed the court that his client rested. Based on the discrepancies between petitioner's own testimony and that of Popp and Crouthamel, respondent then moved for the dismissal of petitioner's claim petition pursuant to N.J.S.A. 34:15-57.4(c)(1), which provides: If a person purposely or knowingly makes, when making a claim for benefits pursuant to [N.J.S.A.] 34:15-1 et seq., a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the [D]ivision may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.
At oral argument on November 9, 2010, respondent's counsel pointed to the inconsistencies between petitioner's testimony in which he stated he could no longer ride or train horses, with the surveillance and USTA printouts. Respondent pointed out, for example, that the USTA driver raceline summary reflected that petitioner had eleven qualifying starts in 2009 in which he was also the trainer, two of which occurred on September 17, 2009, one week prior to his testimony at trial. Respondent further noted that petitioner never testified in response to the surveillance that it was his twin brother, not him, who was observed by Crouthamel. In opposition, petitioner's counsel argued that petitioner may have trained the horses without actually touching them or riding them, and challenged the veracity of the website's information.
In a written decision dated January 21, 2011, Judge Corman granted respondent's motion and dismissed petitioner's claim with prejudice. The judge provided a detailed recitation of the lay and expert testimony, a reiteration of the basis for his decision to admit the USTA website printouts, and a summary of the documentary evidence. He further noted that although petitioner was thereafter "given the opportunity to provide evidence or testimony to dispute the validity of the information contained in the printouts," he chose not to produce any further witnesses or evidence and the record was closed. Judge Corman made the following finding:
Based on the fact that the printouts were maintained in an online database by an organization statutorily recognized for its role in regulating harness racing, the fact that the database is relied on by insurance adjusters that handle claims involving harness race drivers and trainers, as well as the failure of Petitioner to offer any evidence or testimony to dispute the veracity of the printouts, I find that the printouts accurately recount the races in which the Petitioner engaged in harness racing as a driver.
He then referenced the specific statements made by petitioner on cross-examination that he could no longer "trailer" horses, he participates by "brain only" in horse activities, and other testimony that he engages in no physical activity with respect to harness racing. The judge further noted petitioner's "unambiguous claim that he no longer drives horses" made "just one week after he was the driver of 'Finest Firewater' in a qualifying race in Delaware[,]" and concluded that "there [was] no charitable explanation that [could] characterize these statements made by the Petitioner under oath as anything other than false." Judge Corman found petitioner lacked credibility, noting, in part, he regularly engaged in harness racing although he stated he could do no more than idle on a motorcycle.
Judge Corman thus concluded that "the statements made by the Petitioner in his testimony that he no longer drives horses [were] purposely and knowingly false." The judge also found it was "clear" from the context of petitioner's remarks that "his false statements were made for the purpose of obtaining benefits[,]" explaining:
The obvious reason the Petitioner recounted an inventory of recreational pursuits in which he can no longer engage is to portray himself to the Court as a poor soul bereft of any of life's enjoyments due to his workplace accident. Since regular participation in harness racing as a driver is radically inconsistent with such a narrative, it is apparent that in order to enhance his prospective award of benefits, the Petitioner chose not to mention it to either examining physician and falsely testified that he does not drive horses anymore. Based on the reaction of Petitioner's counsel when he was first confronted in court with the printouts, it is also obvious that the Petitioner concealed his harness racing from his own attorney.
In addition, the judge found the testimony of both medical experts "point[ed] to the materiality of the Petitioner's false statements." Petitioner failed to disclose his continued harness race driving during any of the medical examinations, and both experts indicated that they would have considered that activity in assessing petitioner's complaints and disability.
The judge concluded,
As to the seriousness of the Petitioner's false testimony, I find that claiming under oath that he does not drive horses anymore, just one week after driving a horse in a harness race, is so flagrantly galling as to constitute a serious violation per se for purposes of N.J.S.A. 34:15-57.4(c)(1). Petitioner's egregious conduct mocks the authority of the Court and is corrosive to the integrity of the workers['] compensation system. The Petitioner's false testimony in this matter is precisely the type of misconduct the Legislature sought to deter when it enacted N.J.S.A. 34:15-57.4(c)(1).
The court therefore dismissed petitioner's claim petition with prejudice, ordered the termination of benefits and forfeiture of rights to compensation with respect to the claim, and referred the matter to the Director and Chief Judge of the Division of Workers' Compensation for determination of whether law enforcement agencies should be notified.*fn3 The decision was memorialized in an order dated January 26, 2011. This appeal ensued.
On appeal, petitioner argues that the judge of compensation committed a reversible error of law when he allowed Crouthamel and Popp, surprise witnesses who were not identified in the pre-trial memorandum, to testify, and when he admitted the surveillance report and the USTA website printouts. At oral argument, petitioner expanded his argument to include the alternate claim that the judge exceeded the scope of the trial, which was limited to the level of permanent disability attributable to petitioner's cervical spine. Based on our review of the record and applicable law, we are not persuaded by petitioner's arguments and affirm substantially for the reasons articulated by Judge Corman in his oral and written decisions. We add the following comments.
The New Jersey Supreme Court reiterated the standard of appellate review of workers' compensation proceedings as follows:
[An appellate court] 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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor. [Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted).]
We do not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" Sager, supra, 182 N.J. at 164 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Rather, deference is to be afforded to "the factual findings and legal determinations made by 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," Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (internal citations and quotation marks omitted). Moreover, we are "obliged to give due weight to the expertise of the compensation court judge and his [or her] evaluation of the credibility of the witnesses." Woolf v. Consol. NDE, Inc., 350 N.J. Super. 590, 597 (App. Div. 2001) (citing Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996)).
Petitioner first argues the judge made several erroneous evidentiary rulings, and but for these errors, his claim would not have been dismissed. We disagree. As conceded by petitioner, workers' compensation hearings are "not bound by the rules of evidence." N.J.S.A. 34:15-56; N.J.R.E. 101(a)(3). "The purpose of not requiring strict compliance . . . is to simplify the nature of proofs that can be offered in workers' compensation proceedings." Lindquist, supra, 175 N.J. at 260 (internal citations and quotation marks omitted).
Nevertheless, "a judge of compensation's determination must still be based on competent evidence." Ibid. (internal citations and quotation marks omitted). The central issue is "not whether evidence was admitted in violation of the Rules of Evidence, but whether there is substantial credible evidence in the record to support the judgment when the proofs are considered as a whole." Ibid. (internal citations and quotation marks omitted). Therefore, the rules of evidence "are still relevant in determining whether evidence is competent." Reinhart, supra, 147 N.J. at 164.
Petitioner claims that evidence of his horse riding and training in Maryland is unrelated to his workers' compensation claim in New Jersey, and was therefore improperly introduced at the hearing. We disagree. "Relevant evidence is broadly defined," ibid., and includes any "evidence having a tendency in reason to prove or disprove" a fact in issue. N.J.R.E. 401. As noted by Judge Corman, evidence of petitioner's harness racing activities while pursuing a workers' compensation claim clearly had probative value with respect to the evaluations of the medical experts and their assessment of petitioner's work-related injuries and disability.
Citing Rule 4:17-7, which requires a party to amend interrogatories upon receiving information that renders previous answers incorrect or inaccurate, petitioner argues the judge erred in allowing Popp and Crouthamel, "surprise witnesses," to testify regarding documentary evidence and surveillance obtained after the start of trial. However, unlike civil proceedings in the Law Division, Superior Court, interrogatories are not permitted as a matter of course in workers' compensation cases. See N.J.A.C. 12:235-3.8(g) (permitting interrogatories in specific instances and "in other cases, upon motion, for good cause shown"). Petitioner presents no evidence that interrogatories were, in fact, served on respondent in this case.
Substantial deference is given to a trial judge's decisions regarding admissibility of evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. l999), certif. denied, 163 N.J. 79 (2000); State v. Morton, 155 N.J. 383, 453 (l998). We review a trial judge's evidentiary determinations under an abuse of discretion standard, provided the judge's rulings are not inconsistent with applicable law. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). See also Brenman v. Demello, 191 N.J. 18, 31 (2007)("Because the determination made by the trial court concerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard."); State v. Carter, 9l N.J. 86, 106 (l982) ("On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted."). An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj, supra, 194 N.J. at 20 (citation and internal quotation marks omitted). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citation and internal quotation marks omitted) (alteration in original).
The judge's decision to permit Crouthamel and Popp to testify regarding their inquiries into petitioner's horse racing activities was a proper exercise of his discretion. Moreover, it was handled in a way that was not prejudicial to petitioner. Although surveillance tapes prepared after the start of trial should generally be excluded from evidence, an exception arises when the employer could not have been aware of the circumstances necessitating the surveillance before the start of trial. Gross v. Borough of Neptune City, 378 N.J. Super. 155, 158 (App. Div. 2005). It is undisputed petitioner did not disclose these activities during his medical evaluations and treatment and, as the judge observed, it appeared petitioner concealed his harness racing from his own attorney. It was not until petitioner testified on September 24, 2009 that he disclosed his post-claim petition move to a horse farm in Maryland and his harness racing hobby, and unequivocally stated he could no longer train or drive horses, prompting respondent's inquiry.
Respondent promptly proceeded with the surveillance by a workers' compensation investigator and the internet research by Popp, an insurance adjustor with extensive familiarity with the horse racing industry. In January 2010, prior to the medical testimony, respondent provided petitioner with the USTA website documents obtained by Popp. In March respondent sent petitioner the surveillance tape and report. Petitioner had ample time to review this evidence and prepare for cross-examination of Crouthamel and Popp in July. Therefore, petitioner's reliance on cases imposing sanctions where there is an intent to mislead or surprise the unknowing party and when the unknowing party is prejudiced by the testimony is misplaced in view of the totality of the circumstances here.
The judge also required respondent to provide foundational testimony and authentication for the documentary evidence before it could be admitted. Both witnesses testified from personal knowledge and observations and the judge made detailed findings as to the bases for the admission of the documents. In fact, the judge permitted petitioner's counsel to conduct a voir dire respecting Crouthamel's report and only those portions of the report actually prepared by Crouthamel were admitted into evidence. Both witnesses were subject to extensive cross-examination.
Petitioner brought to the court's attention that he had a twin brother by admitting photographs of him and his brother into evidence. Crouthamel candidly admitted that he was not certain whether the person he observed at the Maryland property was petitioner or his twin. However, perhaps most critical to an assessment of petitioner's credibility on the issue of his continued participation in harness racing following his accident, despite the judge permitting, and even encouraging petitioner to "provide any evidence . . . to rebut this claim[,]" petitioner declined to take the stand or provide any additional testimony or evidence. See Maul v. Kirkman, 270 N.J. Super. 596, 610 (App. Div. 1994) (holding a judge may draw an adverse inference when a party, who is available, fails to testify and deny the evidence against him or her).
We defer to the credibility assessments and fact-finding, explained in detail by Judge Corman. His evidentiary rulings, conclusion that petitioner purposely and knowingly made false or misleading statements for the purpose of obtaining benefits, and final order terminating petitioner's benefits and dismissing his claim petition were amply supported by both the sufficient credible evidence in the record and legal authority.
Petitioner alternatively argues that the scope of the trial was limited to a determination of permanent disability of the cervical spine. Petitioner thus argues that if the judge did not credit his testimony regarding his injuries based on the harness racing evidence presented by respondent, the judge should have found there was no disability to his cervical spine. Petitioner urges that even if he had a few starts in the years following his accident, he should only lose benefits related to a disability of his cervical spine, not all of his benefits under N.J.S.A. 34:15-57.4(c)(l).
We are satisfied the judge's decision was properly made within the scope of the trial. Contrary to petitioner's assertion, there was no such limitation in the pre-trial memorandum or the stipulations at the outset of the trial. According to the pre-trial memorandum, the issue at trial was the "Nature and Extent of Temporary and Permanent Injury" and the medical information referenced both cervical and lumbar injuries. Moreover, there was extensive lay and medical testimony both about petitioner's neck and lower back.
During the course of trial, several months after the close of respondent's proofs and confirmation that petitioner rested without availing himself of the presentation of rebutting testimony or evidence, respondent requested the petition be dismissed pursuant to N.J.S.A. 34:15-57.4(c)(l). Respondent opposed the request and the court heard oral argument. Respondent presents no argument or legal authority to dispute that Judge Corman properly interpreted and applied this statute to the present matter. The record is replete with evidence to support the judge's findings of false or misleading statements by petitioner and the elements of scienter and materiality, as well as his conclusion that petitioner's conduct was "egregious" and merited the "termination of benefits and forfeiture of rights to compensation with respect to this claim."