DALE ROSAS v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3714-08T13714-08T1

DALE ROSAS,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

 

Submitted May 24, 2010 - Decided

Before Judges R. B. Coleman and Alvarez.

On appeal from the Board of Trustees, Public Employees' Retirement System, Docket No. 1092763.

Shebell & Shebell, attorneys for appellant (Danielle S. Chandonnet, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kellie L. Kiefer Pushko, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner appeals from a final determination by the Board of Trustees of the Public Employees' Retirement System (the Board), rejecting the findings and recommendations of an Administrative Law Judge (ALJ) on petitioner's claim for accidental disability retirement under N.J.S.A. 43:15A-43. We affirm.

The incidents giving rise to the claim occurred on May 21, 2002, and May 29, 2002, when petitioner was employed by the Eatontown Board of Education (Eatontown) as a special education aide. On May 21, petitioner was assisting a child on a rehabilitative structure called "the gym." He became frightened and fell, grabbing at her, causing her to also fall to the ground. She injured her back, neck, and right shoulder and knee in the fall. She received medical attention that day and was placed on light duty, with a recommendation for physical therapy. A few days later, on May 29, 2002, the same child slipped and fell as petitioner was assisting him, causing her to again fall to the floor on her right side. She was seen by the same doctor and was subsequently treated by Drs. Barry Swick and Harris Bram. Petitioner returned to work, but in November 2002, she was hospitalized with spinal meningitis unrelated to her workplace injuries. Eatontown subsequently advised her that her job was not "light duty," as was medically required, and that Eatontown could not continue to employ her.

Petitioner thereafter filed an application for accidental disability retirement with the Division of Pensions and Benefits on August 5, 2005, alleging she was totally and permanently disabled as a result of the incidents we have described. That initial application was rejected because the Board found that she was not permanently disabled as the falls did not constitute "traumatic events" under N.J.S.A. 43:15A-43 and that her "alleged disability was not a direct result of either . . . incident[]." Petitioner was ineligible for any other benefit except for "the return of [her] accumulated pension contributions" because of her age and limited number of years of service. She appealed the denial on September 28, 2006, and the Board approved her request for a hearing on October 19, 2006. The matter was accordingly transferred to the Office of Administrative Law (OAL) as a contested case.

Upon the Supreme Court's issuance of its opinion in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), the Board decided to reconsider the application. Additional medical documentation was also submitted on petitioner's behalf in preparation for the OAL hearing. Based on this new information, the Board found that Rosas was indeed totally and permanently disabled and that the incidents on May 21 and May 29 qualified as traumatic events under Richardson. The Board maintained its position, however, that her disability was not the result of either event but instead the result of some other medical condition or conditions. Thus petitioner was denied accidental disability retirement benefits a second time. The Board voted to proceed with the OAL hearing on the issue of causation.

The plenary hearing was conducted before the ALJ on October 3 and October 7, 2008. Petitioner testified on her own behalf and presented the testimony of Dr. Martin Riss as her expert in "disability evaluations," although Riss is a family physician and is not board certified as an orthopedics specialist. Dr. Lance Markbreiter, who is a board certified orthopedic surgeon, testified as the Board's expert.

At the hearing, petitioner claimed she had never suffered from orthopedic problems prior to the falls, however, she testified that she had been stricken by congenital polio malitis as a child and was required to wear a corrective brace on her leg. She has also suffered from idiopathic thrombocytopenic purpura, a blood disorder that causes a low platelet count, since 1979. Additionally, petitioner has hyperthyroidism, hypertension, and high cholesterol. She was diagnosed with breast cancer in 2006 and received chemotherapy and radiation treatment. That same year, she suffered a stroke which caused minor vision loss in her left eye. Petitioner was diagnosed with carpal tunnel syndrome in both wrists in 2006.

Riss testified that he examined petitioner on August 21, 2008, reviewed her medical records, took a complete history, and performed a physical examination, although he did not have the opportunity to examine the x-rays or MRIs taken immediately following the falls. He did refer to reports prepared by other physicians who mentioned these x-rays of her thoracic spine and lumbosacral spine as depicting "no evidence of any remarkable finding." In other words, the tests were essentially normal. Riss testified that petitioner had a host of subjective complaints at the time of his 2008 examination including headaches, neck pain, stiffness, low back pain, right knee pain, and trouble sleeping. He testified that the muscles adjoining her spine suffered from "spasm" and she had limited range of motion and a limp. Riss also said that petitioner experienced spasms in her right cervical and bilateral trapezius. He said:

Spasm after an injury is a common finding for a period of a few months, a typical person who is injured will have spasm for a while, for a few weeks, maybe two, maybe three, maybe four months. I am examining her in 2008, a little over six years after the accidents, spasm is a finding that should not be present. So, six years after the accident I'm still feeling tension in her muscles that, again, should not be there.

In his view, petitioner was totally and permanently disabled as a result of the falls, although Riss acknowledged that he could not explain the "mechanics of what caused her to have such extensive injury." He based his opinion on the fact that prior to the falls she was "a hundred percent mobile," and that thereafter:

she only goes a few more months of treatment and has to quit her job completely because she can't even do this type of job and there's no other physical job that she was capable of doing in her condition.

So, whatever accidental damage occurred on that day by November puts her out of the workplace.

Markbreiter also testified at the hearing and produced his report rendered after a physical examination of petitioner on July 21, 2006. He issued a second report on October 5, 2007, after the Board decided to reconsider petitioner's application pursuant to Richardson. Markbreiter described petitioner's initial treatment after these falls as typical for ordinary back sprain, and opined that, based on his review of the notes of her physical therapy sessions, she demonstrated satisfactory improvement. He further noted that the MRI report generated shortly after the May 2002 incidents was normal. According to petitioner's medical records, it was not until a few years after May 2002 that she began to develop headaches and pain in her neck and low back. Markbreiter noted that petitioner was diagnosed with "sacroiliac problems," which he equated with arthritis because that region is "arthritic." Upon examining petitioner in 2006, she told him that she had no pain in her knee or neck and was only experiencing some pain in her lower back. When Markbreiter performed his orthopedic examination of petitioner in 2006, he found that she had a full normal range of motion in her neck and hips for someone her age and with her medical history. He did not find any evidence of spasms in her muscles, signs of disc herniations, or radiculopathy. Petitioner expressed discomfort when pressure was applied to her sacroiliac joint, and her spine exhibited kyphosus, but Markbreiter related these conditions to her age, not trauma. He opined that petitioner was not totally and permanently disabled due to orthopedic injuries stemming from the falls. In his view, she suffered from a transitory back sprain, a commonplace injury that should not hinder her return to work.

Markbreiter further testified that it was not possible for him to connect petitioner's low back pain to an incident that occurred so many years prior because her complaints had varied over time. In addition to opining that her pain resulted from age-related arthritis in the sacroiliac joint, he suggested that it may have been a side effect of her chemotherapy, or complications from the spinal meningitis she suffered after the falls. Markbreiter noted that such infections can result in scar tissue that causes radiating pain similar to that experienced by petitioner. From an orthopedic standpoint, he did not even consider her disabled.

The Board submitted a second report authored by Dr. Malcolm H. Hermele, who examined petitioner on June 5, 2007. He added a "seizure disorder" and "obstructive lung disease" to petitioner's other complaints. He agreed that she was completely disabled, but did not attribute any percentage of the disability to orthopedic injuries from the falls.

The ALJ stated that:

the precise details of what occurred physically when [petitioner] and the child interacted on May 21 and 29 are not entirely clear . . . [it was] clear that she was injured and suffered orthopaedic consequences that affected her ability to work at least into the next school year and the restrictions that were imposed by her injuries were such that at most she could only perform light duty.

The ALJ made no specific finding as to the weight he accorded the expert testimony or reports. He noted, however, that Markbreiter, who had the benefit of examining petitioner two years earlier than Riss, did not find evidence of orthopedic problems, while Riss found significant issues, including spasm. The ALJ simply concluded that because she was able to work without limitation prior to 2002 and was restricted to light duty after her 2002 injuries, the events of May 2002 must be the direct cause of her disability. He acknowledged that she suffered from other medical setbacks after the May 2002 incidents, but was convinced that the orthopedic problems stemming from her falls were the cause of her total and permanent disability. He therefore found her to be eligible for accidental disability retirement.

On March 18, 2009, the Board voted to reject the initial decision of the ALJ because, in its opinion, only Markbreiter was board certified in orthopedics and therefore qualified to render an opinion regarding petitioner's injuries. The Board further found that the ALJ erred by substituting his own judgment for that of Markbreiter despite the doctor's status as an expert. The Board found error in the grant of accidental disability benefits to petitioner when no expert medical testimony supported the claim. The ALJ's initial decision was accordingly rejected.

Petitioner appeals, stating only the following:

POINT I - SUFFICIENT CREDIBLE EVIDENCE EXISTED IN THE RECORD FOR A FINDING OF PERMANENT AND TOTAL DISABILITY AS A DIRECT RESULT OF PETITIONER'S MAY 21, 2 002 AND MAY 29, 2002 ACCIDENTS

Our "role . . . in reviewing administrative agency decisions is limited," and we employ a deferential standard. Mainland Manor Nursing & Rehab. Ctr. v. N.J. Dep't of Health & Senior Servs., 403 N.J. Super. 562, 571 (App. Div. 2008) (citing Univ. of Med. & Dentistry of N.J. v. Grant, 343 N.J. Super. 162, 168 (App. Div. 2001)). "An . . . agency decision will not be disturbed absent a showing that it is arbitrary, capricious or unreasonable, lacks fair support in the evidence, or violates legislative policies." Ibid. (citation omitted). This deferential standard of review assumes that the administrative agency will independently evaluate the "relevant evidence and legal arguments." Ibid. (citing In Re Virtua-W. Jersey Hosp., 194 N.J. 413, 424-36 (2008)).

An administrative agency may undertake a de novo review of the record and is "free to 'adopt, reject or modify' the ALJ's" recommendation. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-87 (1988). "It is the agency head's responsibility to decide adjudicated matters brought before the agency." Id. at 586. There must, however, be a sufficient factual and legal basis to support the agency's final decision. In re Application of Howard Sav. Inst., 32 N.J. 29, 52 (1960).

We have carefully reviewed the record in this matter and we find that the decision of the Board "is supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). Accordingly, we affirm with the following observations.

Pursuant to N.J.S.A. 52:14B-10(c), a board must make new findings of fact and conclusions of law based on sufficient, competent, and credible evidence on the record when rejecting or modifying an ALJ's initial decision. The statute provides that the board "may not reject or modify . . . findings of fact as to . . . credibility unless" the ALJ's conclusions were "arbitrary, capricious, or unreasonable or not supported by sufficient, competent, and credible evidence in the record." Ibid. See also Cavalieri v. Bd. of Trs. of Pub. Employees Ret. Sys., 368 N.J. Super. 527, 533-34 (App. Div. 2004). This limitation does not apply to the testimony of expert witnesses. ZRB, L.L.C. v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 531, 561 (App. Div. 2008).

We agree with the Board's reading of Richardson. Accidental disability retirement benefits should only be awarded if "caused by circumstances external to the member" that are "not the result of [a] pre-existing" disease that is aggravated or accelerated by the work. Richardson, supra, 192 N.J. at 212-13. If the cause of the disability is an underlying condition or disease, then the disability is not considered the direct result of the traumatic event. Id. at 212. This is the case even if the work effort exacerbated that medical condition. Id. at 204, 212. It was therefore proper for the Board to reconsider petitioner's application.

Markbreiter is not only a board certified orthopedic surgeon but he had the opportunity to review petitioner's medical records as well, including MRI reports. He examined her years closer in time to the events in dispute than Riss and found no significant orthopedic problems.

In contrast, Riss was unable to connect his opinion regarding petitioner's physical condition to the falls. He had seen her at a greater remove from the events, over six years after the accident. He stated essentially that the injuries must result from the falls because petitioner was put on light duty and was physically restricted for the first time only after they occurred. Other than timing, he offered no other explanation tying together the falls with the disability.

Riss's opinion is nothing more than an inadmissible net opinion that fails to explain the "'why and wherefore.'" Polzo v. County of Essex, 196 N.J. 569, 583 (2008) (citation omitted). The net opinion rule requires that an expert explain the reasons for his or her opinion and the facts upon which that opinion is based. Creanga v. Jardal, 185 N.J. 345, 360 (2005) (citations omitted). If no causal connection is established, the opinion will not be presented to the factfinder. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Koruva v. Am. Honda Motor Co., 396 N.J. Super. 517, 525-26 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008).

In this case, Riss's failure to explain the why and wherefore justifies the Board's rejection of his testimony and reliance on the opinion of Markbreiter. Riss simply did not even attempt to establish causation. Merely attributing the petitioner's disability to the fact she was not able to continue to work except on light duty after the falls overlooks her significant medical conditions, both before and after the falls. Riss's net opinion was accordingly not a sufficient basis for the ALJ's determination.

The Board's reasoning that the critical question for decision is whether the falls were the direct cause of the alleged disability is correct. See Korelnia v. Bd. of Trs., PERS, 83 N.J. 163, 170 (1980). In this case, Riss's testimony simply did not tie together the fall and the disability; in other words, it did not establish causation. As the Board put it, "the ALJ erroneously substituted his own judgment for that of a medical expert in the field of orthopedic surgery," namely, Markbreiter. A factfinder may choose between experts, but reasons justifying the choice must be given, and the choice should only be sustained where supported by the record and in accord with applicable legal principles. See State v. M.J.K., 369 N.J. Super. 532, 549-52 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). This choice was contrary to the evidence in the record, which did not support the legal conclusion the ALJ reached. Therefore the Board's rejection of the ALJ's initial decision is meritorious.

 
Affirmed.

(continued)

(continued)

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A-3714-08T1

July 19, 2010