IN THE MATTER OF DANIEL BENBROOK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0451-08T10451-08T1

IN THE MATTER OF

DANIEL BENBROOK.

________________________

 

Submitted November 16, 2009 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, No. 3-10-33509.

Rudnick, Addonizio & Pappa, attorneys for appellant Daniel Benbrook (Mark F. Casazza, on the brief).

Anne Milgram, Attorney General, attorney for respondent Board of Trustees of the Police and Firemen's Retirement System (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa T. Dutton, Deputy Attorney General, on the brief).

PER CURIAM

Daniel Benbrook appeals from an August 12, 2008 decision of the Board of Trustees of the Police and Firemen's Retirement System (Board), rejecting his claim for accidental disability benefits. We affirm.

I

Benbrook, a police officer, applied for accidental disability retirement benefits in January 2006. The Board found him to be totally and permanently disabled from performing his police duties and awarded him ordinary disability retirement benefits. However, the Board denied his claim for accidental disability retirement, concluding that he did not satisfy N.J.S.A. 43:16A-7, which requires that an employee be "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." (Emphasis added).

Benbrook appealed and was granted an administrative hearing. With the parties' consent, the assigned administrative law judge (ALJ) bifurcated the hearing, first considering whether Benbrook suffered a traumatic event.

At the first hearing, there was no dispute that Benbrook was injured during an incident on July 12, 2002 in which he attempted to pull a suspect off a motorcycle. According to Benbrook, when he stopped the suspect and ordered him to get off the motorcycle, the suspect, who was about 6 feet 3 inches tall and weighed about 250 pounds, hit him in the throat, and then hit him in the shoulder. Nonetheless, Benbrook, who was 6 feet 5 inches tall and weighed 280 pounds, was able to grab the suspect's arm and hold him until backup officers arrived. In his testimony, Benbrook confirmed that neither he nor the suspect fell during the incident. However, the suspect continued to flail his body while Benbrook was holding onto him.

After hearing this evidence, the ALJ determined that Benbrook had suffered a traumatic event, in that he had been "the subject of an unprovoked attack" by a suspect. The ALJ then held a second hearing to address whether Benbrook's disability was a direct result of the traumatic event. The evidence at that hearing consisted of additional testimony from Benbrook, plus videotaped de bene esse depositions from the parties' medical experts.

At this hearing, Benbrook testified that when he was about twelve years old, he had pins inserted in his upper legs to address a condition known as "slipped epiphysis." The pins were removed when he was fourteen, and he had no problems with his legs thereafter. He had lived a very active life, including playing high school sports and semi-professional football, serving in the military, and serving as a police officer for twelve years. During all that time, he had no problems with his hip or his back, until after the July 2002 incident. On cross-examination, he acknowledged that after the incident, he had been diagnosed with osteoarthritis of the right hip and a spinal condition known as spondylolisthesis.

Benbrook presented videotaped testimony from his treating orthopedic surgeon, Dr. John Michael Tozzi. Dr. Tozzi did not submit an expert report and his testimony was limited to his treatment and diagnosis of Benbrook. Dr. Tozzi began treating Benbrook in September 2006. Benbrook told Tozzi that during the July 2002 incident, he felt "significant pain and discomfort in his hip with a pop." Benbrook reported that after the incident, he had "unremitting and unbearable" pain in his right hip. Tozzi's diagnosis at that time was as follows:

[I]t is my opinion that this gentleman has an underlying degenerative process. He suffered a traumatic injury with bleed into his capsule, possible small microfracture within the femoral head . . . I will have to state that this is an exacerbation of his underlying pathology, but this is certainly related to his injury as of July 12th, 2002.

Tozzi knew that Benbrook had "hip pathology" as a child, which was addressed by inserting pins. He testified that Benbrook had "an underlying degenerative process secondary to having [that] procedure." On cross-examination, he agreed this degenerative condition was "osteoarthritis." However, because Benbrook had been able to live an active life and had been "totally asymptomatic up until the time of the [2002] injury," Tozzi opined that "this [injury] was the major factor in the cause for his need for further intervention." Tozzi could not answer whether, without that trauma, the underlying condition would have caused Benbrook to retire early.

Tozzi testified that the July 2002 injury to the hip was called "hemarthrosis" with probable microfractures. There were also degenerative changes. Due to Benbrook's continued severe pain from the hip condition, Tozzi performed a "total hip arthroplasty" or hip replacement in November of 2002. He testified that he performed the hip replacement to address the event that had caused the unbearable pain, i.e., the trauma. He testified that even after physical therapy, Benbrook had problems performing some physical activities. Tozzi did not, however, testify that the hip replacement was the essential significant cause of Benbrook's disability. He did not address Benbrook's spinal problems at all.

On cross-examination, Tozzi admitted that hip replacement surgery is sometimes performed to treat osteoarthritis even on patients who have not suffered a traumatic event. Asked if it was "possible that Mr. Benbrook would have eventually needed a total hip arthroplasty even without the July 12, 2002 incident occurring," Tozzi responded that "[i]t is my opinion that . . . there is a probability that he would have needed it." He further testified that there was "no way for one to predict when" Benbrook would have needed the surgery if he had not had the traumatic incident.

The State presented videotaped testimony from Dr. Irving Strouse, an orthopedic surgeon, who examined Benbrook on March 7, 2006, to determine if he was disabled and if so, whether he was disabled by an accident. Benbrook told Dr. Strouse that he had undergone hip replacement and spinal fusion surgeries. Based on his review of x-rays and medical records, Strouse agreed with Tozzi that Benbrook had "preexisting severe arthritis in his hip." He testified that the arthritis was caused by the insertion of the pins when Benbrook was a teenager. According to Strouse, spinal X-rays also showed that Benbrook had pre-existing conditions in the form of "spondylolisthesis" or "slippage of one vertebrae on another" and "severe degenerative disc disease at L5-S1." MRI's also had revealed some protruding spinal discs, and Strouse diagnosed "nerve compression in the spine."

While Strouse agreed that Benbrook was totally and permanently disabled, he testified that the disability

comes from both his hips, which were severely degenerated, and his lumbar spine which had a severe degenerative condition, plus, his subsequent surgery, he had a right hip replacement, he had spinal fusion.

Strouse further opined that while the 2002 injury aggravated the pre-existing condition, "the aggravation was temporary" and "the need for those surgical procedures was . . . due to the preexisting degenerative conditions." He specifically testified that the hip surgery was not necessitated by the 2002 incident but by the underlying degenerative arthritis. On cross-examination, Strouse repeated that within a reasonable medical probability, Benbrook's police career would have ended early due to his underlying degenerative conditions, regardless of the July 2002 injury.

The ALJ credited Benbrook's testimony that, prior to the 2002 incident, he had been able to work and play sports without any problems with his hip or back. In his findings of fact, the ALJ recited the experts' testimony, but did not specifically indicate which medical expert he found more credible. However, in his conclusions of law, the ALJ concluded that, because (other than the childhood surgery) Benbrook had no prior problems with his hip or spine before the incident, there was "no basis for suggesting . . . that the underlying condition was so significant as to lead to a reasonable conclusion that his disability would have occurred anyway without the accident." The ALJ therefore concluded that "the traumatic event was the 'essential significant or substantial contributing cause' of the permanent and total disability."

In its final decision, the Board accepted the ALJ's findings of fact but rejected his legal conclusions that the incident was a traumatic event and was the substantial contributing case of Benbrook's disability. Relying on language in Richardson v. Bd. of Trs., 192 N.J. 189, 213 (2007), the Board concluded that the July 2002 incident was not a "traumatic event" because "his disability was the result of a pre-existing disease that was merely aggravated by his work."

The Board also determined that the ALJ's conclusion that the 2002 event was "the essential significant or substantial contributing cause of his disability" was not supported by the record. In other words, the disability was not a "direct result" of the incident. The Board primarily relied on Gerba v. Bd. of Trs., 83 N.J. 174, 189 (1980), and on its reading of Richardson as excluding "pre-existing conditions that result, or combine to cause, a disability."

Most importantly, however, the Board found that Benbrook had not presented expert testimony in order to satisfy his burden of proof on the causation issue. The Board found that Tozzi was not presented as an expert witness and had not opined that the incident was "the essential significant or substantial contributing cause" of the disability. Further Tozzi had conceded "that there was a probability that . . . Benbrook would have needed a total right hip arthroplasty even without the July 12, 2002 incident." The Board also relied on Strouse's testimony that the surgeries were necessitated by the pre-existing conditions. Noting that the ALJ had made no credibility findings as to the experts, the Board found that his reliance on Benbrook's testimony alone was improper and contradicted the opinions of both experts that Benbrook probably would have eventually needed the hip surgery even without the incident.

II

We will not overturn the agency's decision unless it was arbitrary, capricious or unreasonable or violated legislative policies expressed or implied in the act governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). An agency decision is considered arbitrary, capricious or unreasonable where it is not supported by substantial credible evidence in the record as a whole, is offensive to the federal or state constitution or is inconsistent with its statutory mission. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9-10 (2009). Substantial evidence constitutes "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). There is, however, a "particularly strong need for careful appellate review" where the agency's factual findings are contrary to those of the ALJ. In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 1998). With these principles in mind, we first consider the applicable law concerning accidental disability.

The Richardson case, on which the Board relied, was directed at clarifying the term "traumatic event" as used in N.J.S.A. 43:16A-7. In Richardson, supra, the Court rejected the view that an employee could not prove a "traumatic event" without showing that the employee had been injured by a "great rush of force":

We recognize that an injury generated by a great rush of force is one example that will satisfy the traumatic event standard, but not the only example. Rather, the traumatic event standard will also be met by a work-connected 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). By that paradigm shift, we return to what we believe the Legislature intended in adopting the language of N.J.S.A. 43:16A-7 --to excise disabilities that result from pre-existing disease alone or in combination with work effort from the sweep of the accidental disability statutes and to continue to allow recovery for the kinds of unexpected injurious events that had long been called "accidents." In so doing, we also provide decision makers with a standard capable of consistent and uniform application.

[192 N.J. at 192-93.]

The Court further clarified that "the terms accident and traumatic event are essentially interchangeable." Id. at 210.

The Court emphasized that ordinary work effort in combination with a pre-existing disability, could not itself give rise to a traumatic event (as when a worker with a pre-existing heart condition has a heart attack as a result of working harder than usual). However, the Court quoted and did not retreat from its prior ruling that a genuine accident could combine with a pre-existing condition to produce a compensable event:

However, 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 pre-existing disease.

[Id. at 202 (quoting Cattani v. Bd. of Trs., 69 N.J. 578, 586 (1976)).]

We conclude that what happened to Benbrook was a "traumatic event" as Richardson defined it, because he was injured during a struggle with a suspect who attacked him. In Richardson, the Court concluded that the amendments limiting accidental disability "sought to prohibit the grant of accidental disability benefits to a member disabled by a pre-existing condition, alone or in combination with work effort, no more and no less." Id. at 210. In other words, the work effort itself, with or without a pre-existing condition, cannot be the traumatic event. Further, Richardson differentiated "work effort" from "accident." We conclude that the attack on Benbrook by the suspect, and the resulting injury, was an "accident" and not ordinary work effort.

The real question in this case is whether the disability directly resulted from the accident, or whether it was caused by the pre-existing condition. Thus, we conclude that this case turns on the issue of "direct" causation, an issue Richardson did not address, because in Richardson, direct causation was stipulated. Id. at 214. While we disagree with the Board on the "accident" issue, we agree with the Board on the issue of causation, substantially for the reasons stated in the agency's final decision. We add the following comments.

As the Board noted, both doctors testified that Benbrook probably would have needed hip replacement surgery at some point due to his pre-existing condition. Moreover, Benbrook did not present expert testimony to rebut Strouse's testimony that Benbrook's pre-existing lumbar condition would have required surgery even without the job-related trauma. Strouse's opinion, that both pre-existing conditions would have forced Benbrook to retire early regardless of the July 2002 incident, was also un-rebutted with medical evidence. Tozzi's testimony on the causation issue was equivocal at best. And Benbrook's testimony that he was asymptomatic and physically active before the incident and had serious physical problems after it, was insufficient to prove direct causation.

On this factual record, the Court's analysis in Gerba v. Bd. of Trs., 83 N.J. 174 (1980), is on point:

Where 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. Hence, in terms of a traumatic event equating with a statutorily sufficient medical cause of an "accidental" disability, what is now required . . . is a traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.

[Id. at 186.]

See also Korelnia v. Bd. of Trs., 83 N.J. 163, 169-70 (1980). We agree with the Board that Benbrook failed to prove that the 2002 incident was the "essential significant or the substantial contributing cause" of his disability. See Gerba, supra, 83 N.J. at 186.

Affirmed.

 

The case revolves around an incident in July 2002 in which Benbrook was injured. He had hip and spine surgery thereafter. Following the surgery, Benbrook "returned to work at full duty in November 2003" but "continued to complain of lower back pain and finally stopped working in September of 2005."

The same section also provides: "Permanent and total disability resulting from a cardiovascular, pulmonary or musculo-skeletal condition which 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. 43:16A-7.

The spinal surgery, a posterior lumbar laminectomy and a posterior lumbar fusion, was performed on May 20, 2003.

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A-0451-08T1

December 11, 2009