Natalie Bellino v. Verizon Wireless , 435 N.J. Super. 85 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1132-12T4
NATALIE BELLINO,
APPROVED FOR PUBLICATION
Petitioner-Respondent,
March 19, 2014
v.
APPELLATE DIVISION
VERIZON WIRELESS,
Respondent-Appellant.
______________________________________________________
Argued September 10, 2013 – Decided March 19, 2014
Before Judges Messano, Sabatino, and Hayden.
On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2010-5720.
Ian G. Zolty argued the cause for appellant
(Capehart & Scatchard, P.A., attorneys; Mr.
Zolty, on the brief).
D. Gayle Loftis argued the cause for
respondent.
Pablo N. Blanco argued the cause for amicus
curiae New Jersey Advisory Council on Safety
and Health (The Blanco Law Firm, LLC,
attorneys; Mr. Blanco, on the brief).
The opinion of the Court was delivered by
HAYDEN, J.A.D.
This case concerns an injured worker's eligibility for
temporary disability benefits and medical treatment under the
Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act)
and the essential elements required for the Act's anti-fraud
provision, N.J.S.A. 34:15-57.4, to negate a claimant's
eligibility for benefits. In particular, we consider the state
of mind that a respondent must prove to disqualify a claimant
who makes misstatements about his or her medical history when
applying for benefits.
Respondent Verizon Wireless appeals from the October 15,
2012 order of the workers' compensation court, which granted
temporary disability and medical benefits to petitioner Natalie
Bellino. Respondent argues that the workers' compensation court
erred in finding the testimony of petitioner and her physicians
credible; in finding petitioner was entitled to curative medical
treatment and temporary disability benefits due to a work-
related injury; and in permitting her to receive workers'
compensation benefits despite petitioner's statements and
omissions that respondent alleges amount to fraud in violation
of N.J.S.A. 34:15-57.4. Having considered respondent's
arguments in light of the record and the applicable legal
principles, we affirm.
The record reflects that in February 2010, petitioner
worked for respondent as a customer service and sales
representative at respondent's store in Secaucus. On February
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23, 2010, petitioner tripped over some boxes, fell forward over
the cartons onto the ground, and experienced immediate pain in
her right hand and arm, right knee, left ankle, and lower back.
After her co-workers helped her up, petitioner called her
father, who took her to an urgent care doctor's office.
Respondent instructed her a few days later to go to its
authorized medical provider, Concentra Medical Centers.
On March 2, 2010, petitioner began receiving medical care
from several doctors at Concentra, including Dr. Armondo
Martinez, an orthopedic surgeon. In April 2010, Dr. Martinez,
after observing swelling of petitioner's right hand and fingers,
referred petitioner to another Concerta physician, Dr. Jonathan
Lester, a specialist in physical rehabilitative medicine and
pain management.
During the course of his authorized treatment of petitioner
from April 28, 2010 to July 20, 2011, Dr. Lester diagnosed her
back complaints as a lumbar strain and her right hand and arm
complaints as Complex Regional Pain Syndrome (CRPS), also known
as Reflex Sympathetic Dystrophy.1 He found that she had
significant edema of the right hand, increased temperature in
the right hand compared to the left, significant tenderness or
1
The week before his testimony, Dr. Lester changed his diagnosis
to chronic pain disorder of the right upper extremity and
testified that he was unable to state that it was work related.
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pain from light palpitation or squeezing, and "exquisite" pain
from light touch of the right hand. Dr. Lester recommended
several treatments, which respondent's insurer would not
approve, including a series of nerve blocks, which he opined
were often effective for treating CRPS.
Respondent referred petitioner to Dr. Gallick2 in July 2010
for an evaluation. Dr. Gallick determined, after examining
petitioner, that she could return to work and no longer needed
any treatment. Respondent ceased providing medical treatment
and temporary benefits, and petitioner filed a motion for their
resumption.
On October 15, 2010, the judge of compensation ordered
respondent to resume providing petitioner with medical treatment
until the receipt of the reports of respondent's medical
evaluators. Respondent scheduled evaluations with Dr. Eric L.
Fremed, a neurologist, on November 1, 2010, and with Dr. David
J. Gallina, a psychiatrist, on November 30, 2010. Respondent
also referred petitioner for treatment to Dr. Nilaya Bhawsar, a
neurologist, who diagnosed her with CRPS, prescribed medication,
and recommended that she be treated "aggressively" with nerve
blocks. Respondent did not follow Dr. Bhawsar's recommendation
because its two medical evaluators recommended that petitioner
2
Dr. Gallick's first name does not appear in the record.
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needed no treatment, and respondent again stopped providing
treatment for petitioner.
Petitioner filed another motion for temporary disability
benefits and medical treatment on January 10, 2011. The judge
of compensation conducted hearings on the motion on nine non-
consecutive days between March 2011 and May 2012. Petitioner
testified at the hearings. Dr. Gregory D. Anselmi, her treating
neurologist, and Dr. Angela Adams, her neurological expert, also
testified on petitioner's behalf. The report of Dr. Bhawsar,
petitioner's authorized treating neurologist, was admitted in
lieu of his testimony. For respondent, Mariano Ortega,
petitioner's supervisor,3 Dr. Lester, Dr. Fremed, and Dr. Gallina
testified.
Dr. Anselmi testified that he first treated petitioner in
2009 for low back, neck pain, headaches, and vision problems.
He next saw petitioner on September 22, 2010, after respondent
had stopped providing medical treatment. Dr. Anselmi, who
reported that he has treated over one hundred CRPS patients,
explained that CRPS was caused by a traumatic injury, sometimes
a quite mild one. This trauma sent an impulse to the brain
which, for unknown reasons, the brain failed to modulate as it
3
Ortega testified that petitioner had been complaining about her
back hurting in the weeks before she fell.
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normally would, resulting in continued pain and swelling of the
affected body parts. During the course of the doctor's
treatment, he observed that petitioner's pain grew worse, and
she began to develop a contracture of the right hand, which he
noted could not be voluntarily developed. Dr. Anselmi opined
that petitioner needed medical treatment, was unable to work,
and had a poor prognosis.
Dr. Adams, who examined petitioner on August 4, 2010, and
again on November 9, 2011, testified that at the first
examination she found guarding of petitioner's right hand and
arm, measurable temperature difference between the right and
left hands, swelling of the right hand, and paler skin tone of
the right hand than the left. She later found that petitioner's
symptoms were worse on the second visit, noting a higher
temperature of the right hand, increased guarding of the right
shoulder and arm, and changes in the fingernails not present at
the first visit.
Dr. Adams' diagnosis was CRPS of the right arm, lumbosacral
radiculopathy, and adjustment disorder with mixed anxiety and
depressed mood, all causally related to the accident. She noted
that petitioner's current symptoms were different from the pain
from her hand and arm problems prior to the work-related
accident. In the doctor's opinion, petitioner's prior mental
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health conditions and back issues were exacerbated by the
accident. Dr. Adams recommended a course of treatment including
evaluation and treatment by an expert in CRPS, a neurological
evaluation and treatment including pain management and physical
therapy, and a psychiatric evaluation and treatment.
Dr. Fremed testified for respondent that petitioner's
examination on November 1, 2010, was completely normal,
petitioner had a full range of motion with no spasms or
restrictions, and she had no asymmetry of the temperature or
skin tone of the hands. He found a mild swelling of the right
wrist but opined that it could have occurred by petitioner
consistently holding it in a "dependent position" below the
level of her heart. Dr. Fremed opined that petitioner did not
meet the clinical standard for CRPS because a psychiatric cause
of her symptoms had not been ruled out. In any event, in his
opinion, her symptoms were not related to the accident, and she
did not need any neurological treatment.
Dr. Gallina, who is board certified in both psychiatry and
neurology, testified that he examined petitioner on November 30,
2010, and found no evidence of a neuropsychiatric illness. He
did not believe petitioner needed psychiatric treatment due to
the work accident.
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At the close of the hearings, the judge of compensation
issued a comprehensive opinion, thoroughly reviewing the
testimony and making detailed findings of fact and conclusions
of law. First, he found that petitioner's testimony was
"credible, honest, straightforward and not exaggerated." He
noted that he observed during her testimony that her right hand
appeared "a lot more swollen" than the left.
The judge of compensation also determined that Dr.
Anselmi's testimony was credible and "most persuasive." He gave
substantial weight to Dr. Anselmi's opinion because he was
petitioner's treating doctor both before and after the accident.
He also found Dr. Adams credible and persuasive. In contrast,
the judge found the opinions of Dr. Fremed and Dr. Lester
neither credible nor persuasive. The judge highlighted that Dr.
Fremed testified that petitioner did not meet the clinical
standards for CRPS because a psychiatric etiology for her
symptoms had not been ruled out, but Dr. Gallina testified that
petitioner did not suffer from a psychiatric illness or need
psychiatric treatment. The judge concluded that petitioner had
sustained her burden of proving that she was in need of medical
treatment and unable to work and ordered respondent to provide
the treatment recommended by Dr. Adams.
8 A-1132-12T4
The judge of compensation also considered respondent's
argument that petitioner's claim should be dismissed under the
anti-fraud provision of the Act, N.J.S.A. 34:15-57.4, because
she had allegedly provided fraudulent information to her
examining and treating physicians.
Respondent maintained that several of petitioner's
statements to both her treating and examining physicians were
false, incomplete, or misleading, including that petitioner did
not disclose every medication she was taking to each doctor she
saw; did not report all prior treatment of her back and hand to
each doctor; failed to reveal that she had a substance abuse
problem in years prior and took Suboxone to prevent relapse; and
failed to fully disclose her prior psychiatric treatment and
issues.
Petitioner denied that the record contained evidence that
she purposely or knowingly provided false or misleading
information. In her testimony, petitioner stated that she tried
to answer all the doctors' questions truthfully, but pointed out
that she had seen many doctors several times and was not always
certain of times and dates of previous treatment. She also
disagreed with the characterization of her statements contained
in several doctors' reports.
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The judge rejected respondent's argument based upon the
credible testimony of petitioner and her medical witnesses and
the fact that "the medical records introduced into evidence
reflected petitioner's pre-existing conditions and prior use of
medications and were reviewed by treating and examining
physicians of both parties[.]" He concluded that respondent had
not proven by a preponderance of evidence that petitioner
"purposely or knowingly made false or misleading statements for
purposes of obtaining benefits." This appeal ensued.
When reviewing a judge of compensation's decision, we
consider "'whether the findings made could reasonably have been
reached on sufficient credible evidence presented 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)). A
judge of compensation's factual findings are entitled to
substantial deference. Ramos v. M & F Fashions, Inc., 154 N.J.
583, 594 (1998). "We may not substitute our own factfinding for
that of the [j]udge of [c]ompensation even if we were inclined
to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488
(App. Div. 2000). We must accord deference to the judge's
factual findings and legal determinations "unless they are
10 A-1132-12T4
'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) (quoting Perez v. Monmouth Cable
Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif.
denied, 140 N.J. 277 (1995)).
In contending that the judge of compensation erred in
reaching his decision, respondent argues that the testimony of
petitioner and her experts was not credible, and the testimony
of respondent's witnesses was credible. However, we especially
defer to a judge of compensation's credibility findings as these
determinations are "often influenced by matters such as
observations of the character and demeanor of witnesses and
common human experience that are not transmitted by the record."
State v. Locurto, 157 N.J. 463, 474 (1999). Moreover, it is
well settled that "a 'judge of compensation is not bound by the
conclusional opinions of any one or more, or all of the medical
experts.'" Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511
(App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete
Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)).
The judge is considered to have "expertise with respect to
weighing the testimony of competing medical experts and
appraising the validity of [the petitioner's] compensation
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claim." Ramos, supra, 154 N.J. at 598. "That [the judge] gave
more weight to the opinion of one physician as opposed to the
other provides no reason to reverse th[e] judgment." Smith v.
John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App.
Div. 2000).
Here the judge of compensation found petitioner and her
witnesses credible, and, based upon their testimony, determined
that petitioner was unable to work and entitled to temporary
disability benefits and medical treatment. Applying, as we
must, a highly deferential standard of review, our examination
of the record leads us to conclude that all the factual
determinations made by the judge were amply supported by
substantial evidence in the record "and [were] not so wide off
the mark as to be manifestly mistaken." Tlumac v. High Bridge
Stone, 187 N.J. 567, 573 (2006). Accordingly, we will not
disturb the judge's findings that petitioner had demonstrated
she was entitled to receive medical treatment and temporary
disability benefits for a condition related to work.
Further, respondent contends that the judge of compensation
should have denied petitioner's claims and dismissed her
petition because she violated the Act's anti-fraud provision,
N.J.S.A. 34:15-57.4. We disagree.
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The anti-fraud provision establishes a fourth-degree crime
for making "a false or misleading statement, representation or
submission concerning any fact that is material to that claim
for the purpose of wrongfully obtaining the benefits[.]"
N.J.S.A. 34:15-57.4(a)(1). Throughout the provision, the terms
"purposely or knowingly" has the same meaning as provided for
those terms in Chapter 2 of the Criminal Code. N.J.S.A. 34:15-
57.4(d).
Respondent contends that the following part of the anti-
fraud provision is applicable to petitioner:
If a person purposely or knowingly makes,
when making a claim for benefits pursuant to
[the Act], 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
division 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.
[N.J.S.A. 34:15-57.4(c)(1).]
In defining general culpability standards, the Criminal
Code provides that "[a] person acts purposefully with respect to
the nature of his conduct or a result thereof if it is his
conscious object to engage in conduct of that nature or to cause
such a result." N.J.S.A. 2C:2-2(a)(1). Additionally, "[a]
person acts knowingly with respect to a result of his conduct if
13 A-1132-12T4
he is aware that it is practically certain that his conduct will
cause such a result." N.J.S.A. 2C:2-2(a)(2). Thus, the
fraudulent statement must be made with a conscious objective to
obtain benefits to which one knows he or she is not entitled or
with an awareness that the intentional falsehood will cause the
desired result of fraudulently obtaining benefits.
Respondent highlights alleged inconsistencies,
inaccuracies, and omissions found in the reports or medical
records of some of the numerous doctors that petitioner went to
for evaluation and treatment. Respondent places particular
emphasis on petitioner's certification that she had not filled a
certain prescription for Xanax when the pharmacy record showed
that she had filled a prescription for Xanax a year earlier.
Respondent also stresses that petitioner had burned the tips of
her three fingers of her right hand ten years earlier at work
and received workers' compensation benefits from respondent,
but, when being treated for her 2010 right hand and arm injury,
she initially denied having had a prior injury to her right
hand. According to respondent, conflicting and inaccurate
information in some of the doctors' reports proved that
petitioner had committed fraud to receive workers' compensation
benefits by intentionally making false and misleading statements
to obtain benefits for which she knew she did not qualify.
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Petitioner denies making false statements or omissions with
the intention of obtaining treatment or other benefits.
Further, petitioner argues that the records viewed as a whole
show that she accurately reported all her medication, prior
treatment, and psychiatric and drug abuse issues.
The Act "'is humane social legislation designed to place
the cost of work-connected injury on the employer who may
readily provide for it as an operating expense.'" Livingstone
v. Abraham & Straus, Inc., 111 N.J. 89, 94-95 (1988) (quoting
Hornyak v. The Great Atl. & Pac. Tea Co., 63 N.J. 99, 101
(1973)). The Act represents a bargain between employers and
employees because it places the cost of personal injuries
arising out of and in the course of employment on the employer,
regardless of the employer's negligence, but the employee
surrenders his right to pursue other remedies that could yield
larger recoveries. N.J.S.A. 34:15-7; Basil v. Wolf, 193 N.J.
38, 53-54 (2007); Millison v. E.I. du Pont de Nemours & Co., 101
N.J. 161, 174 (1985). Because it is socially beneficial
legislation, the Act must be interpreted liberally and
inclusively. Fitzgerald v. Tom Coddington Stables, 186 N.J. 21,
31 (2006); Sager v. O.A. Peterson Constr., Co., 182 N.J. 156,
169 (2004). The anti-fraud provision is intended to root out
fraudulent claims, not merely test an injured person's ability
15 A-1132-12T4
to remember every detail of a lengthy medical history or to
accurately determine what may be material for purposes of
receiving treatment or other benefits.
Consequently, in order to implement the remedial social
legislation of affording coverage to as many workers as
possible, all elements of the anti-fraud provision must be
proven by competent evidence for a motion to dismiss to prevail
on those grounds. It is not enough that the moving party show
the worker made an inaccurate or false statement or omitted
material facts. Rather, the moving party must show (1) the
injured worker acted purposefully or knowingly in giving or
withholding information with the intent that he or she receive
benefits; (2) the worker knew that the statement or omission was
material to obtaining the benefit; and (3) the statement or
omission was made for the purpose of falsely obtaining benefits
to which the worker was not entitled.
Even if a petitioner's statements satisfy these
requirements of the anti-fraud provision, denial is not
mandatory as the provision states that benefits "may" be denied.
N.J.S.A. 34:15-57.4(c)(1). Indeed, it has been generally
recognized that "not all lies and false statements made by an
employee in connection with a workers' compensation claim will
cause forfeiture of benefits." 2 Lex K. Larson, Larson's
16 A-1132-12T4
Workers' Compensation § 39.03 (Rev. ed. 2013). For instance,
"[w]here there is no causal connection between the lie and the
injury itself, the courts will generally look beyond the false
statement and award compensation."4 Ibid.
Here, the judge of compensation considered the entire
record, including petitioner's credible testimony, her
persuasive medical witnesses, and the records considered by all
the medical witnesses and concluded there was insufficient
evidence that petitioner violated the anti-fraud provision. As
stated above, the judge's credibility determinations are amply
supported by the record and are not manifestly mistaken. See
Tlumac, supra, 187 N.J. at 573. From our independent review of
the record, we perceive no error here. While some of the
alleged inaccuracies or misstatements respondent pointed out may
have been material, this alone does not meet the anti-fraud
provision's three-part requirement. As petitioner testified
credibly that she did not intentionally omit or misrepresent her
past medical history, respondent has not proven an essential
4
For instance, failure to report recreational use of drugs on a
medical history form, often due to embarrassment or concern for
criminality, is not generally material unless it is directly
related to the accident or resulting medical condition. See
Beck v. Newt Brown Contractors, LLC, 72 So. 3d 982 (La. Ct. App.
2011) (claimant granted benefits despite denial of recreational
drug use when accident not caused by drug use).
17 A-1132-12T4
element of the anti-fraud provision and thus respondent's motion
could not prevail.
Next, amicus New Jersey Advisory Council on Safety and
Health requests that we find that the burden of proving fraud
under the anti-fraud provision must be by clear and convincing
evidence as is generally required to prove common law fraud. 5
See Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super.
388, 395 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990).
As this issue was not raised below, and the judge of
compensation appears to have used the lesser standard of proof
and still determined that respondent did not prove fraud, we
decline to reach this issue on this record.
Finally, respondent's argument that the judge's order was
erroneous because it required respondent to pay temporary total
disability benefits until petitioner is medically cleared to
return to work or until further order of the court is without
sufficient merit to warrant extended discussion. R. 2:11-
3(e)(1)(E). Temporary disability benefits are payable from "the
day that the employee is first unable to continue at work by
5
Amicus concedes that the Court in Liberty Mutual Ins. Co. v.
Land, 186 N.J. 163, 174 (2006), when considering the standard
under a similar statute, the Insurance Fraud Prevention Act,
N.J.S.A. 17:33A-1 to -30, held that the standard of proof was by
a preponderance of evidence. Amicus argues that we should reach
a different decision here because of the remedial social
policies behind the Act.
18 A-1132-12T4
reason of the accident . . . up to the first working day that
the employee is able to resume work and continue permanently
thereat," N.J.S.A. 34:15-38, or until the employee "'is as far
restored as the permanent character of the injuries will permit,
whichever happens first.'" Cunningham v. Atlantic States Cast
Iron Pipe Co., 386 N.J. Super. 423, 427-28 (App. Div.) (quoting
Monaco v. Albert Maund, Inc., 17 N.J. Super. 425, 431 (App. Div.
1952)), certif. denied, 188 N.J. 492 (2006). We do not perceive
that the judge's order to pay temporary total disability
benefits until petitioner is medically cleared to return to
work, or until further order of the court, contravened this
basic principle. The judge's reasonable order for respondent to
seek permission of the court in stopping benefits if petitioner
was not medically cleared for work was not an abuse of
discretion, especially in light of respondent twice stopping
medical temporary benefits prematurely.
Affirmed.
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