MICHAEL MUSKA VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES'RETIREMENT SYSTEM(PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-5723-14T2
MICHAEL MUSKA,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC
EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent.
Argued April 26, 2017 – Decided July 11, 2017
Before Judges Alvarez and Accurso.
On appeal from the Board of Trustees of the
Public Employees' Retirement System, Docket
No. 725505.
Meredith C. Sherman argued the cause for
appellant (Pepper Hamilton LLP, attorneys;
Angelo A. Stio, III and Thomas I. Plotkin, of
counsel and on the brief).
Robert E. Kelly, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Mr. Kelly, on the brief).
PER CURIAM
Michael Muska appeals from the July 20, 2015 final
determination of the Board of Trustees, Public Employees'
Retirement System (Board), denying his application for accidental
disability retirement pursuant to N.J.S.A. 43:15A-43. We now
affirm, essentially for the same reasons stated by the Board, with
only the following brief comments.
Muska, who was born in 1956, worked as a laborer for the
Middlesex County Road Department from 1986 to 2009. On April 3,
2008, while carrying some tools, he fell at an awkward angle into
a deep hole, sustaining injuries to his back. He was treated at
a nearby medical office and sent for magnetic resonance imaging
(MRI). After months of physical therapy and cortisone injections,
he ceased treatment for the injuries in February 2009. That month,
he applied for accidental disability retirement, which was denied.
The Board advised that because of his years of service, he was
nonetheless eligible for deferred retirement.
Muska appealed, and the matter was transmitted to the Office
of Administrative Law (OAL) for a hearing as a contested case
under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1
to -15, and the Uniform Administrative Procedure Rules, N.J.A.C.
1:1-1.1 to -21.6.
During the hearing, Muska denied having had any medical issues
with his back prior to the incident. He also acknowledged that
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he received no additional treatment after February 2009. He said
that he merely "liv[ed] with the pain[.]" The Administrative Law
Judge (ALJ) also heard from two expert witnesses, Muska's treating
physician via de bene esse deposition, and Arnold T. Berman, M.D.,
the State's expert. During his testimony, it became clear that
Muska's treating physician was unaware of a 2002 MRI taken of
Muska's back. He also had not read the incident report nor the
independent medical evaluation procured by the Board. Thus the
ALJ rejected the physician's conclusion that the injury was the
cause of Muska's pain.
Rather, the ALJ relied upon the report by the Board's expert,
Dr. Berman, issued after a review of the 2002 MRI, the 2008 MRI,
and the complete medical history. Dr. Berman found that although
the 2008 MRI depicted significant degeneration in the spine,
including mild bulging of the discs, and disc desiccations, the
same condition was depicted in the 2002 MRI. As a result of
comparing the MRIs and administering a number of tests he
characterized as objective, Dr. Berman opined that there was no
significant difference in Muska's back between 2002 and 2008. In
fact, the 2002 MRI showed significant age-related degeneration and
desiccation that was apparently untreated, and the 2008 MRI showed
no changes. He further testified that the most important findings
on the MRIs "were high up in the lumbar area, and the degenerative
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herniation found there did not correspond with the symptoms
reported by [Muska.]" As a result, Dr. Berman opined to a
reasonable degree of medical certainty that the symptoms Muska
reported were not caused by the fall, but rather were a
continuation of a chronic back condition that was idiosyncratic
and related to age. Dr. Berman noted that in 2002 an MRI would
not have been conducted unless Muska had experienced pain with his
back that was unresolved after six weeks of treatment.
The Board relied on the ALJ's extensive, detailed findings
of fact, with two exceptions. It rejected her statement that
Muska's complaints of pain, as a result of the injury, were
credible. That statement was not corroborated, and was in fact
contradicted, by the ALJ's other findings. The Board similarly
noted that the ALJ mistakenly stated that both experts found Muska
to be disabled. To the contrary, Dr. Berman was "unambiguous" in
his conclusion that Muska was not disabled. Other than those two
factual disagreements, the Board adopted the ALJ's ninety-nine
specific findings of fact, and her initial decision as modified,
including the recommendation that the application for accidental
disability retirement be denied. The Board again denied Muska's
request, and this appeal followed.
Muska raises the following points for our consideration:
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I. Standard of Appellate Review.
II. The PERS Board Erred in Denying Mr.
Muska's Application for Disability Retirement
Because Mr. Muska's April 3, 2008 Injury
Directly Resulted in Permanent and Total
Disability, Preventing Mr. Muska From Working
as a Laborer.
A. Legal Standard for Accidental Disability
Pension.
B. The Board Conferred Undue Weight to the
Testimony of Dr. Berman, and its Factual
Findings are thus Unreasonable and not
Supported by Substantial Evidence.
1. Dr. Berman's findings are the
outlier in Mr. Muska's medical
evaluations and treatments.
2. Dr. Berman's conclusions should not
have been given more weight than Dr.
Patti's.
3. Mr. Muska's 2002 MRI is not
Dispositive.
C. Mr. Muska is entitled to disability
retirement as a matter of law.
Our role in reviewing administrative agency decisions is
limited. In re Stallworth, 208 N.J. 182, 194 (2011). We affirm
such decisions where they are supported by the evidence, even if
we may question the wisdom of the decision or would have reached
a different result. Ibid. A "strong presumption of reasonableness
attaches to [an agency decision]." In re Carroll, 339 N.J. Super.
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429, 437 (App. Div.) (internal quotation marks and citations
omitted), certif. denied, 170 N.J. 85 (2001).
An agency's factual findings are binding upon us when
supported by adequate, substantial, and credible evidence. We
reverse an agency's decision only if we find it to be "arbitrary,
capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole." Stallworth, supra,
208 N.J. at 194 (internal quotation marks and citations omitted).
The burden of establishing that agency action is arbitrary,
capricious, or unreasonable is on the appellant. Bueno v. Bd. of
Trs., 422 N.J. Super. 227, 234 (App. Div. 2011).
In determining whether agency action is arbitrary,
capricious, or unreasonable, we ask if it violates express or
implied legislative policies and if the record contains
substantial evidence to support the findings on which the agency
based its action. We also ask whether the agency erred in applying
legislative policies to the facts. Stallworth, supra, 208 N.J.
at 194.
Applying those standards to this dispute, we find no basis
to reverse the Board's decision. The record is clear that the
Board's expert had more information available to him than did
Muska's treating physician, who had not seen him for a number of
years. The fact the MRIs taken in 2002 and 2008 showed no
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significant difference, other than age-related degeneration that
was not associated with Muska's complaints of pain, certainly
bolster the ALJ's decision, and ultimately, the Board's, to credit
the testimony of one expert over another. State v. Cryan, 363
N.J. Super. 442, 457 (App. Div. 2003) ("A judge sitting as the
trier of fact is free to reject any testimony, in whole or in
part, that he or she does not find credible, including the
testimony of an expert.").
Furthermore, that Muska denied having had prior back
difficulties, when he obtained an MRI in 2002, raised a significant
question as to his credibility. That question is highlighted by
the fact he has not received treatment since 2009. Thus there is
no basis for reversing the Board's opinion; it is not arbitrary,
capricious, or unreasonable. It is supported by sufficient
credible evidence on the record as a whole and accords with well-
established law. Therefore, we affirm. See R. 2:11-3(e)(1)(D).
Affirmed.
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