WITHEY MILES VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM(BOARD OF TRUSTESS AND POLICE AND FIREMEN'SRETIREMENT 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NOT FOR PUBLICATION WITHOUT THE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-5622-15T1
WITHEY MILES,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
______________________________
Argued October 2, 2017 – Decided October 19, 2017
Before Judges Messano and Vernoia.
On appeal from the Board of Trustees of the
Police and Firemen's Retirement System, Docket
No. 17661-2013.
Luretha M. Stribling argued the cause for
appellant.
Christina Levecchia, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Ms. Levecchia, on the
brief).
PER CURIAM
Appellant Withey Miles appeals from the final agency decision
of the Board of Trustees, Police and Firemen's Retirement System
(Board) denying his application for accidental disability
retirement benefits. Having reviewed the record in the light of
the applicable law, we affirm.
I.
Appellant was employed as a police officer by the University
of Medicine and Dentistry of New Jersey. In 2007, he was kicked
by a patient and suffered an injury to his left knee. He was out
of work for three months and then returned to full-time work duty.
In 2011, he twisted his left knee and was struck in the left knee
by a fellow officer during their interaction with an unruly
patient. Appellant first sought treatment for an injury to his
left knee one month later.
In September 2012, appellant applied for accidental
disability retirement benefits, claiming a disability based on the
2007 and 2011 incidents. Appellant required a left knee
replacement and claimed he could not perform his duties as a police
officer. The Board denied the application for accidental
disability benefits, finding that appellant was "not considered
totally and permanently disabled" from the 2007 and 2011 incidents,
and that appellant's disability was the result of a "pre-existing
disease alone or a pre-existing disease that is aggravated or
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accelerated by work effort." The Board, however, determined
appellant was totally and permanently disabled "based on other
medical reasons than those filed on [appellant's] disability
application," and granted him ordinary disability retirement
benefits.
Appellant appealed the Board's denial of accidental
disability benefits.
At a hearing before an administrative law judge, the Board's
expert in orthopedic surgery, Dr. Richard Rosa, testified
defendant suffered from severe tricompartmental arthritis in his
left knee prior to the 2007 incident. He described the arthritis
as a chronic condition that developed over a ten to fifteen-year
period. He further opined that defendant's inability to work as
a police officer "was the result of an aggravation of
osteoarthritis and not a direct result of" any injury sustained
during the 2007 or 2011 incidents.
Appellant called Dr. Arthur Becan as an expert in the area
of orthopedics. Dr. Becan opined that appellant could not perform
his job duties due to an injury to his left knee. He testified
that he reviewed films of defendant's knee made immediately
following the 2007 incident and they showed "advanced arthritis
involving the patella femoral joint and medial compartment and
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only a mild arthritis involving the lateral compartment." Dr.
Becan said the conditions predated the 2007 incident.
When asked about the cause of appellant's current disability,
Dr. Becan testified that the 2011 incident caused an "aggravation
and acceleration of [appellant's] pre-existing" arthritis in his
left knee. Dr. Becan explained that the films of appellant's knee
following the 2011 incident showed that the "arthritis had
increased significantly" and appellant had "further degenerative
changes to the medial meniscus, . . . progressive chondromalacia
of the patella femoral joint, which is degeneration of the
articular cartilage underneath the kneecap." Dr. Becan opined
that the December 2011 incident did not cause the conditions in
appellant's knee, but instead the incident "caused an aggravation
and acceleration of the underlying condition."
The administrative law judge issued a written decision
finding appellant was not entitled to accidental disability
benefits. The judge noted that the experts agreed the 2011
incident did not cause defendant's disability. Instead, they
testified his disability resulted from a pre-existing and
degenerative osteoarthritis in his left knee that was aggravated
by the 2011 incident. Based on that testimony, the administrative
law judge determined the 2011 incident was not the "essential
significant or substantial contributing cause" of the disability.
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The Board adopted the administrative law judge's findings of
fact and conclusion of law, and issued a final decision denying
appellant's application for accidental disability payments. This
appeal followed.
II.
"Our review of administrative agency action is limited."
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,
27 (2011). Indeed, we presume the validity of the "administrative
agency's exercise of its statutorily delegated responsibilities."
Lavezzi v. State, 219 N.J. 163, 171 (2014). 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 re
Application of Virtua-West Jersey Hosp. for a Certificate of Need,
194 N.J. 413, 422 (2008). "Where . . . 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." Gerba v. Bd. of Trs., Pub. Emps.'
Ret. Sys., 83 N.J. 174, 189 (1980). We review de novo an agency's
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interpretation of a statute or case law. Russo, supra, 206 N.J.
at 27.
"The burden of demonstrating that the agency's action was
arbitrary, capricious or unreasonable rests upon the [party]
challenging the administrative action." In re Arenas, 385 N.J.
Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219(2006). "'[T]he test is not whether an appellate court would come
to the same conclusion if the original determination was its to
make, but rather whether the factfinder could reasonably so
conclude upon the proofs.'" Brady v. Bd. of Review, 152 N.J. 197,
210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74,
79 (App. Div. 1985)).
N.J.S.A. 45:16-7(1) provides that a member of the Police &
Firemen's Retirement System1 is entitled to accidental disability
retirement benefits if he or she "is permanently and totally
disabled as a direct result of a traumatic event occurring during
and as a result of the performance of his [or her] regular or
1
"Accidental disability pensions are also offered under the Public
Employees' Retirement System (PERS), N.J.S.A. 43:15A-43; State
Police Retirement System, N.J.S.A. 53:5A-10; Prison Officers'
Pension Fund, N.J.S.A. 43:7-12; and the Teachers' Pension and
Annuity Fund (TPAF), N.J.S.A. 18A:66-39." Richardson v. Bd. of
Trs., 192 N.J. 189, 192 n.1 (2007) The grant of accidental
disability retirement benefits in those pension systems is
conditioned on "identical standards to those in N.J.S.A. 43:16A-
7." Ibid.6 A-5622-15T1
assigned duties . . . ." The statute expressly provides that a
disability resulting from a "musculo-skeletal condition that was
not a direct result of a traumatic event occurring in the
performance of duty shall be deemed an ordinary disability."
N.J.S.A. 45:16A-7(4).
Our Supreme Court has explained that the terms "traumatic
event" and "direct result" reflect the Legislature's intent "to
make the granting of an accidental disability pension more
difficult." Gerba, supra, 83 N.J. at 183 (quoting Cattani v. Bd.
of Trs., Police & Fireman's Ret. Sys., 69 N.J. 578, 584 (1976)).
The Court has explained that
to obtain accidental disability benefits, a
member [of the pension system] 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;
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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.
[Richardson v. Bd. of Trs., 192 N.J. 189, 212-
13 (2007) (emphasis added).]
The petitioner bears the burden of establishing a direct
connection between a work-related injury and the claimed
disability by a preponderance of the evidence supported by
competent medical evidence. Russo v. Teachers' Pension & Annuity
Fund, 62 N.J. 142, 147 (1973). To establish that a disability is
the "direct result" of traumatic event, it must be proven that
event was "the direct cause, i.e., the essential significant or
substantial contributing cause of the disability. . . ." Gerba,
supra, 83 N.J. at 187.
Here, appellant did not satisfy his burden. As the Board
correctly determined, although appellant showed that the 2011
incident was a traumatic event,2 he failed to demonstrate that his
disability was the direct result of the event. To the contrary,
2
We reject appellant's reliance on his claim that the Board erred
in finding that the 2011 incident was not a traumatic event under
N.J.S.A. 45:16-7(1). The Board did not deny appellant's
application for accidental disability retirement benefits because
it determined that the 2011 incident was not a traumatic event.
The Board denied the application because it determined appellant's
disability was not the direct result of the 2011 incident.
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the substantial credible medical evidence established that his
disability was the direct result of the pre-existing
osteoarthritis in his left knee, which was only aggravated by the
2011 incident.
Under essentially identical circumstances, the Court affirmed
the denial of accidental disability benefits in Gerba, supra, 83
N.J. 174. The Court held 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 'ordinary' pension benefits."
Id. at 186.
Here, the medical evidence the Board determined was credible
established that the 2011 incident was not the "essential
significant or substantial contributing cause," see id. at 187,
of appellant's disability. Dr. Rosa and Dr. Becan testified that
it was appellant's osteoarthritis, and not the 2011 incident, that
resulted in his disability.
The Board's findings are supported by substantial credible
evidence in the record and its determination is consistent with
the Court's interpretation of the requirements for accidental
disability benefits under N.J.S.A. 45:16-7. See Richardson,
supra, 192 N.J. at 212-13; Gerba, supra, 83 N.J. at 186.
9 A-5622-15T1
Affirmed.
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