MICHAEL RUSSO v. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0591-20
MICHAEL RUSSO,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
Submitted January 11, 2022 – Decided March 4, 2022
Before Judges Currier and Smith.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of
Treasury, PERS No. x-xxx4954.
William J. Courtney, attorney for appellant (William J.
Courtney and Laurie J. Bice, on the briefs).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Victoria G. Nilsson, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant fell down several stairs and alleged he sustained an injury to his
neck while working as the operations undersheriff in the Hunterdon County
Sheriff's Office in November 2010. His application for accidental disability
retirement benefits was denied by the Board of Trustees of the Public
Employees' Retirement System (Board). After appeal and transfer to the Office
of Administrative Law for a hearing, the Administrative Law Judge (ALJ) found
appellant failed to demonstrate "he was totally and permanently physically
disabled and incapable of performing the general duties of an operations
undersheriff." The Board adopted the ALJ's decision. We affirm.
The issues presented by appellant for determination by the ALJ were: "(1)
whether [appellant] is totally and permanently disabled from the performance of
his duties as an undersheriff; and (2) whether his alleged disability directly
resulted from the November 24, 2010[] incident."
During the hearing in 2019, appellant testified he worked as an
undersheriff for four and a half years providing security to the Justice Center.
His duties included "training [of other officers and with firearms], transport[ing]
prisoners, [and] sometimes working security in a courtroom or at a metal
detector." Although appellant was cleared to return to work on light duty in
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December 2010 after his injury, he stated he was unable to perform any of his
required job duties. Because the current sheriff was retiring at the end of her
term in December 2010, appellant stated he sat "on [his] desk at the computer.
The end of the term was near, and we just waited it out [un]til the end of the
year." The then-sheriff testified that when appellant returned to work for the
two weeks until her term ended, he was unable to perform his duties. The new
sheriff did not retain appellant but hired another man as the operations
undersheriff.
Appellant went to the emergency room two days after his fall. After an
MRI was performed, he was released and cleared to return to work. In the years
since his fall, appellant has treated with a number of health professionals
including chiropractors, orthopedists, neurologists, and physical therapists.
During the hearing, appellant stated he continued to have pain in his nec k
and had a "low grade headache all the time." At the time, he was sixty-three
years old and working at a security job.
Dr. Steven Nehmer, an orthopedic surgeon, testified on behalf of
appellant. He examined appellant in December 2017. In preparing his report,
he reviewed multiple medical records and an MRI of the cervical spine
performed in July 2013. He testified that the MRI "showed multiple disc
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herniations in the neck, specifically at C3/4, C4/5, C5/6, and C7/T1. It showed
a bulging disc at C6/7 and there were age-appropriate degenerative changes."
Dr. Nehmer concluded the diagnoses were causally related to appellant's fall at
work in 2010, his neck injury was permanent, and he was unable to perform the
duties of an undersheriff.
Dr. Nehmer stated appellant mentioned he was in a car accident in either
1987 or 1989 in which he hurt his neck but had recovered from that injury and
had no problems with his neck before the fall in 2010. Dr. Nehmer did not
review the 2010 MRI done in the emergency room two days after appellant's
fall.
The Board presented Dr. Richard Rosa, also an orthopedic surgeon, as its
medical witness. Dr. Rosa examined appellant in May 2018. Appellant reported
to Dr. Rosa that he had neck pain that radiated to his left upper arm and shoulder
and decreased motion of the neck. Appellant also stated he had back pain that
pre-existed his fall at work.
Dr. Rosa reviewed a copy of the 2013 MRI report and noted the scan
revealed age-appropriate degeneration of the spine—arthritic changes common
to people in their 30's and older. He stated: "It would be extremely rare not to
see someone say in their . . . 50's or 60's that didn't have [arthritic changes in the
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spine]." He opined that the arthritis in the neck had developed over twenty to
twenty-five years.
Dr. Rosa described his examination of appellant as "unremarkable" and
concluded that "based on my review of the medical record and my evaluation
that day, there was . . . no objective evidence for total and permanent disability
in regard to the duties of the [appellant's] job."
The ALJ affirmed the Board's denial of accidental disability retirement
benefits. The ALJ analyzed the factual record in detail and weighed the
testimony of expert witnesses Dr. Nehmer and Dr. Rosa. The ALJ stated:
[Appellant] offered the testimony and reports of Dr.
Nehmer in support of his accidental disability claim.
Dr. Nehmer did not treat or otherwise examine
[appellant] at the time of the 2010 fall. Nehmer did not
become involved in the case until approximately 2018.
In forming his report and ultimate conclusion, Nehmer
relied heavily on an MRI taken on July 16, 2013. This
MRI was taken nearly three years after the date of
[appellant's] work-related injury. Further, [appellant],
himself testified that he did not seek immediate medical
assistance at the time of the injury because it was the
day before Thanksgiving. He testified that when he did
seek medical care at a local emergency room on the
Friday after Thanksgiving, he was released within a few
hours. He references an MRI possibly being taken at
the emergency room in 2010, but no corresponding
MRI report was reviewed by Nehmer or available at the
hearing. I, therefore, [conclude] that [appellant] has
failed to prove by a preponderance of the credible
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evidence that any disability is attributable to his 2010
work-related injury.
I further [conclude] that [appellant] has failed to prove
by a preponderance of the credible evidence that he is
totally and permanently disabled from the performance
of his duties as an undersheriff. Dr. Nehmer examined
[appellant] in anticipation of the hearing and testified
to several disk herniations. He reviewed the job
description of operations undersheriff and opined that
[appellant] was not capable of performing the physical
tasks of the job. However, Nehmer's opinion was based
on an MRI taken approximately three years after the
injury and a physical examination that occurred
approximately eight years after the injury. I, therefore,
[conclude] that Nehmer's opinion is not entirely
credible based on this great lapse of time.
The Board subsequently adopted the ALJ's decision affirming the Board's denial
of appellant's application for accidental disability retirement benefits.
Our review of an administrative agency action is limited. Russo v. Bd. of
Trs., Police & Fireman's Ret. Sys., 206 N.J. 14, 27 (2011). "We recognize that
agencies have 'expertise and superior knowledge . . . in their specialized fields.'"
Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 N.J. 215, 223 (2009)
(alteration in original) (quoting In re License Issued to Zahl, 186 N.J. 341, 353
(2006)). Therefore, we will not "substitute [our] own judgment for the agency's,
even though [we] 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)).
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For those reasons, "an appellate court ordinarily should not disturb an
administrative agency's determinations or findings unless there is a clear
showing that (1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was not supported by
substantial evidence" in the record as a whole. In re Virtua-W. Jersey Hosp.
Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "The burden of
demonstrating that the agency's action was arbitrary, capricious or unreasonable
rests upon the person challenging the administrative action." In re Arenas, 385
N.J. Super. 440, 443-44 (App. Div. 2006) (citations omitted).
The factual "findings of an ALJ 'are considered binding on appeal, when
supported by adequate, substantial and credible evidence.'" Oceanside Charter
Sch. v. N.J. State Dep't of Educ., 418 N.J. Super. 1, 9 (App. Div. 2011) (quoting
In re Taylor, 158 N.J. 644, 656 (1999)). The review of an agency interpretation
of law is de novo. Russo, 206 N.J. at 27.
Appellant contends on appeal that the Board's decision to deny his
accidental retirement benefits application was arbitrary, capricious, and not
supported by the evidence. We disagree.
A member of the Public Employees' Retirement System is entitled to
accidental disability retirement benefits under N.J.S.A. 43:15A-43 if the
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member "is permanently and totally disabled as a direct result of a traumatic
event occurring during and as a result of the performance of his regular or
assigned duties . . . ." Our Supreme Court has stated that to receive accidental
disability benefits, a claimant 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; and
5. that the member is mentally or physically
incapacitated from performing his usual or any other
duty.
[Mount v. Bd. of Trs., Police and Fireman's Ret. Sys.,
233 N.J. 402, 421 (2018) (quoting Richardson v. Bd. of
Trs., Police and Fireman's Ret. Sys., 192 N.J. 189, 212-
13 (2007)).]
In considering an application for accidental disability benefits, "[t]he
polestar of the inquiry is whether, during the regular performance of his job, an
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unexpected happening, not the result of preexisting disease alone or in
combination with the work, has occurred and directly resulted in the permanent
and total disability of the member." Richardson, 192 N.J. at 214. A claimant
has the burden of proving "direct result" by competent medical testimony. Id.
at 194-95.
After properly considering both experts' testimony and opinions, the ALJ
found appellant failed to meet his burden as to causation to qualify for accidental
disability retirement benefits under the stringent requirements of Richardson and
Mount. Dr. Nehmer relied on an MRI performed three years after the accident
to support his opinion of causality. The MRI revealed multiple areas of
degeneration, described by both experts as "age-appropriate" arthritic changes.
Dr. Nehmer did not review the MRI taken at the emergency room two days after
appellant's fall. We are satisfied the ALJ's decision that appellant did not meet
his burden as to causality and the Board's subsequent adoption of it were based
on the substantial, credible evidence in the record.
Affirmed.
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