Opinion
A-3353-20
02-22-2023
JOHN CALDWELL, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent
Samuel M. Gaylord argued the cause for appellant (Szaferman, Lakind, Blumstein &Blader, PC, attorneys; Samuel M. Gaylord, on the brief). Porter R. Strickler, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Porter R. Strickler, on the brief).
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.
Argued January 10, 2023
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. xx1295.
Samuel M. Gaylord argued the cause for appellant (Szaferman, Lakind, Blumstein &Blader, PC, attorneys; Samuel M. Gaylord, on the brief).
Porter R. Strickler, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Porter R. Strickler, on the brief).
Before Judges Whipple and Smith.
PER CURIAM
Petitioner John Caldwell appeals from the final decision of the Public Employees' Retirement System Board of Trustees denying his claim for accidental disability benefits. We affirm.
Petitioner was a corrections officer at Bayside State Prison. On November 29, 2016, petitioner was involved in a work-related injury where he slipped and hit his left knee on a steel bench. Petitioner informed his supervisor, went to the infirmary, and returned to work afterwards. After the incident, he experienced some pain in his knee and underwent an MRI. Petitioner returned to work a few weeks later after undergoing a regimen of physical therapy.
Nearly two months after he sustained the injury, petitioner underwent an operative arthroscopy on his left knee. He was out of work for one month and was subsequently cleared to return to work without restriction. He returned to work in March 2017 and continued to work his normal shifts and overtime hours. However, petitioner continued to experience pain. In July 2018 petitioner underwent a partial knee replacement.
A month after the knee replacement, petitioner was released to work without restriction again, however, after a request for clarification from the employer, the surgeon changed his recommendation from full duty to modified duty.
Petitioner applied for an Accidental Disability Pension on October 23, 2018. Nearly a year later, the Board found petitioner was totally and permanently disabled from performing his job. However, the Board also found petitioner's disability was an aggravation of a preexisting condition and denied the application. Petitioner appealed, and the matter was heard before an ALJ on August 27, 2020. Witnesses included Dr. David Weiss for the petitioner, petitioner himself, and Dr. Andrew Hutter for the Board.
The ALJ made preliminary findings in her written statement of reasons: petitioner credibly testified there were no issues with his knee prior to November 29, 2016; "[t]he MRI 'impression' noted diffuse degeneration and tear of the medial meniscus and medical femorotibial and patellofemoral arthritis with tiny joint bodies behind the PCL"; "the medial compartment of [petitioner's] left knee showed a complex tear .... [with] an area of bare bone in the anterior medial plateau"; "[t]he area of bare bone that was noted by Dr. Barrett [the surgeon who performed petitioner's knee surgery] was the same location where the tear occurred"; and "[t]he area of bare bone meant that there was no cartilage present which was consistent with the MRI impression."
The ALJ analyzed the competing expert testimony this way:
Here, both doctors agree that [petitioner] had degenerative changes prior to his accident that were asymptomatic. Both agreed that both the degenerative changes and the injury played a role in [petitioner's] disability. Additionally, both doctors were in accord that [petitioner] was totally and permanently disabled from performing his job responsibilities as a corrections officer. The crux of their differences was in what the substantial factor was in causing [petitioner's] permanent disability - the degenerative changes or the injury. ....
The ALJ then made findings as to the expert's testimony:
I found both doctors to be extremely credible and well-qualified, however, I found Dr. Hutter's opinion to be more persuasive for several reasons. First, it is undisputed that [petitioner] had significant pre-existing degenerative changes at the time of the accident that were asymptomatic. These degenerative changes were evidenced by the MRI and confirmed in the January 2017, [o]perative [r]eport which noted an area of bare bone in the anterior medial plateau - the same location where the tear occurred. Also noted in the January 2017, [o]perative [r]eport was that the medial compartment showed a complex tear. Dr. Hutter opined that that the pre-existing degenerative changes and the impact injury caused the meniscus tear. Unlike Dr. Weiss's opinion, Dr. Hutter opined that the injury did not contribute to the already significant degenerative changes, however, it did play a role in the tear. Both doctor[]s agreed that the injury alone would not have necessitated [petitioner] to undergo a partial knee replacement[,] but Dr. Hutter credibly testified that
given the extent of the osteoarthritis present in [petitioner's] knee at the time of the injury, it was not a question of if, it was a question of when he would have required treatment. The injury only aggravated an existing condition and caused it to be symptomatic.
The ALJ found petitioner's permanent and total disability was caused by pre-existing osteoarthritis present in his left knee at the time of the injury. The ALJ concluded that petitioner's November 29, 2016 slip and fall while on duty performing his job as a corrections officer resulted in an aggravation of a preexisting condition. The ALJ concluded in her initial decision that the petitioner failed to sustain his burden of proof showing he was entitled to accidental disability benefits.
The Board issued a final decision and made various findings, among them: that petitioner was totally and permanently disabled from the performance of his regular and assigned duties as a corrections officer; that his disability was undesigned and unexpected; and that it occurred during and in the course of petitioner's regular duties. The Board adopted the ALJ's findings and concluded petitioner was not entitled to accidental disability benefits, but rather ordinary disability benefits.
On appeal, petitioner argues that the Board erred by admitting the expert testimony of Dr. Hutter, the Board's expert, because it was a net opinion. Petitioner further argues when discounting the testimony of Dr. Hutter, his proofs were sufficient to show his disability was caused by the incident of November 29, 2016.
Our "review of administrative agency action is limited." Russo v. Bd. of Trs., Police &Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). "A reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). We may reverse a decision "if it is arbitrary, capricious, or unreasonable, or if it is not supported by substantial credible evidence in the record as a whole." P.F. ex rel. B.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 529-30 (1995) (citing Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993)). "In reviewing a final agency decision, such as that of the Board . . ., we defer to factfindings that are supported by sufficient credible evidence in the record." McClain v. Bd. of Rev., 237 N.J. 445, 456 (2019) (citing Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997)). "[I]f substantial evidence supports the agency's decision, 'a court may not substitute its own judgment for [that of] the agency's even though the court might have reached a different result. . . .'" In re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We generally "defer to an agency's expertise and superior knowledge of a particular field." Ibid. (quoting Greenwood, 127 N.J. at 513).
We consider petitioner's net opinion argument first. N.J.R.E. 703 "addresses the bases of opinion testimony by experts." State v. Townsend, 186 N.J. 473, 494 (2006) (internal quotation marks and citation omitted). The Rule permits expert opinion based on:
facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject.
[Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008) (quoting Townsend, 186 N.J. at 494)].
"The corollary of [Rule 703] is the net opinion rule, which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Ibid. (alteration in original). "[T]he net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Townsend, 186 N.J. at 494 (quoting Rosenberg v. Tavorath, 352 N.J.Super. 385, 401 (App. Div. 2002)).
Here, the Board adopted the findings of the ALJ, who found Dr. Hutter: was an expert in orthopedic surgery and general orthopedics; he personally examined petitioner in 2019; and he reviewed petitioner's medical records and history, including the operative report and MRI. There is ample evidence in the record to conclude Dr. Hutter's testimony was supported by facts or data derived from Dr. Hutter's personal observations, evidence admitted at trial, and/or data normally relied upon by experts in forming opinions. Polzo, 196 N.J. at 583.
We turn to the merits of petitioner's argument, which is that he is entitled to accidental disability benefits because the 2016 incident caused his non-symptomatic preexisting condition to "morph" into a total disability, citing Petrucelli v. Bd. of Trs. of the Pub. Emp. Ret. Sys., 211 N.J.Super. 280 (App. Div. 1986). We are not persuaded.
Petitioner contends the 2016 incident was the substantial contributing cause of his permanent disability. To establish an entitlement to accidental disability retirement benefits under N.J.S.A. 43:16A-7(a)(1), a claimant must prove:
1. that [they are] permanently and totally disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);
3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
4. that the disability was not the result of the member's willful negligence; and
5. that the member is mentally or physically incapacitated from performing his [or her] usual or any other duty.
[Richardson v. Bd. of Trs., Police &Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007).]
"The polestar of the inquiry is whether, during the regular performance of [petitioner's] job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the [petitioner]." Id. at 214.
In Petrucelli the Board denied an application for accidental disability retirement benefits under N.J.S.A. 43:15A-43, finding the appellant was totally and permanently disabled as a result of "pre-existing long-standing arthritis." 211 N.J.Super. at 281. The record showed the appellant fell while working and sustained injuries to his cervical or thoracic spine. Id. at 282-83. X-rays showed he had certain pre-existing degenerative conditions to the injured areas of the spine, including spondylolisthesis. Id. at 283. We noted the appellant was forty-nine years old at the time of the accident, and while he performed a substantial amount of heavy labor, "he had never experienced any problems with his back." Id. at 288. This court pointed out that when he was x-rayed following the accident, he learned for the first time that he had a spondylolisthesis, which was previously non-symptomatic. Ibid. We concluded it was "entirely speculative" whether the appellant would have developed low-back symptoms independently of the accident and held the appellant's disability was the direct result of the accident, not the non-symptomatic underlying condition. Id. at 289.
Here, the ALJ distinguished Petrucelli from petitioner's case:
Unlike Petrucelli, however, the [petitioner] in this matter had significant pre-existing osteoarthritis in his knee at the time of the accident. This was clearly noted on the MRI performed within days of the accident - the extent of which, was further delineated when [the surgeon] performed the Arthroscopic Partial Medical Meniscectomy approximately two months after the accident. One of [the surgeon's] findings was that there was bare bone in the anterior medial plateau - the location where the tear occurred. Both experts agreed that the bare bone occurred over time and was not a result of the accident. Both experts also agreed that the injury alone would not have necessitated the appellant to subsequently undergo a uni-compartmental arthroplasty - or partial knee replacement. Notably, the partial knee replacement was done on the medial side which was where most of the arthritis was located.
The incident/injury alone was not the substantial contributing cause of his disability, it was a combination of the significant degeneration that was already present in the knee and the injury to the knee. While the [petitioner] was asymptomatic prior to the accident, it was not a question of if, rather a question of when he would be symptomatic and have required treatment given the significant level of deterioration at the time of the accident.
We find petitioner failed to meet his burden in proving the Board's final decision was unreasonable. The Board's conclusions are supported by sufficient and credible evidence in the record, including the opinions of two experts who relied on their personal examinations of petitioner, the surgeon's operative report, and the MRI. Because we find substantial credible evidence to support its final decision, we will not substitute our judgment for the Board, and we defer to its expertise. In re Carter, 191 N.J. at 483.
Affirmed.