Natalie Bellino v. Verizon Wireless ( 2014 )


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  •                     NOT FOR PUBLICATION WITHOUT THE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