The evidence must be such as to lead a reasonably cautious mind to the given conclusion.  The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth.  It need not have the attribute  of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.  Perez v. Monmouth Cable Vision, 278 N.J. Super.  275, 282 (App. Div. 1994); Lister v. J.B. Eurell Co., 234 N.J. Super.  64, 72 (App. Div. 1989); Harbatuk v. S & S Furniture Systems Insulation,  211 N.J. Super.  614, 620 (App. Div. 1986).

When respondent urges an alternative factual proposition or legal conclusion which will exonerate or mitigate its liability such as a Fraud Act violation, it, and not the petitioner, bears the burden of proof and persuasion on each element of this claim. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995); Cf.  Gulick v. H.M. Enoch, Inc., 280 N.J. Super.  96, 109 (App. Div. 1995).   Here it failed to meet that burden.  Its proofs were woefully lacking.

            Permanent disability is payable only if the impairment is significant and was due in a material degree to the compensable accident. N.J.S.A.  34:15-36. The specific language of the statutory definition requires:

            The 1979 Worker's Compensation Reform Act added these definitions as part of a legislative plan to install a pattern of cost containment for permanent disability awards as a balance for significantly increased disability benefits for seriously injured workers.  L. 1979 c. 283;  Perez v. Pantasote, Inc., 95 N.J. supra. 110‑118 ; Saunderlin  v E.I. Dupont Co., 102 N.J.  402 at 406‑410 (1986); Perez v. Monmouth Cable Vision, supra..   In Perez v. Pantasote, Inc., supra., the Court held that permanent partial disability must meet a legislatively mandated two step test.  There "must" first be a

satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs ...

 

Once a permanent disability is proven by such objective evidence, the next issue is whether the injury is minor or is serious  enough to merit compensation. ...

 

has [there] ... been an appreciable impairment of an employee's ability to work.  [Or is it] serious enough to interfere substantially with other aspects of the  employee's life. Perez 95 N.J. at 116‑118.

            Once the worker establishes such a disability following an accident, the employer has the burden of proof to establish the degree of prior loss of function to receive a  credit against the award for that prior impairment. N.J.S.A. 34:15-12 (d). The calculation of that credit has been dictated by Abdullah v. S.B. Thomas, Inc., supra.  Here the respondent is entitled to a credit of at least 15 % permanent partial on account of prior awards for permanent disability to his back.  If the respondent were to establish a larger degree of prior impairment, of course, its credit would exceed that amount.  Here respondent’s  proofs were that petitioner had the same permanent impairment and disability before and after this accident.  If  believed, this would merit dismissal of the claim for permanent disability.  I found its proofs not credible.

            This determination of the N.J.S.A. 34:15-12(d) credit at the amount of the earlier settlement is reinforced by the fact that Mr. Gann was injured in this accident on September 29, 1998, and under treatment for this case when his prior settlement was heard by Judge Smith on November 20, 1998. The medical reports presented to the judge all preceded the September accident, the new injury was mentioned on the transcript, and his testimony was all directed to the consequences of the 1995 accident.

            Respondent contends that petitioner’s conduct warrants invoking the Workers’ Compensation Fraud Act,  N.J.S.A. 34:15-57.4. This statute was enacted August 14, 1998 and is only applicable to conduct after that date.  Lombardo v. Revelon, Inc., 328 N.J. Super 484 (App. Div 2000).  While I find there was no misrepresentation to respondent or petitioner’s examiners, those events all occurred before passage of the Fraud Act and could not be considered if asserted at the November 1998 hearing. Lombardo v. Revelon, Inc., supra.   Considering the entirety of the record before Judge Smith, there appears to be no willfully false testimony before him.

            The pertinent portions of the Fraud Act are intended to stop fraud and material misrepresentation in claims for Workers’ Compensation benefits and the issuance of Compensation insurance policies.  If a worker is guilty of a violation, his entire benefits for that claim can be forfeited as well as holding that person open to a criminal proceeding.  An employer or insurer can only be liable in the context of coverage questions. The statute reads

Workers' compensation fraud, crime of fourth degree; civil liability

a. A person shall be guilty of a crime of the fourth degree if the person purposely or knowingly:

(1) 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 that is material to that claim for the purpose of wrongfully obtaining the benefits;

(2) Makes a false or misleading statement, representation or submission, including a misclassification of employees, or engages in a deceptive leasing practice, for the purpose of evading the full payment of benefits or premiums pursuant to R.S.34:15-1 et seq.; or

(3) Coerces, solicits or encourages, or employs or contracts with a person to coerce, solicit or encourage, any individual to make a false or misleading statement, representation or submission concerning any fact that is material to a claim for benefits, or the payment of benefits or premiums, pursuant to R.S.34:15-1 et seq. for the purpose of wrongfully obtaining the benefits or of evading the full payment of the benefits or premiums.

b. Any person who wrongfully obtains benefits or evades the full payment of benefits or premiums by means of a violation of the provisions of subsection a. of this section shall be civilly liable to any person injured by the violation for damages and all reasonable costs and attorney fees of the injured person.

c. (1) 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 that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.

(2) Notwithstanding any other provision of law, and in addition to any other remedy available under law, if that person has received benefits pursuant to R.S.34:15-1 et seq. to which the person is not entitled, he is liable to repay that sum plus simple interest to the employer or the carrier or have the sum plus simple interest deducted from future benefits payable to that person, and the division shall issue an order providing for the repayment or deduction.

(3) Notwithstanding any other provision of law, and in addition to any other remedy available under law, a person who evades the full payment of premiums pursuant to R.S.34:15-1 et seq. or improperly denies or delays benefits pursuant to R.S.34:15-1 et seq. is liable to pay the sum due and owing plus simple interest.

d. Nothing in this section shall preclude, if the evidence so warrants, indictment and conviction for a violation of any provision of chapter 20, 21 or 28 of Title 2C of the New Jersey Statutes or any other law. For the purpose of this section, "purposely," "knowingly" and "purposely or knowingly" have the same meaning as is provided in chapter 2 of Title 2C of the New Jersey Statutes.

      The record of this trial consists of multiple documents and 3 witnesses.  The witnesses were petitioner, and 2 forensic orthopedic examining physicians, Floyd Krengel, D.O. for petitioner and J. W. Fiedler for respondent. The following documents were placed in evidence by petitioner-    1.) Office records of treatment from March 4, 1997 to April 23, 1997 of Gordon Donald, an orthopedic surgeon; 2.) February 26, 1996 Emergency Room record of Bayshore Hospital for a head injury following an automobile accident; 3.) March 1, 1997 office record of John Paul Swidry, M.D. which was a follow up to the injuries sustained in the auto accident;   4.) January 26, 1999 to November 27, 2000 records of Alan F. Pertchik, M.D. of a neurological consultation and examinations (the initial examination states Mr. Gann was referred by his attorney); 5.) Dr. Krengel’s C.V.; 6.) August 30, 2000 examination report of Dr. Krengel; 7.) August 5, 1996 examination report of Sidney Tobias, M.D. which was in evidence in the prior case.; 8.) An undated certification of Deputy Attorney General Denise D’April filed with this court requesting reformation of the settlement placed on the record on November 20, 1998; 9.) March 5, 1999 Order Approving Settlement in C.P. 1996-1651;   10.)  March 5, 1999 Order Approving Settlement in C.P. 1995-23892; and 11..) Order Approving Settlement with Dismissal in 1996-25362 entered on March 5, 1999.

      Respondent’s exhibits were 1.) November 20, 1998 report of orthopedic consultation obtained by respondent from Robert Dennis, M.D.; 2.)  File and billing records of chiropractic and medical treatment paid by American Bankers Insurance Company subsequent to petitioner’s automobile accident; 3.) April 18, 1988 to June 6, 2001 office records of Peltzman Chiropractic Associates; 4.)   C.V. of J. W. Fiedler, D.O. ;5.) October 3, 1997 examination report of Dr. Fiedler; and  6.) September 8, 2000  examination report of Dr. Fiedler; and 7.) transcript of proceedings of November 20, 1998 when settlements in earlier cases were initially approved (these settlement orders were revised 4 months later at the request of respondent.)

      After reviewing the transcripts, voluminous records, and written summations, I make the following findings of fact and conclusions: 

      The content and procedural history and timing of Mr. Gann’s injuries is pertinent to the resolution of this case. His medical treatment record traces the development of anatomical changes and impairment over the years.  He did have some back and neck problems early as 1988, well before any of the injuries discussed in this case. The records of Dr. Peltzman reflect frequent chiropractic treatment to Mr. Gann’s cervical, thoracic, and lumbar spine.  His symptoms appear to vary from month to month. Mr. Gann is a big man, his weight has frequently been above 280 to 315 pounds. At one point, he had stomach surgery which did result in a significant weight loss, much of which has since been regained.  On June 2, 1995 petitioner was assaulted by a psychiatric patient who bit him on the chest. From that point forward he appears to present symptoms of tightness in the cervical and lumbar spine. This injury was the subject of C.P. 95-23892.  Initially this injury was consolidated with a December 12, 1995 injury covered by C.P. 96-1651 in a November 20, 1998 Order Approving Settlement for 27 ½ % partial total.  The Deputy Attorney General who was handling the case at that time filed a motion to reform the settlement asserting the impairment for that injury did not overlap with the later December injury.  The bite injury was eventually the subject of a new settlement order dated March 5, 1999 for 7 ½ % permanent partial for anxiety reaction and features of depression.  There was no record and the order does not bear either Mr. Gann’s signature or that of his attorney.

      On December 12, 1995 Mr. Gann was assaulted by a psychiatric patient. He sustained serious injury to his neck and lower back.  The treatment record reflects an increase in symptoms in his neck, back and legs.    On November 20, 1998, two months after the injury giving rise to this case, petitioner and the respondent entered into a settlement of the 1995 accidents for 27.5% permanent partial disability, with a breakdown of 20% orthopedic, of which 15% was for the back and 5% was for the neck; 7 1/2% was neuropsychiatric, an anxiety reaction with features of depression.   As noted above, the psychiatric residuals of the June incident were carved out and made subject of a subsequent separate Order Approving Settlement.  On March 5, 1999 a separate Order Approving Settlement was now entered for 20%, 5% for the cervical sprain and 15% for a lumbar sprain, lumbar myositis and a herniated disc at L5-S1 plus reimbursement to Mr. Gann for payments he had made to three treating physicians. 

      At the same time as the March 5, 1999 settlement orders claim petition, 1996-25362, for a March 10, 1996 kick in the stomach, neck, shoulder and back which had been dismissed as part of the November 20, 1998 settlement package was reopened and settled for $2,595  via Order Approving Settlement with Dismissal, N.J.S.A. 34:15-20.  One is left with the impression this was an attempt to even out the consequence of the reformation of the earlier judgment. There was no stenographic fee assessed for any of the March 5, 1999 settlement orders so, I assume there was no testimony on that day concerning any issue.  There was no signature of petitioner or his attorney on the Order.  The orders were paid, the money was never returned, no appeal was filed, so, I find all parties acquiesced in this resolution and it was a fair result.   The State has presented not a scintilla of proofs that any information was withheld from it or misrepresented by petitioner at the entry of the March 5, 1999 orders.

      Earlier, on November 20, 1998, Mr. Gann  agreed to the overall settlement and gave his current physical  complaints to his back and neck. This covered 3 pages of double spaced transcript. He complained of low back pain, radicular pain and temperature change into his thighs.  He spoke of an 80 pound weight gain, occasional use of Advil and Flexoril and anxiety in dealing with unruly patients.  Respondent bottoms its allegation of fraud at that hearing on petitioner’s  answer to a specific question by its  attorney:

      Q “And since these two incidents, have you ever injured the same body parts?”

       A”Just these two incidents.

      This question was followed by cross-examination questions which asked if he had “given all his complaints as a result of these accidents?”  This was followed by “did you give them [the examining doctors] all of your complaints as a result of the injuries, as a result of these accidents?” 

       His answer “I believe that I did, yes.”  

      There was no proof here that petitioner was in fact asked about any intervening accident or injury away from work. His answers were directed to all of his symptoms from the compensable accidents. The respondent has never filed an application to reopen those prior judgments.  It has presented no affirmative proofs that it was deceived as to the amount of the settlement when it settled his prior cases and then revisited the settlements and renegotiated the settlement in March of 1999.  The March 1999 Orders Approving Settlement which were entered at its behest included no evidence from petitioner.  The earlier Order was obviously treated as a nullity because it was replaced. 

      The respondent complains here that it was deprived of knowledge of an April 8, 1997 automobile accident where injured his neck and possibly his back.  It is helpful here to look to the forensic and treating records. Quite a bit of inconsistency and contradiction arises from these records.  Dr. Fiedler examined Mr. Gann for the first time in June 1996 and found permanent disability to the extent of 7 ½ % for the low back including the herniated L5-S1 disc, he offered no opinion concerning the cervical spine.  When he re-examined petitioner again on October 2, 1997, some 6 months after the non-work auto accident, he opined no change.  Dr. Fiedler stated that the weekly chiropractic treatment had no curative value.  It is thus hard to understand how respondent could have been deceived.  It was aware of the longstanding weekly chiropractic treatment.  I reviewed the billing records and reports generated in Mr. Gann’s auto accident.  The emergency room records record an injury to the cervical spine as does the immediate treatment records of his physician. The first indication I see of any mention of his back problem inconnection with the auto accident records  is a month later. Dr. Gordon Donald, a board certified orthopedic surgeon, saw him on or about April 16, 1997 for the automobile accident  and reported findings of a cervical and lumbar sprain. He found no sciatic notch tenderness, sciatica, leg pain  or similar pathology.  He offered no finding of a herniated disc.  I find it difficult to believe there was any permanent impairment as a result of the auto accident. It appears that he had soft tissue injuries which receded with time to the condition he was in before the auto accident. I see no evidence of any bony pathology or herniated discs or permanent change from that accident. If it was there, the respondent never proved it here. 

      One further note before I leave this allegation of fraud. The Respondent furnished no evidence of what was considered in the negotiation of the settlements or that actual result would have been different if it knew of the auto accident. In the context of petitioner’s testimony, his answers can not be said to be knowingly false or intended to defraud his employer. Dr. Fiedler stated that weekly chiropractic treatment was palliative.  It produced no witnesses who were present during the negotiation. It showed no reliable proofs that the result would have been different. The Deputy Attorneys General who represented the State in the earlier case were not involved in any way with the litigation of the case at bar. The State’s trial attorney in this case did not participate in the settlement of the prior cases.  The injury on which this case is based was known to the respondent and the its attorney, after all it was providing compensation benefits for this new injury and the fact of the new ongoing treatment was mentioned on the record by counsel. This is a man who in 1995 sustained a serious back injury as a result of doing his difficult job.     

       Turning now to the consequences of this September 29, 1998 work injury. He was working as a psychiatric nurse at Trenton Psychiatric Hospital when he was once again attacked by a patient. This time he injured his head, neck, shoulder and back. He was fearful of damage to the orbit bones of his right eye. With time he recovered from all of the injuries except for new  increased  pathology and disability to his lumbar spine with radiculopathy.

      Mr. Gann was seen at the employee infirmary.  On his way home from work, he stopped at Centrastate Hospital, Freehold, he was concerned mostly with the possibility of an orbit fracture or eye damage.  He was again seen at the employee infirmary.  His lumbar symptoms were becoming more debilitating. The respondent referred Mr. Gann to Robert Dennis, M.D., of Seaview Orthopedic Group, who is a board certified orthopedic surgeon.  His report of a November 30, 1998 examination diagnosed sciatica and recommended a neurological evaluation. He offered the opinion that the weekly chiropractic treatment was of no value.  The Respondent refused to follow the advise of its own medical consultant and did not refer Mr. Gann to a neurologist. 

Petitioner, tired of waiting, without authorization from respondent, but clearly with justification sought treatment from Dr. Alan F. Pertchik, a board certified neurologist. Dr. Pertchik diagnosed “Post-traumatic L4 radiculopathies, probably secondary to L3-4 or L4-5 HNP.” His attorney then filed a Motion for Medical benefits. On December 3, 1999, Judge Smith signed a consent order directing respondent to immediately authorize an MRI of the lumbar spine to be provided to Dr. Pertchik. The MRI confirmed the previously diagnosed herniated disc at L5-S1 but with increased degeneration at this level.  Surgery for his condition has not been discussed. Considering his weight, I have serious doubt that he would be a candidate.

      Petitioner’s testimony of his current continuing impairments was significantly worse than appears in the record at the time of his November 20, 1998 hearing. The findings of objective physical impairment revealed on all  credible clinical examinations are significantly worse and unlikely to improve.  Mr. Gann’s subjective complaints are consistent with the objective findings.  He now complains of increased loss of motion in flexion and extension of his spine.  He has back pain and complains of pain in the back of his legs. He told of electric type shocks going down both legs.  He now experiences burning or cold sensation in his legs. He can not stand or sit very long, and is frequently changing his position. 

He is now a management person and must sit at a computer. At times, his legs tend to give way, he feels like he has no control.  He recited incidents when he grabbed a tree or a lamp post to stay on his feet.  The back pain awakens him during the night.  He can not bend to pick up objects from the floor, nor, can he attend to his household chores or hobby of maintaining an antique car.. While these complaints are of a nature somewhat similar to those that he had before the 1998 injury. Now, his symptoms are more severe, especially to control of his legs.  He continues to work for the State, but is now a Supervisor of Nursing Services, a management position.  Still, he must at times have some direct patient contact. I have serious doubt that he could work as a ward or direct patient care nurse restraining unruly psychiatric patients. I find his complaints were validated by the findings of Dr. Krengel and treating records.

      I find that Dr. Krengel’s diagnosis as reported by him were all rooted in objective medical findings on his examination and the MRI.  His medical findings and diagnosis confirmed earlier findings of the two treating physicians, Dr. Pertchik and Dr. Dennis .  When compared to the earlier findings of Dr. Tobias, petitioner’s forensic examiner for the earlier injuries, there does appear to be a worsening.  The opinions and findings of Dr. Pertchik and Dr. Dennis are entitled to deference accorded treating physicians. See Bober v. Independent Plating  Corp.,  28 N.J. 160 (1958).   DeVito v. Mullen's Roofing Co., 72 N.J. Super.  233, 236 (App.Div. 1962) certif. den. 37 N.J. 222 (1962).  

      Dr. Krengel’s clinical findings were well documented in his report and testimony. They showed significant impairment. Because his findings were in agreement with the findings of the treating physicians, I accord more weight to his conclusion of causation, diagnosis and disability than accorded to Dr. Fiedler.  Dr. Krengel testified to an overall permanent disability for cervical and orthopedic disability of 66 2/3 %.  He did not break out the disability for the cervical impairment and low back. I note the earlier settlement of 7 ½ % for the cervical impairment so, I will break out those findings in reaching my conclusion of disability.