NATHAN GIBSON VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM(BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-2789-14T2
NATHAN GIBSON,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
_____________________________
Submitted February 14, 2017 – Decided July 19, 2017
Before Judges Koblitz and Sumners.
On appeal from the Board of Trustees, Police
and Firemen's Retirement System, PFRS No. 3-81172.
Feeley & La Rocca, L.L.C. and The Blanco Law
Firm, L.L.C., attorneys for appellant
(Pablo N. Blanco, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of counsel;
Amy Chung, Deputy Attorney General, on the brief).
PER CURIAM
Nathan Gibson appeals from the January 13, 2015 final decision
of the Board of Trustees of the Police and Firemen's Retirement
System (Board), which denied his application for accidental
disability retirement benefits, N.J.S.A 43:16A-7. We affirm.
We glean the following facts and procedural history from the
record. Gibson began his employment with Lacey Township Police
Department as a patrol officer in 1996. In 2006, he suffered neck
pain from his uniform and vest, and was prescribed a muscle
relaxant. In 2008, Gibson was treated for neck stiffness,
headaches, and swelling on the right side of his face. He was
prescribed a muscle relaxant for a couple of months, and his
ailments resolved themselves.
In May 2009, Gibson was assigned to the position of Traffic
Safety Coordinator, responsible for handling serious and fatal
motor vehicle accidents, reviewing motor vehicle accident reports,
and overseeing extra patrols for driving while intoxicated
violations. On September 8, 2009, Gibson felt pain in his left
shoulder when he attempted to unhook and lift a large electronic
traffic warning sign from a trailer to place it on the roadside.
A short time later, he experienced pain from the left side of his
neck, down his back, and into his left arm and fingers. He did
not report the incident until September 29. Approximately a year
later, after his complaints were not resolved through muscle
relaxants, physical therapy, and epidural injections, Gibson had
disc fusion surgery at C5-6 and C6-7 and plating insertion.
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The Board denied Gibson's subsequent application for
accidental disability retirement benefits. Gibson appealed the
ruling, and a contested hearing was held before an Administrative
Law Judge (ALJ).
Gibson testified that he still suffered from radiating pain
down his neck through his left arm, and numbness in his left hand
since the 2009 incident. He contended that he is no longer capable
of performing his duties as a police officer. In particular, he
cannot qualify to use his service revolver, and is unable to
restrain and arrest a criminal suspect. Moreover, he stated that
most of his workday is spent driving a police vehicle, which causes
him pain.
Gibson presented the expert testimony of Dr. David Weiss,
D.O., who performed a physical examination of Gibson, and reviewed
Gibson's job description and medical records following the 2009
incident. Dr. Weiss opined that Gibson was totally and permanently
disabled from his duties as a police officer, substantially due
to injuries sustained from the 2009 incident, and to a lesser
extent, an aggravation of pre-existing age-related disc
degeneration. Although Dr. Weiss did not review any medical
records related to Gibson's pre-2009 complaints of pain, he
believed that Gibson's current ailments were not related to issues
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he experienced prior to the 2009 incident because they had resolved
by then.
Dr. Gregory S. Maslow gave expert testimony for the State.
He opined that Gibson could return to full duty as a police officer
because there was no clinical evidence of a current cervical or
lumbar injury to warrant total and permanent disability. Dr.
Maslow acknowledged that Gibson suffered a cervical sprain with
cervical radiculitis from the 2009 incident, but testified that
Gibson's present complaints were due to degenerative changes of
the cervical spine over time, not from the incident. The doctor
found support in x-ray images from 2006 that revealed lower
cervical degeneration and neuroforaminal narrowing, as well as
medical records from 2007 that noted degenerative joint disease.
In his Initial Decision, the ALJ ruled that, in accordance
with Richardson v. Board of Trustees, Police and Firemen's Ret.
Sys., 192 N.J. 189, 212-13 (2007), Gibson proved the 2009 incident
was undesigned and unexpected because:
It is uncommon and unanticipated that a sign
trailer would pivot and move toward [Gibson],
causing his body to twist and pushing his body
up against a car, as occurred here. The
movement of the trailer was not at all within
[Gibson's] control and [he] was not willfully
negligent. [His] injuries are a consequence
that is extraordinary or unusual when placing
a sign trailer in position.
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The ALJ, however, found that Gibson did not meet his burden
of proof that he was totally and permanently disabled from working
as a police officer as a direct result of the 2009 incident. The
ALJ found that, although both experts were credible, he found Dr.
Maslow's testimony more convincing. The ALJ reasoned that Dr.
Maslow stated his examination of Gibson revealed "normal results
of objective reflex and strength testing[,]" and he "did not find
any objective atrophy and explained that any spasms should have
subsided after six months[,]" from the time of Gibson's spinal
surgery. On the other hand, Dr. Weiss's opinion was based
predominately on subjective tests, and thus, not as persuasive.
The ALJ concluded that Gibson's degenerative disc disease was
relieved through corrective surgery, and his current neck
discomfort does not make him totally and permanently disabled from
performing his police officer's duties.
Additionally, the ALJ found that Gibson failed to prove his
injuries were not due to pre-existing degenerative disease that
was accelerated or aggravated by his regular work duties. He
noted that both experts recognized Gibson was suffering from
cervical degenerative changes prior to the 2009 incident, but
found Dr. Maslow's testimony was more convincing as to the cause
of Gibson's disability. The ALJ discredited Dr. Weiss's opinion
that Gibson's current issues were not related to the pre-2009
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complaints because Dr. Weiss did not review the medical records
pertaining to those complaints. Thus, Dr. Maslow's reliance upon
those records to form his opinion that Gibson was suffering from
degenerative disc disease, unrelated to the 2009 incident, was
more persuasive.
On January 13, 2015, the Board adopted the ALJ's
recommendation denying Gibson's application for accidental
disability retirement benefits.1
On appeal, Gibson contends that the ALJ and Board erred in
denying him accidental disability benefits by requiring him to
prove that the 2009 incident was the sole cause of his disability.
He argues that he only needed to prove that the 2009 incident
caused his disability in combination with an underlying
degenerative disease. He asserts that he is totally and
permanently disabled from performing the duties of a police officer
based upon his medical records, his testimony and that of Dr.
Weiss. We disagree.
Our scope of "review of administrative agency action is
limited. 'An administrative agency's final quasi-judicial
1
In addition, the Board's decision "rejected the [ALJ's]
unsupported finding that [] Gibson's injury is a consequence that
is extraordinary or unusual in common experience[,]" and found
"that there was an unintended external happening, and the [2009
incident] is considered undesigned and unexpected."
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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.'" Russo v. Bd. of Trs., Police &
Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re
Herrmann, 192 N.J. 19, 27-28 (2007)).
"Generally, courts afford substantial deference to an
agency's interpretation of a statute that the agency is charged
with enforcing." Richardson, supra, 192 N.J. at 196. "Such
deference has been specifically extended to state agencies that
administer pension statutes[,]" because "'a state agency brings
experience and specialized knowledge to its task of administering
and regulating a legislative enactment within its field of
expertise.'" Piatt v. Police & Firemen's Ret. Sys., 443 N.J.
Super. 80, 99 (App. Div. 2015) (quoting In re Election Law Enf't
Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)).
In order to secure accidental disability retirement benefits,
an applicant must prove each of the following elements:
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
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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.
[Russo, supra, 206 N.J. at 30 (quoting
Richardson, supra, 192 N.J. at 212-13).]
Applying these principles here, we affirm substantially for
the reasons stated in the ALJ's Initial Decision, which was adopted
by the Board, that Gibson was not eligible for accidental
disability retirement benefits. It was determined that Gibson was
not totally and permanently disabled from performing the duties
of a police officer based upon a credibility assessment of the
parties' expert testimony. Further, although not necessary to the
decision given the determination that Gibson was not sufficiently
disabled, the evidence supports the finding that Gibson's
condition was due to a pre-existing degenerative disc disease
alone and not from the 2009 work-related incident. We discern no
basis for disturbing the Board's decision.
Affirmed.
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