JOSE TORRES VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-2388-15T3
JOSE TORRES,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
_______________________________
Submitted September 12, 2017 – Decided August 3, 2018
Before Judges Yannotti and Leone.
On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 3-10-044925.
Michael J. Hanus, attorney for appellant
(Thomas De Seno, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Christina Levecchia, Deputy Attorney General,
on the brief).
PER CURIAM
Petitioner Jose Torres appeals from the January 11, 2016
decision of the Board of Trustees (Board) of the Police and
Firemen's Retirement System (PFRS). The Board found Torres was
qualified for ordinary disability benefits, but was not qualified
for accidental disability benefits because his disability was not
the direct result of the traumatic event. We affirm.
I.
Except as noted, the following facts were found by the
Administrative Law Judge (ALJ) in her October 26, 2016 decision
and adopted by the Board. Torres was born in 1958. In 1997, he
became a corrections officer for the Department of Corrections
(DOC). He was later promoted to senior corrections officer (SCO).
On March 17, 2011, Torres was moving two inmates from a prison
to a youth correctional facility. Once at the facility, Torres
removed the handcuffs from the first inmate. While Torres was
removing the handcuffs from the second inmate, the first inmate
began punching the second inmate. As Torres and another
corrections officer struggled to control the first inmate, the
three fell together to the floor. With the assistance of other
officers, the two officers got control of the first inmate.
Torres immediately felt pain in his groin when he stood up.
In his report he wrote and signed that day, Torres stated: "In the
process of subduing the inmate I pulled something in my left leg."
In the portion of a State report he filled out and signed that
day, Torres wrote that when he "attempted to subdue inmate, I
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pulled something in my left leg." In the section asking him to
describe the injury or illness and part of the body affected,
Torres wrote "pulled my left leg groin area." In the DOC
supervisor's accident/illness investigation report that day, in
the portion asking him to describe in detail the injury or illness
as reported by the employee, his supervisor wrote that "Torres
injured his left groin area." When asked to describe Torres's
physical appearance, his supervisor wrote: "Injured his groin area
(left side)." Torres testified the supervisor's report reflected
what Torres was telling him.
After Torres was transported to the hospital, he complained
of pain in his groin and pain or soreness in his neck and shoulder
area. The Board cited Torres's testimony that "the groin area was
the one that was bothering [him] most at that time." The Board
also cited Torres's testimony that, when asked if he "ever ha[d]
a pain or stiffness in [his] neck before this incident," he
replied: "[s]oreness and all that stuff."
Torres saw workers' compensation doctors, and complained
about his neck area. In April 2011, he received an MRI, which
showed he was suffering from cervical compression. In November
2011, he had surgery to his cervical spine which fused three discs,
added a bone graft, and attached a titanium cage around the discs
to support them. He was never able to return to work.
3 A-2388-15T3
Torres applied for accidental disability retirement benefits.
The Board determined Torres was totally and permanently disabled
from the performance of his regular and assigned job duties.
However, the Board also found his disability was not the direct
result of a traumatic event, but was the result of a pre-existing
disease. Consequently, the Board granted him ordinary disability
benefits but denied accidental disability benefits.
Torres sought a hearing. The Board transferred the matter
to the Office of Administrative Law, and an ALJ held hearings. On
October 26, 2015, the ALJ found that Torres had carried his burden,
and concluded he should be awarded accidental disability
retirement benefits.
The Board reviewed the ALJ's recommended decision. On January
11, 2016, the Board modified the ALJ's findings of fact, and
rejected the ALJ's determination that Torres was entitled to
accidental disability benefits. Torres appeals.
II.
We must hew to our standard of review. Judicial "review of
administrative agency action is limited. '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.'" Russo
v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27
4 A-2388-15T3
(2011) (citations omitted). The Board and similar "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) (citation omitted). "An appellate court
affords a 'strong presumption of reasonableness' to an
administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014)
(citation omitted). "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) (citation omitted).
III.
The Board disagreed with and modified some of the ALJ's
factual findings. As a result, we must consider the Board's
standard of review over the ALJ's decision under the Administrative
Procedures Act, N.J.S.A. 52:14B-1 to -15. Union v. Police &
Firemen's Ret. Sys., 170 N.J. Super. 411, 414 (App. Div. 1979);
N.J.A.C. 17:4-1.7. N.J.S.A. 52:14B-10(c) provides:
In reviewing the decision of an administrative
law judge, the agency head may reject or
modify findings of fact, conclusions of law
or interpretations of agency policy in the
decision, but shall state clearly the reasons
for doing so. The agency head may not reject
or modify any findings of fact as to issues
of credibility of lay witness testimony unless
it is first determined from a review of the
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record that the findings are arbitrary,
capricious or unreasonable or are not
supported by sufficient, competent, and
credible evidence in the record. In rejecting
or modifying any findings of fact, the agency
head shall state with particularity the
reasons for rejecting the findings and shall
make new or modified findings supported by
sufficient, competent, and credible evidence
in the record.
It is not contended that the Board rejected or modified the
ALJ's findings regarding the credibility of the only lay witness,
Torres. Rather, the Board simply cited and credited parts of
Torres's testimony the ALJ had not cited.
Thus, the Board need only "state clearly [its] reasons for"
rejecting or modifying the ALJ's "findings of fact, conclusions
of law or interpretations of agency policy," "state with
particularity the reasons for rejecting" any findings of fact, and
"make new or modified findings supported by sufficient, competent,
and credible evidence in the record." Ibid.
The ALJ found "that SCO Torres was not experiencing any kind
of symptoms before the fall occurred." The ALJ reached that
finding "based on the credible testimony of SCO Torres and the
lack of any medical documentation to support the existence of any
symptoms before the accident," and because "[h]e was living an
active life, which included running and gym work, along with the
physical demands of corrections work." The Board explained it
6 A-2388-15T3
rejected the ALJ's finding because Torres testified he had
"[s]oreness and all that stuff" in his neck prior to the incident.
Thus, the Board offered an adequate explanation based on
sufficient, competent, and credible evidence.
Torres notes there was no medical evidence the soreness in
his neck before the incident was more than the simple aches that
come with a physical job. However, the Board could draw a
reasonable inference that the "[s]oreness and all that stuff"
Torres suffered in his neck was the result of Torres's significant
degenerative cervical spinal stenosis, given the substantial post-
incident medical evidence of that pre-existing condition.
The ALJ also heard the testimony of Torres's orthopedics
expert, Dr. David Weiss, and the Board's expert in orthopedics
surgery, Dr. Arnold Berman. The Board found both experts agreed
that before the incident, Torres already had multi-level
degenerative disc disease in his neck and spinal stenosis, meaning
compression of the spinal cord, which Dr. Weiss termed significant
and Dr. Berman found was very advanced. The Board also found both
experts agreed Torres did not injure his spine or his spinal canal
during the incident, but just sustained a "strain and sprain" of
his neck, a "soft-tissue, muscular injury." Torres does not
challenge those findings.
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Instead, Torres cites Dr. Weiss's testimony that Torres
"developed a post-traumatic myelopathy," meaning a softening of
the spinal cord. However, it was undisputed that the first post-
incident MRI did not show any evidence of myelopathy, and that he
did not develop myelopathy until a few months later. Dr. Weiss
testified that Torres could have developed myelopathy without the
trauma, but that the timing of its occurrence after the incident
led him to conclude it was related to the incident.
In adopting Dr. Weiss's conclusion, the ALJ cited Dr. Weiss's
reasoning that Torres was "asymptomatic" and he "never had a
problem or a diagnosis of a myelopathy before the injury. So as
such, the myelopathy follows the direct surgery" and is "directly
attributable to that." The ALJ stressed that "Torres had no
symptoms," and that "the absence of symptoms at the time of the
incident, the absence of myelopathy at the time of the accident,
and the fact that it took the significant problems some time to
develop after the accident all count as proof that the serious
problems were caused by" the incident. However, as the Board
found, Torres's testimony that he had had "[s]oreness and all that
stuff" in his neck showed he was not asymptomatic before the
incident, undermining Weiss's testimony and the ALJ's findings.
Dr. Berman testified that myelopathy would "almost never" be
caused by an acute injury, that it was caused by the degenerative
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spinal stenosis, and that surgery was needed because of the
structural changes to Torres's spine pre-dating the incident. Dr.
Berman stated it was a "most fortunate occurrence that he had this
soft tissue injury and they discovered this severe problem . . .
because otherwise it might have taken him years longer before he
had the operation and he would just have put up with it."
The ALJ found that Dr. Berman contradicted himself in that
statement, and "therefore" that degeneration was likely to be slow
absent the incident. The Board rejected those findings. The
Board cited the experts' agreement that "Torres had significant
or advanced pre-existing degenerative spinal stenosis or
compression of the spinal cord, and [that] the compression was the
reason for Torres's surgery." The Board also cited "Dr. Weiss's
own testimony that Torres's surgical procedure is performed to
preserve function rather than restore function." The Board added
that "the soft tissue injury led to the discovery of the advanced
or significant degenerative process of compression of Torres's
spine and the surgery was performed to preserve the level of
functioning" Torres had at the time of surgery. That was a
sufficient explanation for rejecting the ALJ's findings.
Torres argues Dr. Berman could not explain why Torres never
had a complaint in any medical record before the incident. To the
contrary, Berman believed that Torres had symptoms but was a "tough
9 A-2388-15T3
guy" who put up with them without seeking medical help. Torres's
testimony was consistent with Berman's view. Berman opined Torres
did not know how significant his spinal stenosis was or else "he
would have been taken care of a long time ago."
Torres contends Dr. Berman "truly contradicted himself" by
testifying the myelopathy pre-existed the incident. However,
Berman testified he viewed spinal stenosis and myelopathy as "the
same thing" in this case because they both involved pressure on
and compression of the spinal cord. Berman ultimately clarified
that the stenosis was the cause, the myelopathy was the result,
and the "cervical spine symptoms" pre-existed the incident. In
any event, the Board found the spinal stenosis pre-existed the
incident, and the myelopathy was diagnosed by the surgeon seven
months later.
Thus, the Board's detailed decision clearly stated with
particularity its reasons for rejecting or modifying the ALJ's
findings of fact, and its modified findings were supported by
sufficient, competent, and credible evidence in the record.
IV.
Based on its modified factual findings, the Board rejected
the ALJ's legal analysis and conclusion that Torres was eligible
for accidental disability retirement benefits. Courts "apply de
novo review to an agency's interpretation of a statute or case
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law." Russo, 206 N.J. at 27. However, "courts afford substantial
deference to an agency's interpretation of a statute that the
agency is charged with enforcing." Richardson v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). "'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."'" Thompson v. Bd. of Trs., Teachers' Pension & Annuity
Fund, 449 N.J. Super. 478, 483-84 (App. Div. 2017) (citation
omitted), aff'd o.b., __ N.J. __ (2018).
"[A]n accidental disability retirement entitles a member to
receive a higher level of benefits than those provided under an
ordinary disability retirement." Patterson v. Bd. of Trs., State
Police Ret. Sys., 194 N.J. 29, 43 (2008). A PFRS "member can
qualify for ordinary disability benefits if he is disabled for any
reason; the disability need not have a work connection." Russo,
206 N.J. at 28. By contrast, a PFRS member is not eligible to "be
retired on an accidental disability retirement allowance" unless
"the 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." N.J.S.A. 43:16A-
7(1).
11 A-2388-15T3
In Richardson, our Supreme Court found that "the Legislature
intended in adopting the language of N.J.S.A. 43:16A-7[(1)] to
excise disabilities that result from pre-existing disease alone
or in combination with work effort from the sweep of the accidental
disability statutes." 192 N.J. at 192. Thus, the Court held
that, to obtain accidental disability benefits, a person 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.
[Id. at 212-13.]
The only disputed prerequisite here is whether Torres was
permanently and totally disabled "as a direct result of a traumatic
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event that is . . . caused by a circumstance external to the member
(not the result of pre-existing disease that is aggravated or
accelerated by the work)." Ibid. Torres was required to prove
that his disability is "a direct result of [the] traumatic event"
and "is not the result of pre-existing disease alone or in
combination with work effort." Id. at 212.
The facts in Richardson involved a disability caused solely
by a traumatic event. "While performing the regular tasks of his
job as a corrections officer, subduing an inmate, Richardson was
thrown to the floor and hyperextended his wrist. As a direct
result, he became permanently and totally disabled." Id. at 214.
"[A]n MRI revealed a complete tear of the ligament. Surgery to
repair the ligament was unsuccessful," and Richardson was
disabled. Id. at 193.
Here, by contrast, subduing the inmate only caused Torres a
groin injury and a sprain and strain of his neck, soft-tissue
injuries which soon healed. Richardson requires that an applicant
for accidental disability benefits meet "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." Id. at 195; see Thompson, 449 N.J. Super. at 487.
13 A-2388-15T3
The Board found medical tests given during the treatment for
those temporary injuries revealed that Torres had a pre-existing
degenerative disease, spinal stenosis, which had given him
soreness and other problems with his neck before the incident, and
which degenerated further into myelopathy months after the
incident. However, revelation is not causation. A "member who
has experienced a qualifying traumatic event must prove that the
event, in fact, caused him to be permanently and totally disabled."
Russo, 206 N.J. at 32.
The ALJ cited examples of traumatic and non-traumatic events
given in Richardson:
[1] a police officer who has a heart attack
while chasing a suspect has not experienced a
traumatic event. In that case, the work
effort, alone or in combination with pre-
existing disease, was the cause of the injury.
[2] However, the same police officer,
permanently and totally disabled during the
chase because of a fall, has suffered a
traumatic event. [3] Similarly, the gym
teacher who develops arthritis from the
repetitive effects of his work over the years
has not suffered a traumatic event. His
disability is the result of degenerative
disease and is not related to an event that
is identifiable as to time and place. [4] On
the contrary, the same gym teacher who trips
over a riser and is injured has satisfied the
standard.
[Richardson, 192 N.J. at 213 (numeration
added).]
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Torres's case poses a different situation. Unlike the first
and third examples, Torres experienced a traumatic event. Unlike
the second and fourth examples, Torres was not "permanently and
totally disabled . . . because of a fall." Ibid. Rather, the
Board found treatment for the fall revealed his degenerative
disease, and "[h]is disability is the result of [the] degenerative
disease," making Torres's situation more akin to the first and
third examples. Ibid.
The ALJ also cited pre-Richardson cases, Cattani v. Bd. of
Trs., Police & Firemen's Ret. Sys., 69 N.J. 578 (1976), Gerba v.
Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 181 (1980),
and Petrucelli v. Bd. of Trs., Pub. Employees' Ret. Sys., 211 N.J.
Super. 280 (App. Div. 1986). In Cattani, the Court observed that
"a basis for an accidental disability pension would exist if it
were shown that the disability directly resulted from the combined
effect of a traumatic event and a preexisting disease." 69 N.J.
at 586. The Court molded that observation into a test in Gerba:
This observation was intended simply to
underscore the point that an 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
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sufficient to satisfy the statutory standard
of an accidental disability even though it
acts in combination with an underlying
physical disease.
[83 N.J. at 187 (emphasis added).]
However, the ALJ did not find that the incident was "the
essential significant or substantial contributing cause of the
disability." Ibid. Instead, the ALJ stressed the temporal
sequence: "One day, SCO Torres was living an active life and
working; the next day, the accident occurred, and seven months
later, he required complex surgery." However, "[t]he fact that
total disability followed the muscle strain chronologically does
not necessarily mean that it was 'as a result' thereof. To hold
otherwise would be to adopt the false logic of 'Post hoc, ergo
propter hoc.'" Schulman v. Male, 70 N.J. Super. 234, 240 (App.
Div. 1961); see Black's Law Dictionary 1285 (9th ed. 2009)
(translating "post hoc, propter hoc" as "after this, therefore
because of this," and defining it as "the fallacy of assuming
causality from temporal sequence"). The Board properly rejected
this "incorrect analysis."
The ALJ relied primarily on Petrucelli. After Petrucelli
fell down a stairwell, he had disabling back pain. 211 N.J. Super.
at 283, 285. His "quiescent, non-symptomatic arthritic and
structural changes" in his back "were activated into painful
16 A-2388-15T3
symptomatology as a result of the severe fall." Id. at 284-85.
We found the fall satisfied Gerba's "essential significant or
substantial contributing cause" standard. Id. at 287-89. We
pointed out that "[a]ll the doctors agreed that the traumatic
event . . . initiated the pain." Id. at 284-85. We stressed that
his pre-existing condition was "quiescent," "asymptomatic" and
"nonsymptomatic." Id. at 284-85, 288-89. We repeatedly emphasized
that "[t]he doctors all agreed that Petrucelli's past medical
history was completely negative for any back problems. There is
not a shred of a suggestion in the record that he had had back
pain or back symptoms of any kind before the accident." Id. at
284-85.
The ALJ asserted "[l]ike Petrucelli, SCO Torres was
nonsymptomatic." As a result, the ALJ concluded that "the
similarity of the facts to those in Petrucelli compels a conclusion
that the accident was the substantial, significant cause of the
disability, such that [Torres] has demonstrated his eligibility
for a disability retirement."
However, the Board found the "[s]oreness and all that stuff"
Torres suffered in his neck before the incident was the result of
his degenerative cervical spinal stenosis. Therefore, unlike
Petrucelli, Torres was not asymptomatic, had neck pain and neck
problems, and his spinal stenosis was not quiescent before the
17 A-2388-15T3
incident. Moreover, the Board pointed out that Petrucelli's pre-
existing condition was "stable, unlike Torres's spinal stenosis,
which both Dr. Berman and Dr. Weiss agree[d] is progressive and
in some cases progressive to myelopathy." Thus, the Board properly
rejected the ALJ's reliance on Petrucelli. See Estate of
Terminelli v. Police & Firemen's Ret. Sys., 290 N.J. Super. 231,
234 (App. Div. 1996) (distinguishing Petrucelli because
"Terminelli had a preexisting symptomatic coronary artery disease,
which was aggravated by the February 3 incident"), aff'd o.b., 148
N.J. 433 (1997).
Moreover, the Board cited Dr. Weiss's diagnosis that after
the strain and sprain, Torres "had an aggravation of pre-existing
quiescent age-related multi-level degenerative disc disease and
osteoarthritis of the cervical spine." The Board found "Torres's
underlying 'advanced' or 'significant' degenerative spinal
stenosis, was 'aggravated' or 'ignited' by the incident, and was
not caused by it, thus making Torres's case more akin to Gerba
than Petrucelli."
In Gerba, our Supreme Court ruled that "[w]here there exists
an underlying condition such as osteoarthritis which itself has
not been directly caused, but is only aggravated or ignited, by
the trauma, then the resulting disability is, in statutory
parlance, 'ordinary' rather than 'accidental' and gives rise to
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'ordinary' [disability] pension benefits." Gerba, 83 N.J. at 186.
The Court upheld the Board's rejection of an accidental disability
claim where "the traumatic event contributed to the progression
of [the pre-existing] condition . . . by aggravation." Id. at
189.
In Korelnia v. Bd. of Trs., Pub. Empls.' Ret. Sys., 83 N.J.
163 (1980), the Court followed Gerba and remanded for the member
to show "that trauma constituted either the essential significant
or the substantial contributing cause of the ultimate disability,"
rather than that "the traumatic event only ignited or aggravated
an underlying osteoarthritic condition without constituting a
medically sufficient cause thereof." Korelnia, 83 N.J. at 165,
169-72.
The Court in Richardson cited Gerba favorably. Richardson,
192 N.J. at 196-97. The Court acknowledged "the members in Gerba
and Korelnia were both denied accidental disability pensions on
medical causation grounds" despite suffering "traumatic events."
Id. at 203. The Court held that Gelba, Korelnia, and Cattani had
the "correct" "view of legislative intent" regarding traumatic
events. Id. at 211-12.
Therefore, the "exacting standard of medical causation"
established in Gelba governs. 83 N.J. at 185. The Board's finding
that Torres failed to meet that standard was not arbitrary,
19 A-2388-15T3
capricious, or unreasonable, and had fair support in the record.
"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." Id.
at 189.
Affirmed.
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