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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...