Opinion
DOCKET NO. A-4478-13T1
01-11-2016
EDWARD O'NEILL, Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent.
Barbara E. Riefberg argued the cause for appellant (Shimberg & Friel, P.C., attorneys; Ms. Riefberg, on the brief). John J. Hoffman, Acting Attorney General, argued the cause for respondent (Mr. Hoffman, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas and Thomas R. Hower, Deputy Attorneys General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from the Board of Trustees, Public Employees' Retirement System, Docket No. 2-10-275055. Barbara E. Riefberg argued the cause for appellant (Shimberg & Friel, P.C., attorneys; Ms. Riefberg, on the brief). John J. Hoffman, Acting Attorney General, argued the cause for respondent (Mr. Hoffman, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas and Thomas R. Hower, Deputy Attorneys General, on the brief). PER CURIAM
Petitioner, Edward O'Neill, appeals from an April 17, 2014 final administrative determination by the Board of Trustees of the Public Employees' Retirement System (PERS) denying his application for accidental disability retirement benefits. We affirm.
Petitioner worked as a construction code inspector for Monroe Township. On February 8, 2010, petitioner drove to work in his personal vehicle, pulled up to the front door of his office, clocked in, and then parked. On his way back to his office, petitioner brushed off snow from a town truck and slipped and fell on ice. Petitioner got up and worked that day.
Petitioner alleged that he injured his left shoulder and low back as a result of the accident. X-rays and MRIs, conducted before the fall, showed that petitioner had been suffering from degenerative conditions to his left shoulder and low back. Petitioner underwent back surgery in the 1970s. His preexisting shoulder and back problems never completely resolved. After the accident, petitioner had shoulder surgery and missed two weeks from work. Approximately ten months after the fall, petitioner began receiving injections in his low back for pain relief. Petitioner's low back later became infected, which resulted in him being immobilized in a full-torso and one-leg body brace.
In June 2012, petitioner, who was approximately sixty-seven years old, applied for accidental disability retirement benefits alleging he was unable to perform his job duties because he injured his left shoulder and low back. He claimed he would inexplicably fall without warning and that he could no longer climb or crawl when making inspections. PERS denied petitioner's application.
The matter proceeded to a hearing before an administrative law judge (ALJ). Petitioner testified at the hearing and presented testimony from Dr. Ralph Cataldo, an expert in the field of osteopathic medicine and pain management; his wife; and a co-worker. Petitioner's treating doctor, Dr. Lisa Marino, refused to testify in person and, as a result, petitioner moved to allow Dr. Marino to testify on videotape, which the judge denied. PERS presented testimony from Dr. Gregory Maslow, an expert in the field of orthopedics and orthopedic surgery.
The ALJ found petitioner was not permanently and totally disabled, his slip and fall was not the direct cause of his disability, and he was not engaged in his regular job duties when he was injured. PERS accepted the ALJ's recommendation and issued the final decision under review, thereby reaffirming its initial decision to deny petitioner's application.
On appeal, petitioner argues that PERS erred by concluding he was not permanently and totally disabled, the accident was not the direct cause of his alleged disability, and the accident did not occur as a result of his regular or assigned duties. Finally, petitioner contends the ALJ abused his discretion by not allowing Dr. Marino to testify on videotape.
"The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). "'[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Succinctly,
[o]ur review of administrative agency action is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. However, because "questions of law are the province of the judicial branch," Steven L. Lefelt et al., 37 New Jersey Practice: Administrative Law Practice § 7.19 at 387 (2d ed. 2000), we are "in no way bound by an agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), particularly when "that interpretation is inaccurate or contrary to legislative objectives," G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999). Like all matters of law, we apply de novo review to an agency's interpretation of a
statute or case law. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002).
[Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citation omitted).]
To obtain accidental disability retirement benefits, an employee must prove
1. that he is 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; an[d]
5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
[Richardson v. Bd. of Trs., 192 N.J. 189, 212-13 (2007).]
The qualifications to be awarded accidental disability retirement benefits under N.J.S.A. 43:15A-43 are more restrictive than ordinary disability benefits. Petitioner bears the burden of establishing permanent and total disability. Our Supreme Court has explained that a petitioner
must be permanently and totally disabled, mentally or physically, from performing his own or any other available job. That is an extraordinarily high threshold that culls out all minor injuries; all major injuries that have fully resolved; all partial or temporary disabilities; and all cases in which a member can continue to work in some other capacity.
[Richardson, supra, 192 N.J. at 195.]
Crediting the expert testimony of Dr. Maslow, the ALJ concluded that petitioner was not permanently and totally disabled. Dr. Maslow made findings based on objective tests performed on petitioner and concluded he could perform his job with restrictions. In contrast, the ALJ determined that Dr. Cataldo's testimony was not as compelling because he relied on petitioner's "subjective complaints to arrive at his opinion, and his diagnosis was not based on review of any pre-2010 records." The ALJ also noted that petitioner testified he is able to do certain chores in his home, which included moving a three-foot maple tree.
The ALJ's findings are supported by substantial credible evidence in the record. Dr. Maslow conducted a physical examination of petitioner, and noted generally that petitioner was "a healthy appearing man"; "was not wearing any brace, or support, or sling"; was able to get on and off the exam table without difficulty; was able to stand comfortably; had normal balance in the exam room; and did not require a cane or any other support. Dr. Maslow testified petitioner's neck exam was normal, and his left shoulder had proper functioning despite the surgery. Specifically, Dr. Maslow found petitioner had "excellent range of motion at the left shoulder, full range of motion in all planes, including internal rotation which is the hardest to come up with when you've had rotator cuff trouble." Dr. Maslow found petitioner had normal shoulder stability in the left shoulder and there were no irregularities when moving the shoulder or with his arms. The doctor concluded that "although [he] knew at the time [he] saw [petitioner] from the records and from what [petitioner] had told [him] that there was a problem at the rotator cuff area of the shoulder, [he] didn't find it on the clinical examination."
As to the low back, Dr. Maslow had petitioner undertake a series of motions to test the low back, and found all the motions normal; he did not "see any muscle spasm in the low back." There was no sign of infection. Dr. Maslow "looked at the neurologic exam of [petitioner's] legs" and found that petitioner's reflexes were normal, with normal sensation to touch, and normal strength. As a result of his thorough examination, Dr. Maslow found
on examination . . . in September of 2012 there was first no clinical evidence of the problem which was found to still exist at the shoulder. I understood that there was that shoulder problem, but I did not find evidence of it on clinical exam. At his low back he had a very unremarkable examination, a very normal examination, no evidence of the kind of severe pain that can occur with discitis, normal motion, normal strength in a normal neurologic exam.
As a result of these findings, Dr. Maslow concluded that petitioner was not permanently and totally disabled and could return to work with restrictions, such as not climbing ladders and refraining from overhead lifting and reaching.
Petitioner's expert, Dr. Cataldo, admitted on cross-examination that prior to the date of his testimony, he did not review any of petitioner's pre-2010 medical records. Dr. Cataldo further testified that even after reviewing the pre-2010 medical records containing evidence of previous injury to petitioner's low back and degeneration of the shoulder, his opinion remained unchanged. The ALJ determined that this diminished Dr. Cataldo's credibility. See Cnty. of Middlesex v. Clearwater Vill., Inc., 163 N.J. Super. 166, 174 (App. Div. 1978) (explaining a trial judge, as the factfinder, is free to accept all, some, or none of an expert's opinion), certif. denied, 79 N.J. 483 (1979).
Finally, the record reflects petitioner attempted to run and jog after his accident and was able to move a three-foot maple tree. Records presented at the hearing indicated petitioner was fit for full duty up until he sustained the low-back infection. Thus, petitioner has not met his burden to establish that he was permanently and totally disabled as a result of the February 8, 2010 accident. Petitioner has not met the high threshold of establishing that he cannot perform "his own or any other available job." Richardson, supra, 192 N.J. at 195. In fact, when petitioner returned to work with a sling after his shoulder surgery, he testified if he could not perform a particular inspection, he would "get someone else to do it."
Even though we affirm the conclusion petitioner is not entitled to benefits as the evidence does not show he was completely and permanently disabled, for completeness we examine the causation challenge and review whether the alleged disabling condition was the "direct result" of petitioner's slip and fall. N.J.S.A. 43:15A-43 (emphasis added). We conclude the ALJ's finding that petitioner's accident was not the direct cause of his alleged disability was also supported by substantial credible evidence in the record. Much like the permanent and total disability inquiry, the "direct result" inquiry is also designed to be undertaken stringently. See Cattani v. Bd. of Trs., 69 N.J. 578, 584 (1976) (explaining that New Jersey courts, in analyzing and interpreting the "direct result" and "traumatic event" language, have concluded the Legislature "intended to make the granting of an accidental disability pension more difficult"). Our Supreme Court explained:
In 1966 the accidental disability provisions of the PERS statute were amended and changed fundamentally. The amendment deleted the terminology that the disability simply be a "result" of injuries from an employment "accident," substituting instead the current requirements that the disability, total and permanent in nature, constitute the "direct result," not of an accident, but rather of a "traumatic event" . . . .
[Gerba v. Bd. of Trs., 83 N.J. 174, 182 (1980).]
We are aware that insofar as Gerba analyzes the "traumatic event" language of the statute, it has been superseded by Richardson. However, Gerba is one of the few authorities that focuses on the issue of causation, which requires us to determine whether the traumatic event caused the alleged disability. --------
However, N.J.S.A. 43:15A-43 does not require the trauma be the exclusive or sole cause of the disability. Id. at 187. Thus,
accidental disability in some circumstances may arise even though an employee is afflicted with an underlying physical disease bearing causally upon the resulting
disability. In such cases, the traumatic event need not be the sole or exclusive cause of the disability. As long as the traumatic event is the direct cause, i.e., the essential significant or substantial contributing cause of the disability, it is sufficient to satisfy the statutory standard of an accidental disability even though it acts in combination with an underlying physical disease.
[Ibid.]
Here, the ALJ explained that petitioner had pre-existing left shoulder issues, as indicated in Dr. Maslow's report. The ALJ noted that "an MRI of [petitioner's] shoulder indicated that he had partial cuff tearing long before" the February 8, 2010 slip and fall. The ALJ found it "difficult to find convincing Dr. Cataldo's representations that his opinion remained unchanged that [petitioner] had no functional impairment prior to February 8, 2010[,]" even after reviewing the pre-2010 documents. The ALJ also noted that Dr. Cataldo acknowledged petitioner's bulging disc in his low back occurred prior to the fall and was aggravated as a result. Thus, the ALJ found that the fall was an aggravation or acceleration of a pre-existing injury.
The ALJ's findings are supported by substantial credible evidence in the record. Dr. Cataldo failed to review petitioner's pre-2010 medical records prior to the date of the hearing, calling into question his causation analysis. Defense counsel asked Dr. Cataldo whether the report indicating petitioner's bulging disc arose before 2010 influenced his analysis and Dr. Cataldo answered "I would call it an aggravation of a prior bulging disc." Given Dr. Cataldo's vacillation and Dr. Maslow's thorough analysis and conclusion that the accident did not cause petitioner's disability, the ALJ properly determined petitioner had not carried his burden to establish the February 8, 2010 accident was the direct cause of his disability.
Here, petitioner had a pre-existing injury before the fall in both his low back and left shoulder. The fall undoubtedly aggravated the injuries in those areas, but petitioner provided insufficient evidence that the fall was the "substantial contributing cause of the disability." "Where, as here, the determination is founded upon sufficient credible evidence seen from the totality of the record and on that record findings have been made and conclusions reached involving agency expertise, the agency decision should be sustained." Gerba, supra, 83 N.J. at 189.
Because we have concluded petitioner was not permanently and totally disabled as a result of the February 8, 2010 accident and his injury was not the direct cause of his disability, we need not address whether the accident occurred during and as a result of performance of his regular and assigned duties.
Finally, petitioner contends that the ALJ erred in refusing his request to present a videotaped deposition of his treating physician. As a general rule, admission or exclusion of relevant evidence is within the discretion of the ALJ and will not be disturbed "unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). The decision will not be disturbed unless it is "so wide of the mark that a manifest denial of justice resulted." Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009). The ALJ determined that the credibility of a witness is a crucial consideration in accidental disability retirement benefits cases, and that he would not have the ability to ask clarifying questions or develop the record. We conclude the ALJ did not abuse his discretion in making this determination.
The New Jersey Uniform Administrative Procedure Rules do not address videotaped depositions at administrative hearings. N.J.A.C. 1:1-15.8(e), however, is analogous, and states:
Testimony of a witness may be presented by telephone or by video conference call, as prescribed by the Director, if, before the hearing begins, the judge finds there is good cause for permitting the witness to testify by telephone or video conference. In
determining whether good cause exists, the judge shall consider:
1. Whether all parties consent to the taking of testimony by telephone;
2. Whether credibility is an issue;
3. The significance of the witness' testimony;
4. The reason for the request to take testimony by telephone; and
5. Any other relevant factor.
Petitioner relies on N.J.A.C. 1:1-1.3(a), which states that "[i]n the absence of a rule, a judge may proceed in accordance with the New Jersey Court Rules, provided the rules are compatible with these purposes." Petitioner then points to Rule 4:14-9(e), which permits a videotaped deposition to "be used at trial in lieu of testimony whether or not such witness is available to testify . . . ."
[(emphasis added).]
The ALJ did not abuse his discretion in denying petitioner's motion. The ALJ properly noted that in disability cases, where an assessment of the credibility of competing experts is of crucial importance, admission of the videotaped deposition testimony would prevent the ALJ from properly developing the record by asking clarifying questions. See N.J.A.C. 1:1-14.6(o) (stating that "[t]he judge may require any party at any time to clarify confusion or gaps in the proofs . . . [and] may question any witness to further develop the record"). The ALJ also allowed petitioner the opportunity to obtain an expert willing to testify in the matter. Given that the ALJ has the ability to control the proceedings and "limit the presentation of oral or documentary evidence," N.J.A.C. 1:1-14.6(k), he was within his discretion to deny petitioner's motion and require petitioner to have his expert testify at the proceedings.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION