CP# 2005-35155 Dubrel v. Maple Crest Auto Group
NEW JERSEY DEPARTMENT OF LABOR
DIVISION OF WORKERS COMPENSATION
NEW BRUNSWICK VICINAGE
|: Claim Petition|
|Petitioner,||: No. : 2005-35155|
|MAPLE CREST AUTO GROUP,||: Decision|
January 21, 2011
Hon. J. Randall Corman, Judge of Compensation
Stathis & Leonardis,
BY: Gregory Stathis, Esq.
Attorneys for the Petitioner
Law Offices of William S. Barrett, Esq.
BY: Mary McInerney, Esq.
Attorneys for the Respondent
In the matter of Louis DuBrel v. Maple Crest Auto Group, Claim Petition 2005-35155, the parties stipulated that the Petitioner met with a compensable work related injury on February 7, 2004. Neither wages nor temporary benefits were at issue. The Court adopts these stipulations.
Petitioner testified that he was working as an auto mechanic for the Respondent when he slipped on transmission fluid and fell onto a concrete floor. He was sent to Care Station for treatment where his back was X-rayed and he was given pain medication. He was treated by Dr. Bercik, who provided cortisone as well as epidural injections to his low back and prescribed a course of physical therapy. MRIs of the Petitioner’s cervical and lumbar spines were performed in June 2006. The Petitioner subsequently received pain management treatment from a number of physicians, including Drs. Yu, Worosilo and Freeman. This treatment included facet joint injections, more cortisone injections, medial branch rhizotomy and medial branch block procedures as well as a discogram and a disk reduction procedure. Petitioner testified his prescribed pain medications now included percocet, neurontin and a fentanyl patch.
As to his current complaints, the Petitioner testified he has low back pain that radiates into his legs. He also testified he has headaches and neck pain that radiates into his shoulders and arms and causes his neck to sometimes lock up, however, he complained that none of his doctors ever treated his neck pain. In describing the impact of his injury on his personal life, the Petitioner provided the Court with a detailed inventory of activities he once enjoyed but could no longer engage in; e.g., wrestling, boxing, kick boxing and playing hockey with his sons, fishing, running, horseback riding, skateboarding, rollerblading, as well as riding dirt bikes and motorcycles. He also testified that anything other than idling on a motorcycle would cause pain. See DuBrel transcript at 18-19 and 36. He testified he can no longer perform household chores such as mowing the lawn, washing dishes and carrying laundry up and down stairs and only rarely takes out the garbage and has difficulty driving a car for any length of time. He stated it is hard to get out of bed in the morning and get dressed and that his wife has to help him put on his shoes. The Petitioner also testified that the pain medications, particularly fentanyl and neurontin, left him as an emotional void that has put stress on the intimate aspects of his marriage.
At one point, Petitioner attempted to go back to work with the Respondent, however, he testified he only lasted a week because he could not do the lifting involved in the work. He then went to work for Pep Boys for eight months at what he described as a lighter duty job where he was able to change alternators and batteries. He testified that he is currently unable to get work as an auto mechanic because his pain medications render him unable to pass the drug tests required by such employers.
The Petitioner also testified that he has a hobby of raising standardbred horses in Maryland, where he now resides. He stated he has not made any money from this hobby in the past ten years and is now beginning to sell off horses due to financial considerations. The Petitioner testified that his wife and his brother take care of the horses for him under his direction. He stated that cannot ride the horses, clean their stalls or trailer them (i.e., lead them into a trailer and transport them over the road). He testified that he is listed as a “trainer” for the horses, but that he is a trainer in name only. When asked under cross examination about the extent of his participation in raising horses, Petitioner stated “I participate by brain only.” Id. at 28-31.
Petitioner’s medical expert, Dr. Arthur Becan was admitted without objection as an expert in orthopedic medicine. Dr. Becan examined Petitioner on January 8, 2009 and noted complaints generally consistent with his subsequent testimony, except that the Petitioner only complained of radiating pain into his right arm to Dr. Becan while he testified to radiating pain in both arms. The Petitioner’s complaints of restrictions in his daily life was similar to that provided in his testimony, including the following litany of recreational activities in which he can no longer engage: dirt bike riding, boxing, kick boxing, football, baseball and working on cars. In his physical examination Dr. Becan found muscle spasms in the cervical, thoracic and lumbar spines, and noted the sitting root sign and straight leg raising signs were positive on the right side.
During his testimony, Dr. Becan indicated he did not know of any significant side effects associated with neurontin or fentanyl. In particular he denied any effects on a patient’s awareness for a fentanyl patch and stated that because it is used as a patch it diffuses through the skin to the local area of the pain without going through the bloodstream and effecting the central nervous system. Becan transcript at 54-5.
Dr. Becan assessed permanent partial disability as follows: 50% partial total for bulging discs at C4-C5, C5-C6 and C6-C7 and posterior facet syndrome of the cervical spine; 25% partial total for strain and sprain of the dorsal spine and 40% partial total for an annular tear at L4-5 and facet joint syndrome of the lumbar spine.
Respondent’s medical expert, Dr. Albert Thrower, was admitted without objection as an expert in orthopedic surgery. Dr. Thrower examined the Petitioner on November 7, 2006 and on May 29, 2009. In his 2009 exam, Dr. Thrower noted only pain in the low back radiating into both legs, which would constitute an improvement over his 2006 exam, which also noted upper back pain between the shoulder blades as well as dorsal and cervical pain during motion. In addition, Petitioner indicated to Dr. Thrower in 2009 that pain into his legs had partially improved since his treatment with Dr. Freeman. In 2009, Dr. Thrower found no cervical or lumbar spasms, no upper back tenderness and normal cervical motion without pain. He also found a positive straight leg raising sign on both sides. In 2009, Dr. Thrower assessed 5% permanent partial total disability for aggravation of pre-existing lumbar degenerative disk disease and found no cervical spine disability related to the Petitioner’s injury of February 7, 2004.
Following the conclusion of expert testimony, Respondent’s counsel called as a lay witness Melissa Popp, an adjuster for the Respondent’s insurance carrier, for the purpose of authenticating copies of race line summaries she had downloaded from the website of the United States Trotting Association (www.ustrotting.com) from the years 2005 to 2009 purporting to show that the Petitioner was engaged in the sport of harness racing during that period of time. Ms. Popp testified that she had worked as an adjuster for New Jersey Manufacturer’s Insurance Company for sixteen years. She indicated she had been asked for assistance from her employer’s special investigations unit because of her background as a horse owner and as the adjuster handling the New Jersey Horse Racing Compensation Board policy since 2000 and responsible for all claims of horse drivers, riders and back staff at Monmouth Park, Freehold Raceway and the Meadowlands. She also provided general information about the harness racing of standardbreds in which a driver sits in a small two wheeled cart known as a sulky as opposed to thoroughbred racing in which a jockey rides on top of the horse.
In the course of her employment, Ms. Popp testified she became familiar with the United States Trotting Association (USTA) website in 2003 which included an online database called Pathway that listed performance information for horses, drivers and trainers. She indicated that the database could provide the specific date and track of each race as well when a specific person has driven or trained a horse in a specific race. Ms. Popp stated that she used the Pathway database to search for Louis DuBrel and printed out all records in which he had been listed as a driver or trainer in races that occurred from 2005 to 2009. Respondent’s counsel offered these printouts into evidence and Petitioner’s counsel objected on the grounds that the printouts were hearsay.
In subsequent argument over the admissibility of the printouts, Respondent’s counsel asserted that they qualify as commercial publications under N.J.R.E. 803(c)(17), which states that “[M]arket quotations, tabulations, lists, directories or other published compilations, generally used and relied upon by the public or by persons in particular occupations” are admissible. In particular, Respondent’s counsel relied on State v. Carrano, 27 NJ Super. 382 (App. Div. 1953) in which a newspaper devoted exclusively to horse racing information was ruled admissible since it contained a list relied upon by persons engaged in the occupation of gambling. While Petitioner’s counsel stipulated that the website accessed by Ms. Popp was in fact the website of the USTA and that the printouts reflected what she viewed on her computer screen, he disputed whether the information on that website or in the printouts could be regarded as accurate and was therefore inadmissible. In particular, he would not stipulate to the accuracy of the statement on the website that the USTA is organized “to regulate, promote and make the rules” of harness racing and also “licenses drivers and trainers.”
Petitioner’s counsel primarily relied upon State v. McGee, 131 NJ Super. 292 (App. Div. 1974) where it was held that the State did not present enough proof of the reliability of the data provided by the computer of the National Crime Information Center. In addition, Petitioner’s counsel cited NJ Division of Youth & Family Services v. L.A., 357 NJ Super. 155 (App. Div. 2003) and the unpublished case In re Tenure Hearing of Donahue, Dkt. No. A-1631-06T1 (App. Div. 2008) to claim that in administrative proceedings hearsay evidence must be corroborated. While counsel for the Petitioner presented a lucid, intelligent, and well thought out argument against the admissibility of the website printouts, the Court overruled his objection for the following reasons.
As to the purpose of the USTA and its stature in the realm of horse racing, the Court must take note of N.J.S.A. 5:5-30, which is one of the statutes that govern the New Jersey Racing Commission. The relevant portion of N.J.S.A. 5:5-30 states that “Every permit issued under this act shall contain a condition that…all harness races shall be subject to the reasonable rules and regulations from time to time prescribed by the United States Trotting Association.” Therefore, given the statutory recognition of the USTA’s role in harness racing, the Court must find that the USTA is in fact an organization that promotes and regulates harness racing and licenses drivers and trainers.
It is clear that the USTA’s Pathway database is a “published compilation” of listed performance information for horses, drivers and trainers which is published on an internet website. Whether it is “generally used and relied upon by the public or by persons in particular occupations” hinges on the testimony of the Respondent’s lay witness Melissa Popp.
It must be said that Ms. Popp proved to be an outstanding witness. She was not merely a functionary of an insurance carrier put on the stand to verify that the exhibit offered into evidence was in fact what she printed off of a particular internet website. Instead she impressed everyone in the courtroom with the breadth of her knowledge of the horse racing industry in general and harness racing in particular. It is clear from her testimony that the USTA’s Pathway database was “used and relied upon” by those in the occupation of insuring drivers and trainers engaged in harness racing. Thus it is clear that the printouts from thus website appear to meet the standards for admissibility set forth in N.J.R.E. 803(c)(17).
To support his objection, Petitioner’s counsel cited State v. McGee, a 1974 Appellate Division case where a report from the National Crime Information Center (NCIC) computer about a stolen gun was ruled inadmissible notwithstanding the fact that it appeared to qualify under this hearsay exception. The concerns cited by the McGee court were as follows: 1) that computer printout was, (“most importantly” in the Court’s judgment), not offered into evidence; 2) there was no testimony as to who programmed the NCIC computer or who fed information into the computer; and 3) whether the original account of a stolen gun subsequently entered into the computer was actually truthful. Id. at 297. In light of these concerns the McGee court concluded that “in a criminal case where a person’s life or liberty is at stake and guilt must be proved beyond a reasonable doubt, a court should be reluctant to broaden the scope of an exception to the hearsay rule unless the type of statement sought to be admitted carries with it strong and convincing indicia of trustworthiness.” Id. at 298.
With regard to all of these concerns, the instant case can be distinguished from McGee. Most obvious is the fact that this matter is not a criminal case but a civil administrative proceeding where no criminal penalties are at issue. In addition, unlike the NCIC report, the USTA website database printouts have been offered into evidence. With regard to concerns about who programmed the NCIC computer and who entered the data, it is important to note that this decision was rendered in 1974, long before personal computers, fax machines, cell phones, email and internet access became an integral part of everyday business conduct. With data being stored on desktop computers found in every modern office, it serves no function to require a representative of Microsoft to testify how the latest version of Windows was programmed before data from an office computer can be printed out and offered into evidence. Furthermore, four years after McGee, the Appellate Division apparently became more comfortable with the advance of technology in State v. Pace, 171 NJ Super 240 (App. Div. 1978) where a teletype was admitted as evidence of a stolen vehicle.
As to concerns in the McGee case as to whether the owner of the weapon truthfully reported it to be stolen, such concerns really do not exist in the present matter. Unlike a report of a stolen weapon, where it may be that only the owner and the alleged thief are the only two people who know whether the owner’s account is true, harness racing occurs in front of thousands of racetrack spectators and often before a television audience. If an incorrect account of who participated in a race as a driver is reported to the USTA and entered into their database, there are numerous people who would recognize the error and would have an interest in notifying the USTA. Such people would include the other drivers in the race, horse owners and trainers, people who gambled on the race and oddsmakers who research the history of individual horses and drivers. The group of people who rely on the USTA database in their occupations also includes insurance adjusters such as Ms. Popp who handle claims from harness race drivers and trainers. The reliability of the USTA database is enhanced because it is published online and errors can be corrected instantly, as opposed to a printed compilation, where errata sheets might have to be sent out to subscribers. This illustrates the very basis for this hearsay exception, which is that
[T]he trustworthiness of the compilations, demonstrated by the use therein by those directly concerned with the material in their everyday business lives, and the difficulty of obtaining direct testimony as to the preparation of the compilations outweigh any technical objection to their use as evidence. The compiler has an incentive to be as accurate as possible in order to foster continued public reliance on his publication. Biunno, NJ Rules of Evidence, citing Carrano, supra, and State v. Lungsford, 167 NJ Super 296 (App. Div. 1979).
The Court must also take note of N.J.S.A. 2C:37-5, entitled “Gambling Offenses; Presumption” which states that “in any prosecution under this article in which it is necessary to prove the occurrence of a sporting event, a published report of its occurrence in any daily newspaper, magazine or other periodically printed publication of general circulation shall be admissible in evidence and shall constitute presumptive proof of the occurrence of such event.” Notwithstanding the fact that New Jersey does not have a general hearsay exception for newspaper articles, this statute provides that a newspaper account of a sporting event is presumptive evidence that the event actually occurred for purposes of a criminal gambling prosecution. Thus, if a newspaper report that a particular person was the driver in a particular harness race would be admissible as presumptive evidence in a criminal proceeding, a printout from the USTA database of the very same information must surely be admissible as non-presumptive evidence in a civil administrative hearing.
The cases cited by Petitioner’s counsel to claim that hearsay evidence is only admissible in an administrative hearing when it is corroborated are also distinguishable from the present matter. NJ Division of Youth & Family Services v. L.A. resulted from a child abuse proceeding involving a specific statute, N.J.S.A. 9:6-8.46a(4), that required out of court statements by a child to be corroborated to support a finding of abuse or neglect. In Re Tenure Hearing of Donahue involved corroboration of a teacher’s user activity reports for her school computer by computer technicians. Neither case involved a specific exception to the hearsay rule such as N.J.R.E. 803(c)(17). The proper authority to look to on this issue is Reinhart v. DuPont, 147 NJ 156 (1996) where Justice Coleman, a former workers compensation judge, noted that while N.J.S.A. 34:15-56 provides that a judge of compensation “shall not be bound by the rules of evidence” his determination must be based on competent evidence. Thus, he concluded that “despite the inapplicability of the Rules of Evidence, they are still relevant in determining whether evidence is competent.” Id. at 163-164. It therefore follows that if information printed out from USTA website fell into one of the exceptions to the hearsay rule in the Rules of Evidence such as N.J.R.E. 803(c)(17) it is admissible in a workers compensation proceeding without any additional corroboration. In addition, Justice Coleman observed that “the purpose of not requiring strict compliance with the Rules of Evidence is to simplify the nature of proofs” in workers compensation proceedings, citing Gunter v. Fischer Scientific, 193 NJ Super 688 (App. Div. 1984), a case in where the Appellate Division criticized a workers compensation judge for being overly technical in evidence rulings. Reinhart at 163.
Nevertheless, there was corroboration of some elements of the USTA printouts. First, the USTA database listed the address of Louis DuBrel as “38 Concord Street, Cranford, New Jersey 07016” which is the same address listed by Petitioner when he first filed his claim petition, thereby indicating that the database was not referring to another individual with the same name. Furthermore, the USTA database also listed the Petitioner as a trainer, which was corroborated by his own testimony in which he acknowledged he was “listed as a trainer” although he claimed to be just “a trainer on paper.” DuBrel transcript at 31.
For all of the above reasons, the objection of Petitioner’s counsel was overruled and the USTA website printouts admitted into evidence. The printouts indicated that Louis DuBrel was the driver in harness races as follows: 1 purse start and 5 qualifying starts in 2005; 7 qualifying starts in 2006; 1 purse start and 14 qualifying starts in 2007; 14 qualifying starts in 2008; and 11 qualifying starts in 2009. The last race in which Mr. DuBrel participated as a driver was September 17, 2009 when he drove horse named “Finest Firewater” in a qualifying start at Harrington raceway in Delaware. The date of this race was one week prior to his testimony before this Court.
After the printouts from the United States Trotting Association website were admitted into evidence, counsel for the Petitioner was given the opportunity to provide evidence or testimony to dispute the validity of the information contained in the printouts. Counsel produced no further evidence or witnesses and the record was closed. 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.
Counsel for the Respondent subsequently moved to dismiss Petitioner’s claim pursuant to N.J.S.A. 34:15-57.4(c)(1) based on her contention that the Petitioner testified falsely regarding the nature of his participation in harness racing. N.J.S.A. 34:15-57.4(c)(1) was enacted pursuant to P.L. 1998, c. 74 entitled “An Act concerning workers compensation fraud and supplementing chapter 15 of Title 34 of the Revised Statutes” and provides that
“If a person purposely or knowingly makes, when making a claim for benefits pursuant to R.S. 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 division may order the immediate termination or denial of benefits with respect to the claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.”
The legislative history of this statute indicates that it is intended to “provide a Judge of Compensation with discretion regarding the termination of benefits and forfeiture of future benefits, thus permitting the judge to take into consideration the seriousness of the violation.” See Floor Statement to Assembly amendments to Senate committee substitute for S-251, 377, 725 and 779, dated June 18, 1998. Therefore, in considering Respondent’s motion, the Court must determine 1) whether Petitioner purposely or knowingly made a false or misleading statement or representation to the Court; 2) whether the statement or representation was material to the claim for benefits and made for the purpose of obtaining benefits; and 3) whether the violation was so serious as to warrant termination of benefits.
The statement to which Respondent’s counsel points was made during cross examination of the Petitioner. He testified that he can no longer “trailer” horses (i.e., lead them into a trailer and transport them over the road for several hours of driving) and stated further that while he is listed as a trainer “I can’t do it no more. All I am is a trainer on paper.” Respondent’s counsel then asked “So just to be clear… You still have the horses, you just don’t participate in any horse activities.” The Petitioner’s response was “I participate by brain only….I run my mouth…. I manage. I micromanage.” DuBrel transcript at 31. Clearly, the Petitioner was testifying that he engages in no physical activity with respect to harness racing. In addition, at the very close of his testimony he volunteered the following statement: “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.” Id. at 36, emphasis supplied. This is an unambiguous claim that he no longer drives horses, yet he made this statement just one week after he was the driver of “Finest Firewater” in a qualifying race in Delaware.
There is no charitable explanation that can characterize these statements made by the Petitioner under oath as anything other than false. Harness racing is not something from the Petitioner’s distant past that he forgot to mention. His last race occurred just a week before his testimony. This was not some isolated incident. It was his ninth race in calendar year 2009 and was a regular activity of the Petitioner’ for the past five years and something he engaged in an average of once a month for the previous three years. In fact, when Petitioner’s counsel was asked how the statement “I participate by brain only” could be considered a true statement if the Petitioner had been the driver in a qualifying race the prior week, counsel was unable to supply a rationale. Furthermore, Petitioner’s testimony lacked credibility in two other instances. His claim that anything more than idling a motorcycle would produce pain is inconsistent with his regular harness racing starts. In addition, his insistence that neurontin and fentanyl produced serious emotional side effects was contradicted by Dr. Becan, his own medical expert. Therefore, I find the statements made by the Petitioner in his testimony that he no longer drives horses to be purposely and knowingly false.
It is also clear that from the context of Petitioner’s remarks that his false statements were made for the purpose of obtaining benefits. 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. Consequently, I find that Petitioner’s false testimony was made for the purpose of obtaining benefits.
Furthermore, the testimony of both medical experts points to the materiality of the Petitioner’s false statements. When being examined by Respondent’s expert Dr. Thrower and his own expert Dr. Becan, the Petitioner did not mention that one of his continued activities is harness race driving. Dr. Thrower testified that if the Petitioner had been engaged in the sport of harness racing as a driver, it would have been important for him to know this to properly evaluate his condition. Thrower transcript at 25. He also testified that, having watched how harness racing is conducted, it was a fairly physical and stressful activity in which a driver would have to sit in a cart with very little back support and use enough strength to control the horse by pulling the reins. Id. at 28-30. It was Dr. Thrower’s opinion that the ability to engage in harness racing was inconsistent with the complaints given to him by the Petitioner. While Petitioner’s expert, Dr. Becan, did not agree with this assessment, he did concede that if a person has existing problems in the neck and back, engaging in harness racing as a driver “can potentially cause the problems to get worse.” Becan transcript at 49. I therefore find that the Petitioner’s concealment of his harness racing activity was material with respect to the evaluations of both medical experts; Dr. Thrower obviously would have lowered his assessment of the Petitioner’s disability and Dr. Becan would have had to consider whether Petitioner’s present complaints were somehow aggravated by his harness racing.
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).
Therefore, for the foregoing reasons, pursuant to N.J.S.A. 34:15-57.4(c)(1) I will order the termination of benefits and forfeiture of rights to compensation with respect to this claim. Accordingly, the claim petition is dismissed with prejudice. In addition, this matter is referred to the Director of the Division of Workers Compensation for a determination as to whether the appropriate law enforcement agencies should be notified.
I will assess stenographic fees of $150.00 to William C. O’Brien Associates and $650.00 to John F. Trainor, Inc. against the Respondent for testimony taken and various appearances made on the record.
J. Randall Corman, J.W.C.