DAVID JONES v. BOARD OF TRUSTEES, ETC. (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NOT FOR PUBLICATION WITHOUT THE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-3571-19
DAVID JONES,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
__________________________
Argued November 1, 2021 – Decided August 10, 2022
Before Judges Accurso and Rose.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. xx6732.
Samuel M. Gaylord argued the cause for appellant
(Gaylord Popp, LLC, attorneys; Samuel M. Gaylord,
on the brief).
Matthew Melton, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Matthew
Melton, on the brief).
PER CURIAM
David Jones appeals from a final decision of the Board of Trustees of the
Public Employees' Retirement System, denying his application for accidental
disability retirement benefits. The Board rejected the findings of an
Administrative Law Judge who determined Jones is totally and permanently
disabled as a direct result of a puncture wound to his right hand suffered in a
fall at work. Because we agree with the Board that Jones failed to establish his
disabling condition was a direct result of the work injury to his hand, we
affirm.
The facts surrounding the accident are not in dispute. Jones worked as a
recycling operator for Ocean County, grinding up brush and trees, mulching
leaves and collecting materials from different sites. He'd worked for the
County for two years at the time of his accident. In 2010 Jones was
connecting an industrial tub grinder to a truck when he slipped and fell,
piercing the palm of his right hand on a bungee cord hook. He was transported
by ambulance and treated at an urgent care center.
The dispute in this case centered around the symptoms Jones reported
and their connection to the fall. Jones complained to an orthopedic surgeon
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within days of the accident of numbness and pain in his thumb and index
finger. When an MRI reflected no evidence of a tendon tear, the doctor
recommended exploratory surgery, which was performed a week after the
accident. The surgeon reported Jones' nerves and tendons were intact, and in
the weeks that followed, he improved and gained motion. Exercising his hand
at home a month or so after the fall, Jones reported feeling a tearing sensation
in his palm, after which he was unable to bend his fingers. He claimed to have
had a similar response when a physical therapist later manipulated his thumb,
sending pain shooting up into his neck.
Shortly thereafter, Jones reported he was unable to bend his hand at all,
being unable to straighten his fingers or make a fist. He also complained about
pain in his back and shoulder, problems flexing his elbow and severely limited
range of motion. Five months after his fall, Jones was reporting difficulty
moving his right arm. He reported numbness in his face and inside his mouth
and drooling. He also reported difficulty with bladder control, gaining an
erection and numbness in his feet.
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Although Jones returned to work for a short time on light duty, he
claimed he was in too much pain to continue. He resigned from his job 1 and
began treating with his own doctors after failing to obtain relief from the
treatment provided by the County's workers' compensation doctor.
The Board denied Jones' application for accidental disability retirement
benefits finding he was not totally and permanently disabled, and there was no
evidence in the record that the fall and puncture wound to his hand were a
direct cause of his symptoms. Jones appealed and the matter was transferred
to the Office of Administrative Law for a hearing.
Jones testified about the accident and his hand, shoulder and back pain.
Medical records admitted in evidence reveal Jones did not report pain in his
neck or right shoulder until about a month after the accident. A progress note
from that time by the orthopedist who performed the exploratory surgical
procedure on Jones' hand, documents Jones' speculation "that he might not
have been able to feel this initially because of the severe pain he had in the
level of the hand." The note also states Jones "has not had pain in the level of
the shoulder or the right side of the neck previously." The note concludes with
1
The County claimed Jones had abandoned his job and instituted disciplinary
action against him. Jones eventually settled his dispute with the County and
was permitted to resign in good standing.
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the surgeon determining to seek a neurology evaluation because Jones' report
of pain in his shoulder and neck as well as his elbow and hand "does not fit in
any specific orthopedic picture." The note repeats that the surgeon "visualized
that the tendon and nerve structures in the area [of the puncture wound] were
intact" during the exploratory procedure and reports the "incision is healing
nicely."
Jones testified he "sustained a lot of injuries [in the accident] that were
never looked at, and those injuries have gotten worse over time." He claimed
he was in pain "24 hours a day, 7 days a week," although taking no pain
medication and receiving no treatment. Jones testified, consistent with the
medical records in evidence, that it was after the exploratory surgery but
before he started physical therapy when he was doing range of motion
exercises at home that he experienced the "sharp pain" and "all fingers stopped
moving." He also testified that "[f]or the first month or so, it seemed like
things were progressing well." But then "[o]ne day something went terribly
wrong at physical therapy." Jones claimed the therapist "moved my thumb
out, and it shot a pain up into my neck and, then, that was it" his fingers "never
moved after that."
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According to Jones, after the problem with the pain radiating from his
thumb up into his neck, doctors undertook a "nerve conductive study," and
finding "problems," doctors "were on the defensive. They were worried
because things were bad. At that point, they never looked any further than my
neck. They never looked down my back." Jones claimed "after that, every
doctor they sent me to was trying to say there was nothing wrong. They were
just ignoring the problems."
Jones did not present the testimony of a treating doctor. Instead, each
side presented the testimony of an expert who examined Jones for purposes of
this action. In her decision, the ALJ very briefly summarized the testimony of
both experts.
The ALJ noted Jones' expert, a board certified orthopedist, who had not
performed surgery since the early 1990s, diagnosed him with "chronic post-
traumatic cervical and lumbosacral strain and sprain; bulging discs C4 -C5, C5-
C6 and C6-C7; aggravation of pre-existing age-related multi-level
degenerative disc disease; cervical radiculopathy, herniated nucleus pulposus
L4-L5 and L5-L6 and herniated discs at T1-T2 and T8-T9; [and] continuing
neuropathic pain syndrome in the right hand." The ALJ recapped the expert's
testimony that exploratory surgery of Jones' hand was conducted "[a]fter the
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hand failed to heal," and that despite "epidural injections" four years after the
accident that brought "minor relief . . . [t]he hand never fully healed." 2 She
concluded Jones' expert testified he "was working without any pain prior to the
accident," and in the expert's medical opinion, Jones "is totally and
permanently disabled as a result of his neck, back and hand injuries" as a
"direct result" of his fall at work.
The ALJ noted the Board's expert, a board certified orthopedic surgeon
who currently performs surgery in his practice, reviewed MRI, x-ray reports
and "other records from [Jones'] treating physicians." The expert claimed
Jones did not report any complaints in his back and neck during the expert's
examination of him more than four years after the accident. The expert
examined Jones' hand, noting its "clenched" state and decreased sensation, but
claimed "he could not explain the condition of [Jones'] hand and opined that it
was inconsistent with the injury." He also noted the disc bulges and
herniations reflected in the reports as well as Jones' bilateral footdrop but did
not find any evidence of the footdrop or any other disability. The ALJ
summarized the Board's expert's conclusions by writing "[i]n short,
2
It appears from the record that Jones received only one epidural injection
and no other treatment besides some occupational therapy for his hand in 2010
or 2011.
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notwithstanding the reports from various treating physicians for several years,
MRIs and x-rays to the contrary, [the Board's expert] found no evidence of any
disability in the neck, back or hand," and concluded "in his expert medical
opinion" Jones was "not totally and permanently disabled from his position at
the Ocean County Recycling Center."
Weighing the conflicting opinions, the ALJ found Jones' expert "offered
clear, concise and detailed testimony and demonstrated knowledge of [Jones']
symptoms, x-rays, MRIs and past medical history," while the Board's expert,
although having "claimed to have reviewed prior medical reports and
conducted a physical examination of [Jones], . . .gave no weight to [Jones']
symptoms, the MRI and x-rays and other medical reports." The ALJ thus
concluded it was "difficult to give any weight" to his opinion. She was "[o]n
balance, . . . persuaded by, and [gave] greater weight to, the testimony of
[Jones' expert], specifically crediting his detailed tying of [Jones'] conditions,
treatments, and [his] medical history," including "his conclusion that [Jones']
disability is total and permanent, and a direct result of the July 2010 accident ."
The Board rejected the ALJ's decision and, specifically, her findings as
to the credibility of the experts who testified at the hearing. The Board found
the ALJ misstated the testimony, noting she "incorrectly found" the Board's
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expert failed to examine Jones' neck and back, notwithstanding his
unequivocal testimony to the contrary, including his report of a negative
finding on the Spurling test. The Board found the ALJ's summary of the
expert's "testimony to be simply incorrect," providing no support for her
determination that the Board's "expert testimony and opinion were not
credible."
The Board also rejected as unsupported the ALJ's finding that the
Board's expert "gave no weight to [Jones'] symptoms, the MRI and x-rays and
other medical reports." Specifically citing to the record, the Board found the
expert "was ultimately unable to correlate Jones' subjective and self-reported
symptoms with the objective diagnostic medical evidence such as MRIs and x-
rays, to which he did give appropriate weight." The Board noted the expert
"used his medical knowledge to compare the subjective with the objective,
reaching a medical conclusion that was more supported by the available
objective evidence than Jones' expert," who the Board found "theorized about
facts outside of the record in trying to tie the alleged condition of Jones' hand
with the available medical documentation." The Board found the ALJ "failed
to properly distinguish between . . . Jones' subjective complaints versus
complaints that were corroborated by objective medical findings."
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The Board noted other errors in the ALJ's summary of the testimony,
including that Jones reported symptoms to his neck and back at the same time
he reported the injury to his hand, although Jones conceded at the hearing
those other symptoms appeared weeks after the fall. The Board found "[t]hese
differences from the actual record are not trivial," because "[u]nder the ALJ's
misreading, there were demonstrable injuries, signs of injury, and
contemporaneous subjective reports that manifested at the time of the 2010
incident, as opposed to the still unexplained set of symptoms claimed later by
Jones and unsupported by corroborating objective evidence." The Board found
"[t]he implication that Jones was not fully treated initially or fully evaluated
by [the Board's expert] on the basis of symptoms that were not presented at the
time is a fatally flawed foundation of the ALJ's credibility findings," leading to
the Board's rejection of the ALJ's findings on the point.
The Board found that in rejecting its expert's "opinion and testimony, the
ALJ effectively found a medically impossible symptomology credible." The
Board noted its expert "testified in detail that a complete paralysis of the hand
and wrist is simply not consistent with the fact that the relevant nerves that
could be affected by a puncture would innervate or enervate only particular
parts of the hand rather than the entirety of it." The Board further observed
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that "Jones' claims of limited wrist motion were also inexplicable given the
location and responsibilities of the nerves that would be implicated in his
hand's total failure to function at all compared with the puncture in his palm
that is supposedly the root of their damage."
The Board focused on its expert's testimony that when he "put Jones'
wrist in flexion to test the state of his tendons," which he demonstrated at the
hearing, "Jones' fingers did not move, indicating either that his tendons had
been severed (which is indisputably not the case) or that Jones was
purposefully not letting his fingers move in response to the test." The expert
testified to account for that response, "he'd have to have a cut of every single
tendon and every nerve across the wrist and also, he'd have to have a cut nerve
up from a higher level for wrist extension and flexion." The expert also opined
"Jones' hand symptoms could not be explained by a herniated disc or spine
pathology," an opinion the ALJ failed to address. The Board concluded the
ALJ's "[d]ecision disregarded wholesale the fact that Jones' symptoms strain
credulity and there is a far more plausible reason why Jones is not makin g use
of his allegedly paralyzed hand, which both experts stated shows no signs of
atrophy."
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Even more important, however, the Board noted "[t]he ALJ also
erroneously stated [Jones' expert] came to the conclusion that the disability
was a direct result of the 2010 incident," although he never made a "claim of
direct causation" and the decision nowhere cites to one. The Board noted
Jones' expert "testified — based on nothing in the record or his report — that
infection and inflammation in Jones' hand have spread and 'that's why he's
developed this claw like deformity, because he's getting adhesions in the hands
now. That's why the hand looks like it does on the right side.'" 3 The Board
found Jones' expert "admittedly based this opinion on the mere fact that there
was exploratory surgery following a hand puncture," but "he never reviewed
the notes of the operation to confirm this theory and instead relied on broad
3
Jones' expert further testified "one of the problems when you get a
penetrating hand wound, is that infection and inflammation can spread through
the fascial plates. That's why hand wounds are so difficult to deal with. And
that's why he did have surgery to try and get this thing under control early on."
The expert added, "[u]nfortunately for Mr. Jones, it didn't. And that's why he's
developed this claw like deformity, because he's getting adhesions in the hands
now, in the tendons that pull the fingers." According to the medical records in
evidence, the exploratory surgery performed a week after the accident was
done to allow the surgeon to visualize the nerves and tendons in the hand
based on Jones' complaint of numbness and pain in his thumb and forefinger,
not to "clean it up because it's a penetrating wound," as Jones' expert testified
without having reviewed the operative notes. The surgeon found no injury to
those structures and reported the "incision is healing nicely."
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inference to find an infection in Jones' hand ultimately responsible for the
unexplained symptoms."
The Board rejected Jones' expert's attempt to tangentially link Jones'
claimed hand paralysis "to the 2010 incident by way of an imagined infection"
never noticed or documented by any of the several doctors and physical
therapists who treated Jones in the years following his fall. The Board rejected
the ALJ's reliance on the testimony of Jones' expert because "it was not based
on the record, but on speculation."
The Board accordingly concluded Jones failed to produce competent
medical testimony that his claimed disability is the direct result of a traumatic
event. See Korelnia v. Bd. of Trs., 83 N.J. 163, 170 (1980) (explaining a
traumatic event, "while it need not be the sole or exclusive causative agent,
must at the very least be the essential significant or the substantial contributing
cause of the disability"). It noted "[t]he tenuous connection between Jones'
symptoms and his medical reports carries through to the even more tenuous
connection between his symptoms and the incident in question as the puncture
wound from the bungee cord would have been incapable of producing a total
paralysis of Jones' right hand."
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The Board explained "[t]he events presented by Jones to explain his
hand paralysis cannot, in themselves, produce a legally adequate showing of
direct causation as they rely on proximate cause." As both Jones testified and
the progress notes of the orthopedic surgeon who performed the exploratory
procedure verified, his "puzzling hand symptoms" began after a physical
therapist manipulated his thumb weeks after his fall and the exploratory
procedure. The Board concluded that "[e]ven if it were possible that the
overextension of a thumb could serve to make the severing of all the
controlling nerves and tendons that were shortly before all found to be intact,
this event was not part of the 2010 incident and does not present a direct
causation."
Jones appeals, arguing the Board "improperly determined" he failed to
prove he is totally and permanently disabled and that his 2010 fall "was the
substantial cause" of his disability. We disagree.
Our role in reviewing the decision of an administrative agency is limited.
In re Stallworth, 208 N.J. 182, 194 (2011). We accord a strong presumption of
reasonableness to an agency's exercise of its statutorily delegated
responsibility, City of Newark v. Nat. Res. Council in Dep't of Env't. Prot., 82
N.J. 530, 539 (1980), and defer to its fact finding, Utley v. Bd. of Rev., 194
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N.J. 534, 551 (2008); Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143
N.J. 22, 29 (1995) (Handler, J., dissenting). We will not upset the
determination of an administrative agency absent a showing that it was
arbitrary, capricious, or unreasonable; that it lacked fair support in the
evidence; or that it violated legislative policies. Lavezzi v. State, 219 N.J.
163, 171 (2014); Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963).
Our public pension systems are "bound up in the public interest and
provide public employees significant rights which are deserving of
conscientious protection." Zigmont v. Bd. of Trs., Tchrs.' Pension & Annuity
Fund, 91 N.J. 580, 583 (1983). Because pension statutes are remedial in
character, they are liberally construed and administered in favor of the persons
intended to be benefited thereby. Klumb v. Bd. of Educ. of Manalapan-
Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009). Nevertheless, an
employee has only the rights and benefits provided by those statutes and their
enabling regulations. Francois v. Bd. of Trs., Pub. Emps.' Ret. Sys., 415 N.J.
Super. 335, 349 (2010). The Board acts in a fiduciary capacity with the
obligation to serve the best interests of the pension fund and all of its
beneficiaries, not just the member seeking the benefit. Mount v. Trs. of the
Pub. Emps.' Ret. Sys., 133 N.J. Super. 72, 86 (App. Div. 1975).
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Applying those standards here, we are satisfied the Board appropriately
rejected the ALJ's initial decision finding Jones established he was
permanently and totally disabled as a direct result of the work injury to his
hand. See Richardson v. Bd. of Trs., 192 N.J. 189, 212 (2007) (defining a
traumatic event as "an unexpected external happening that directly causes
injury"). Although N.J.S.A. 52:14B-10(c) provides an agency head may not
reject an ALJ's fact findings as to issues of credibility of lay witness testimony
without first determining the findings are arbitrary or capricious or are not
"supported by sufficient, competent, and credible evidence in the record,"
which the Board demonstrated here, the constraint does not extend to the
testimony of experts in any event. See ZRB, LLC v. N.J. Dep't of Env't. Prot.,
Land Use Regul., 403 N.J. Super. 531, 561 (App. Div. 2008).
Cases involving disputes over accidental disability benefits are often
awash in "conflicting medical opinion, most if it offered in good faith and
always with the assurance that each is the medically accepted one." Bialko v.
H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div. 1955). It is incumbent
on the ALJ in the first instance to appraise the "maze of conflicting medical
proof," ibid., determining which opinion is the soundest depending on a
variety of factors, including whether the experts have based their conclusions
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largely on the patient's subjective complaints, and if their opinions are
supported by objective evidence corroborated by other doctors, see Angel v.
Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961).
"Unless contrary to common sense, common knowledge, or recognized
physical laws, or based on primary facts absent from the proofs, the expert's
statements are to be sifted by the [factfinder] like other testimony." Ibid. Of
course, "the value or weight of the expert opinion is dependent upon, and no
stronger than, the facts upon which it is based." State v. Vandeweaghe, 351
N.J. Super. 467, 480 (App. Div. 2002). Ultimately, "the choice of accepting or
rejecting testimony from witnesses resides with the administrative agency, and
so long as that choice is reasonably made it is accorded deference on appeal."
In re Young, 202 N.J. 50, 70-71 (2010) (quoting Campbell v. N.J. Racing
Comm'n, 169 N.J. 579, 587-88 (2001)).
Having reviewed the record, we are satisfied the Board's criticisms of
the ALJ's fact-finding here are fair ones. The ALJ's summary of the experts'
testimony is cursory and does not capture the facts underlying the opinions of
either expert. See State, Dep't of Health v. Tegnazian, 194 N.J. Super. 435,
442-43 (App. Div. 1984) (discussing the need for the ALJ to make "basic
findings of fact sufficient to support" the ALJ's recommendations). The ALJ
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relied on Jones' expert having diagnosed him as suffering from "chronic post -
traumatic cervical and lumbosacral strain and sprain; bulging discs C4 -C5, C5-
C6 and C6-C7; aggravation of pre-existing age-related multi-level
degenerative disc disease; cervical radiculopathy, herniated nucleus pulposus
L4-L5 and L5-L6 and herniated discs at T1-T2 and T8-T9; [and] continuing
neuropathic pain syndrome in the right hand," ignoring, as the Board's expert
charged, that the "diagnosis" is merely a list of MRI findings and an undefined
pain syndrome without any clinical correlation.4 Moreover, the ALJ did not
address why she rejected the Board's expert's opinion that a puncture wound
that demonstrably didn't damage the nerves and tendons in Jones' palm could
not have caused his paralysis or accepted that of Jones' expert that the
paralysis was caused by an infection nowhere documented in the medical
record, i.e., an opinion based on facts not in the record.
4
Jones' expert did not define "neuropathic pain syndrome." He testified Jones
didn't have "a median nerve issue" and "you would be hard put to say that this
gentleman had sustained a complex regional pain syndrome . . . to the right
upper extremity," because "he's got none of the clinical findings to support
Complex Regional Pain Syndrome." The expert explained he wouldn't "call
this CRPS disease because he doesn't match up with the criteria that's
necessary. So, it is what we would call neuropathic pain." The Board's expert
testified he'd never heard of it, and one would have to ask Jones' expert what
he meant by it.
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Most important, as the Board noted in its final decision, the ALJ
erroneously stated Jones' expert concluded Jones' disability was a direct result
of the 2010 incident, when he never offered that opinion at the hearing. While
arguing the Board erred in rejecting the ALJ's findings, Jones, tellingly, does
not point us to where his expert testified his paralysis was a direct result of his
2010 fall and puncture wound. We found no such testimony in the record.
Although the expert testified Jones could no longer perform the functions of
his job because he could not use his dominant hand, the expert did not opine
Jones couldn't use that hand as a direct result of having impaled it on the
bungee cord hook. Because Jones did not establish his alleged disability was
as a direct result of his 2010 accident, the Board was correct to deny him
accidental disability retirement benefits.
Affirmed.
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