BELINDA DODSON VS. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2336-15T2
BELINDA DODSON,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES OF THE PUBLIC
EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent.
_________________________________
Argued May 23, 2017 - Decided June 23, 2017
Before Judges Koblitz and Mayer.
On appeal from the Board of Trustees of the
Public Employees' Retirement System,
Department of Treasury.
Samuel M. Gaylord, argued the cause for
appellant (Gaylord Popp, LLC, attorneys; Mr.
Gaylord, of counsel and on the brief).
Nonee Lee Wagner, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Wagner, on the brief).
PER CURIAM
Appellant Belinda Dodson appeals from a final agency decision
of the Board of Trustees of the Public Employees' Retirement System
(Board) denying her request for accidental disability retirement
benefits. We affirm.
Dodson worked as a juvenile detention officer at the Camden
County Youth Center (Center). On May 24, 2010, Dodson was injured
during a fight at the Center. She went to a local hospital for
treatment, but was not admitted.1
In 2010, Dodson was treated for her injury by Dr. Brahman
Levy. Dodson also received orthopedic care from Drs. Steven
Kirshner, Steven Valentino and Youssef Josephson and pain
management from Dr. Adam Sackstein. Dodson went to physical
therapy three times per week for two consecutive weeks. She also
received epidural injections in her lower back.
Dodson applied for accidental disability retirement benefits
alleging the 2010 incident caused a permanent and disabling injury
to her back that left her unable to perform her job. The Board
sent Dodson for an independent medical evaluation (IME) with Dr.
Bernard Weiss. Dr. Weiss concluded that Dodson was totally and
1
In 2003, Dodson was injured during a fight at the Center resulting
in a herniated disc in her lower back. Dodson received treatment
for the 2003 injury, and returned to her job at the Center on a
full-duty basis.
2 A-2336-15T2
permanently disabled due to an aggravation of a pre-existing
degenerative condition in her spine, not as a result of a
traumatically induced event on May 24, 2010.
The Board awarded ordinary disability retirement benefits to
Dodson, but denied her request for accidental disability
retirement benefits. Dodson requested a hearing, and the Board
referred the matter to the Office of Administrative Law (OAL).
Dr. Arnold Berman was appointed to serve as the Board's IME
doctor prior to Dodson's OAL hearing, replacing Dr. Weiss. To
prepare for the hearing, Dr. Berman re-examined Dodson. He found
Dodson did not suffer a permanent injury.
Based upon Dr. Berman's re-evaluation of Dodson, the Board
revisited its original decision regarding disability retirement
benefits. The Board again denied Dodson's request for accidental
disability retirement benefits. The Board found Dodson's injury
was not directly related to the 2010 incident, and Dodson was not
permanently disabled from performance of her job function and
assigned duties. However, the Board allowed Dodson to continue
receiving ordinary disability retirement benefits until the
conclusion of her appeal or her return to work at the Center.
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A hearing was held before an administrative law judge (ALJ).
The ALJ heard testimony from Dodson, Dr. Barry Fass2 for appellant
and Dr. Berman for the Board.
Based upon the evidence adduced at the hearing, the ALJ
concluded, in a written decision, that Dodson "failed to
demonstrate by a preponderance of the credible evidence that she
is permanently and totally disabled from the performance of her
regular and assigned duties."
The ALJ considered Dodson's subjective complaints of pain in
her lower back, especially when she walked up or down stairs, and
pain radiating down her leg causing numbness in her heel and two
of her toes. The ALJ also reviewed the magnetic resonance imaging
(MRI) film taken four days after the 2010 incident. Based upon
the testimony, the ALJ determined that the 2010 MRI showed long-
standing degenerative disc disease at the L4-L5 and the L5-S1
levels, the same area injured in the 2003 incident. The 2010 MRI
film showed no disc herniation in Dodson's spine, and no new injury
to the L4-L5 level.
The ALJ also considered the doctors' testimony related to
Dodson's discogram taken on December 15, 2010. Dr. Fass and Dr.
2
Dr. Fass was not Dodson's treating doctor. Dr. Fass examined
Dodson for the limited purpose of testifying on her behalf at the
hearing. Dodson had an opportunity to call her treating doctors
to testify at the hearing but elected not to do so.
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Berman disputed the findings on Dodson's discogram. According to
Dr. Fass, Dodson's discogram showed a grade three annular tear at
the L4-L5 level and opined that the 2010 incident aggravated her
2003 back injury at the same level. Dr. Fass also testified that
Dodson had a new lumbar bulge in her spine, in addition to a lumbar
sprain and lumbar nerve damage. Conversely, Dr. Berman opined
that Dodson had no new injuries according to the 2010 imaging
studies and no aggravation of her injury from the 2003 incident.
The ALJ found Dr. Berman's reliance on the 2010 MRI film
rather than the 2010 discogram appropriate given the accuracy and
reliability of an MRI film as compared to the medically
controversial discogram test. Additionally, the ALJ accepted Dr.
Berman's explanation that annular tears, as seen in the discogram,
are often age-related rather that the result of a traumatic injury.
The ALJ further credited Dr. Berman's testimony that if a tear
occurred on May 24, 2010, as claimed by Dr. Fass, one would expect
to see such a finding on the MRI film taken four days later. The
ALJ also accepted Dr. Berman's testimony that Dodson's reflex and
muscle tests were normal upon objective testing and physical
examination. According to Dr. Berman, her complaints of pain on
range of motion and other touch tests reflected Dodson's subjective
statements as to pain, and were nothing more than symptom
magnification. The ALJ concurred with Dr. Berman's medical opinion
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that any injury to Dodson's spine from the 2003 incident had
resolved based upon Dodson's return to work full-time and her
active lifestyle after the 2003 incident.
After considering the evidence, the ALJ concluded that Dodson
"has not established by a preponderance of the evidence that she
is entitled to accident disability retirement pursuant to N.J.S.A.
43:15A-43 due to the fact that her injury is the result of a pre-
existing condition which has clinically resolved." Thus, the ALJ
concluded that Dodson's back injuries in 2003 and 2010 resolved
and that Dodson was not totally and permanently disabled. The ALJ
determined Dodson was not eligible for either ordinary disability
retirement benefits or accidental disability retirement benefits.
The Board adopted the ALJ's decision and denied Dodson's
application for accidental disability retirement benefits.
On appeal, Dodson claims the ALJ applied the wrong legal
standard because she was required to prove only that the 2010
incident was a "substantial contributing cause," and not the direct
cause of her "permanent disability," and thus disqualification on
the basis of a "pre-existing condition" was error. She also claims
there was not sufficient credible evidence in the record to deny
Dodson's application for accidental disability retirement
benefits.
6 A-2336-15T2
Our review of an administrative agency decision is limited.
In re Herrmann, 192 N.J. 19, 27 (2007). We will sustain a Board's
decision "unless there is a clear showing that it is arbitrary,
capricious, or unreasonable, or that it lacks fair support in the
record." Russo v. Bd. of Trustees, Police & Firemen's Ret. Sys.,
206 N.J. 14, 27 (2011) (quoting In re Herrmann, supra, 192 N.J.
at 27-28). We are not bound by an agency's statutory
interpretation or other legal determinations. Ibid.
N.J.S.A. 43:15A-43 governs accidental disability retirement
benefits to a public employee who is a member of the Public
Employees' Retirement System. The statute provides:
A member who has not attained age 65 shall,
upon the application of the head of the
department in which he is employed or upon his
own application or the application of one
acting in his behalf, be retired by the board
of trustees, if said employee 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, on an accidental disability
allowance.
[N.J.S.A. 43:15A-43.]
As the Supreme Court held in Gerba v. Board of Trustees of
the Public Employees' Retirement System, 83 N.J. 174, 186 (1980),
"what is now required by N.J.S.A. 43:15A-43 is a traumatic event
that constitutes the essential significant or the substantial
contributing cause of the resultant disability." Importantly,
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nothing in Gerba altered an applicant's burden to demonstrate a
total and permanent disability in order to receive accidental
disability retirement benefits.
Dodson argues that she met the five part test for accidental
disability retirement benefits established by the Supreme Court
in Richardson v. Board of Trustees, Police and Firemen's Retirement
System, 192 N.J. 189, 212-13 (2007). However, the first prong of
the Richardson test requires an applicant to show that he or she
is totally and permanently disabled. Ibid. If an applicant fails
to meet his or her burden under the first prong of the analysis,
there is no entitlement to accidental disability retirement
benefits.
Here, the ALJ made credibility determinations after listening
to the competing and contradicting medical evidence provided by
Drs. Fass and Berman on the issue of Dodson's permanent and total
disability. We find no error in the Board's deference to the
ALJ's credibility determinations regarding the experts' testimony.
The significance accorded to an expert's opinion is weighed in the
context of the expert's explanation of the foundation for his or
her opinion, and the facts upon which he or she relies to form
that opinion. See State v. Townsend, 186 N.J. 473, 494-95 (2006);
Ocean County v. Landolfo, 132 N.J. Super. 523, 528 (App. Div.
1975). The ALJ determined that Dr. Berman was better trained and
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qualified in his field than Dr. Fass. Moreover, the ALJ concluded
that Dr. Berman's testimony was consistent with the medical
evidence in the record.3 Thus, the ALJ rendered his determination
based upon his finding Dr. Berman to be more credible than Dr.
Fass.
Because the ALJ determined Dodson was not disabled, the
"direct result" or the proximate cause prong of the Richardson
analysis was unnecessary. The record in this case contains
sufficient credible evidence to support the Board's conclusion
that Dodson was not disabled. Because we affirm the Board's
decision that Dodson failed to prove she was totally and
permanently disabled, we need not address the issue of causation.
Affirmed.
3
Drs. Kirshner, Valentino and Weiss did not testify during the
hearing. The reports and opinions of non-testifying doctors are
hearsay. See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 599
(1988) (while hearsay is admissible in administrative proceedings,
courts require legal and competent evidence in the record to
support diagnoses).
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