                    NOT FOR PUBLICATION WITHOUT THE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




                                             2                                     A-1132-12T4
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.



                                             3                                     A-1132-12T4
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.



                                              4                                  A-1132-12T4
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.



                                            5                              A-1132-12T4
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




                                           6                                      A-1132-12T4
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.




                                                 7                                  A-1132-12T4
       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.




                                     9                                A-1132-12T4
      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




                                              11                                       A-1132-12T4
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.




                                              12                                   A-1132-12T4
       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.




                                             14                                A-1132-12T4
       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.




                                          19                                  A-1132-12T4
