IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE CERTIFICATION OF SCOTT D. GREENBERG, D.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

SUSPENSION OR REVOCATION OF

THE CERTIFICATION OF

SCOTT D. GREENBERG, D.C.

LICENSE NO. 38MC00287500

TO PRACTICE AS A DOCTOR OF

CHIROPRACTIC IN THE STATE OF

NEW JERSEY.

_______________________________

January 6, 2017

Argued November 29, 2016 Decided

Before Judges Reisner and Rothstadt.

On appeal from the Division of Consumer Affairs, New Jersey Board of Chiropractic Examiners, Docket No. 12-08-00158-5.

Sean R. Callagy argued the cause for appellant Scott D. Greenberg, D.C. (Callagy Law, P.C., attorneys; Samuel S. Saltman and Christopher R. Miller, on the brief).

Virginia Class-Matthews, Deputy Attorney General, argued the cause for respondent New Jersey State Board of Chiropractic Examiners (Christopher S. Porrino, Attorney General, attorney; Ms. Class-Matthews, on the brief).

PER CURIAM

Scott D. Greenberg, D.C., appeals from an April 23, 2015 final order of the State Board of Chiropractic Examiners (Board), revoking his chiropractic license, and precluding him from applying for reinstatement of his license for five years from the date of the order. We affirm.

I

The Board's order sets forth the factual background in a level of detail which need not be repeated here. To summarize, Greenberg was arrested in 2011, and indicted in 2012, in connection with a two-year, organized scheme in which he paid runners to refer auto accident victims for treatment at his seven chiropractic offices. Greenberg was also separately indicted on multiple counts after the police found numerous marijuana plants in a special "grow room" in his home.

On January 11, 2013, Greenberg pled guilty in the criminal cases, pursuant to a negotiated plea bargain. At the plea hearing, he admitted that, by agreement with a local attorney, they both used runners to solicit accident victims, who then used the lawyer's legal services and obtained chiropractic treatment from Greenberg. He admitted to earning over $655,000 through this scheme. There was no allegation that the patients were not treated, but Greenberg pled guilty to defrauding the insurance companies that paid for the treatment. Greenberg admitted knowing that the insurance companies would not have paid if they knew that he unlawfully obtained the patients by using runners. Greenberg also admitted that he was "an active marijuana user" and that he grew more than ten but fewer than fifty marijuana plants in his home.

On April 1, 2013, Greenberg was sentenced to an aggregate term of six years in prison, with no period of parole ineligibility. He was also ordered to make restitution of about $655,000.1 In arriving at the sentence, which was lower than the eight years the State requested, the judge acknowledged that Greenberg was unlikely to re-offend and had provided cooperation with law enforcement. Greenberg was released to the Intensive Supervision Program (ISP) after serving nine months in prison.

In the administrative prosecution leading to his license suspension, Greenberg's attorney argued that the Board should only impose an eighteen-month suspension. Alternatively, he contended that if the Board imposed the five-year suspension the Attorney General sought, the suspension should be retroactive to 2013, when Greenberg voluntarily ceased practicing chiropractic. The attorney also pointed out that Greenberg had been successfully treated for the addiction that had led to his growing marijuana for his own use.

At a hearing before the Board, Greenberg stipulated that he committed the acts with which he was charged. The Board granted summary judgment on liability and then heard Greenberg's testimony in support of his claim for mitigation of the penalty. In his testimony, Greenberg expressed his remorse for his violations of the law and his extremely poor judgment. He explained that he began giving his mother marijuana to ease her pain when she was dying of cancer. He then became addicted to pain pills after spinal surgery, and started using marijuana for his continuing back pain. Greenberg, who was then fifty-five years old, also described his horrible experiences in prison, his financial ruin, and the impact of his conviction and imprisonment on his family. In her testimony, his wife corroborated his description of those hardships.

Addressing his practice, Greenberg testified that he had voluntarily stopped practicing in April 2011. However, on cross-examination, he admitted that he had not personally treated patients since at least 2009 and possibly as early as 2007. While the insurance fraud scheme was ongoing, he did not treat patients, but instead employed several other chiropractors who treated patients at seven offices that he owned. In response to a question from the Board, he testified that between 2009 and 2011, his chiropractic offices collectively grossed between five and seven million dollars a year. Also in response to the Board's question, Greenberg admitted that, as part of the "runner" scheme with the attorney, he paid the attorney between $500 and $1000 for each patient the attorney referred to him.

In its written decision, the Board considered and specifically acknowledged all of Greenberg's mitigation testimony. However, the Board also considered that Greenberg had violated multiple provisions of the chiropractor licensing act prohibiting fraud and dishonesty, N.J.S.A. 45:1-21(b), professional misconduct, N.J.S.A. 45:1-21(e), and being convicted of a crime of moral turpitude, N.J.S.A. 45:1-21(f). Focusing on the insurance fraud scheme, the Board found that the magnitude of Greenberg's offenses - and the harm he caused to the insurance companies, the public, and "the integrity of the profession" - outweighed the mitigating circumstances to which he testified.

The Board also found that Greenberg "lack[ed] good moral character and [j]udgment," which is a prerequisite for licensure. See N.J.S.A. 45:9-41.5. The Board further found that, despite his claims of financial ruin, Greenberg produced "no proof whatsoever of lack of financial resources" with which to pay the significant penalties and restitution imposed on him.

The Board therefore imposed a minimum license revocation period of five years from the date of the April 23, 2015 order. The Board also required that as part of any application to reinstate his license, Greenberg would need to "demonstrate full compliance with the criminal sentence and his fitness to practice chiropractic." Since Greenberg was sentenced to a six-year prison term on April 1, 2013 - although he is not now physically imprisoned - his "criminal sentence" will not terminate until April 2019. One year later, he will be able to apply to reinstate his license.

II

On this appeal, our review of the Board's choice of the sanction to be imposed is limited. In re Zahl, 186 N.J. 341, 353 (2006). It is not our role to substitute our judgment for that of the agency. Id. at 354. Rather we consider whether, in rendering its decision, the Board abused its discretion or acted contrary to its statutory authority. In re Polk, 90 N.J. 550, 578 (1982). In making our determination, we consider whether the Board has fulfilled its obligation to "scrupulously consider all factors relevant to continued licensure" including "the public interest." Id. at 579.

We consider whether the agency's decision was so unsupported by the record as to be arbitrary and capricious. In re Herrmann, 192 N.J. 19, 27-28 (2007). In the disciplinary context,

"the test is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" The threshold of "shocking" the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result.

[Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578).]

Based on our review of the record, we cannot conclude that the Board's decision was arbitrary and capricious, or that the minimum five-year license revocation was so harsh as to shock the conscience. See Zahl, supra, 186 N.J. at 354. As the Court held in Zahl, "dishonesty is a sufficient basis to justify license revocation." Zahl, supra, 186 N.J. at 354. Like the doctor in Zahl, who fraudulently over-billed the Medicaid program, Greenberg engaged in a long-term illegal scheme to enrich himself by using runners and paying kick-backs to an attorney for patient referrals. As in Zahl, his conduct warranted license revocation.

We reject Greenberg's argument that in fashioning the proper sanction, the Board was only entitled to consider whether he was likely to re-offend. That is not the standard. The integrity and "reputation of the profession" are also legitimate considerations. N.J.S.A. 45:9-41.18 (expressing the Legislative purpose in establishing the Board). The Court's discussion in Zahl is relevant here

Doctors today interact with a broad array of actors beyond their patients, including the federal and state governments, private insurance companies, and medical colleagues. Engaging in dishonest behavior with those non-patient actors has ramifications for the public at large in the form of increased taxes to fund public healthcare programs, higher insurance premiums, added litigation, and the like. Moreover, patients rightfully may fear entrusting a deceitful physician with their lives and the lives of their loved ones for it is "difficult to compartmentalize dishonesty in such a way that a person who is willing to cheat his government . . . may yet be considered honest in his dealings with his patients." . . . "[C]onduct may indicate unfitness to practice medicine if it . . . lowers the standing of the medical profession in the public's eyes."

[Zahl, supra, 186 N.J. at 354-55 (citations omitted).]

Unlike In re Fanelli, 174 N.J. 165, 166-67 (2002), on which Greenberg relies, in this case the Board gave Greenberg a full hearing on mitigating circumstances and specifically considered the evidence he presented before deciding what penalty to impose. Unlike Polk, supra, where a remand was warranted, we cannot find here that the Board "may have reached a fixed determination as to punishment without giving sufficient consideration to the mitigating circumstances which [the licensee] sought to present on his behalf." Polk, supra, 90 N.J. at 579-80.

While the Board could certainly have imposed a shorter revocation period before permitting Greenberg to apply for reinstatement, we cannot say that the Board's decision was conscience-shocking or inconsistent with the record. See Herrmann, supra, 192 N.J. at 28-29. Greenberg argues that the Board should have treated the five-year revocation period as commencing in 2013 instead of 2015. However, in the years leading up to his arrest, Greenberg was not personally treating patients at all; he was just paying runners and profiting from his illegal conduct. In that context, his argument that he "voluntarily" ceased practicing chiropractic in 2013 rings hollow.

Because the Board's decision was not arbitrary or capricious and the penalty does not shock the conscience, we have no basis to disturb the order on appeal.

Affirmed.

1 In a separate administrative proceeding, Greenberg paid a $500,000 penalty to the Department of Insurance.