IN THE MATTER OF JEFFREY A. SEIDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3993-08T23993-08T2

IN THE MATTER OF

JEFFREY A. SEIDER.

_______________________

 

Argued: January 4, 2010 - Decided:

Before Judges Axelrad and Fisher.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, Department of Treasury, No. 3-10-31222.

Samuel J. Halpern argued the cause for appellant Jeffrey A. Seider.

Danielle P. Bradus, Deputy Attorney General, argued the cause for respondent Board of Trustees, Police and Fireman's Retirement System (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Bradus, on the brief).

PER CURIAM

Jeffrey A. Seider appeals from a final determination of the Board of Trustees, Police and Firemen's Retirement System (Board) denying his application for accidental disability retirement benefits. The Board disagreed with the administrative law judge (ALJ) about whether there was a traumatic event as defined by Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), but agreed with the ALJ that Seider failed to demonstrate his disability was the direct result of the traumatic event, namely his November 9, 1998 automobile accident. On appeal, Seider challenges both findings by the Board as unsupported by substantial credible evidence in the record. We affirm.

Seider, a Franklin Township police officer, applied for accidental disability retirement benefits with the Police and Firemen's Retirement System (PFRS) in May 2003, and filed an amended application in March 2004. Seider alleged that his disability was a direct result of a traumatic event that occurred on November 9, 1998, causing him to incur injuries to his head, neck, back and knee, and post-traumatic stress disorder (PTSD).

On September 27, 2004, the Board found that Seider was totally and permanently disabled, which entitled him to ordinary disability retirement benefits, but denied his application for accidental disability retirement benefits. Seider appealed, and the Board transferred the case to the Office of Administrative Law. A plenary hearing was held on November 28, 2005. On February 27, 2006, the ALJ issued an initial decision finding that Seider's disability was not the direct result of the November 1998 accident and recommended affirmance of the Board's action denying accidental disability benefits. On April 11, 2006, the Board issued a final administrative decision adopting the ALJ's recommendations. Seider appealed.

By order of November 19, 2007, we remanded the case to the Board for reconsideration in light of the Supreme Court's decision in Richardson, supra, and did not retain jurisdiction.

On May 12, 2008, the Board reconsidered the matter under Richardson, supra, and Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), and reaffirmed its prior decision. Seider appealed and the matter was returned to the ALJ.

Inasmuch as the transcript of the original hearing was made available to the ALJ, no further hearings were deemed necessary. On January 27, 2009, the ALJ issued his supplemental initial decision, finding Seider satisfied the Richardson traumatic event test, but denied his accidental disability application because Seider's disability was not the direct result of the November 9, 1998 traumatic event. The Deputy Attorney General filed exceptions to the ALJ's finding of a traumatic event.

On March 10, 2009, the Board issued its final determination, adopting the ALJ's findings and rejection of Seider's application for accidental disability retirement benefits with the exception of the conclusion that the automobile accident was a traumatic event. This appeal ensued.

The following is the record presented at the ALJ hearing. Seider became a police officer with the Township of Franklin in 1989. Throughout his career, several significant incidents occurred. In 1990, he was on patrol and suffered a head-on collision with a drunk driver, resulting in some minor injuries, which caused him to take a few days off before returning to work. In 1994, Seider participated in a motor vehicle chase with North Brunswick police during which the fleeing suspect tried to hit his patrol vehicle while pointing a gun at him from the car window. Seider fired two shots and disabled the vehicle. He did not miss work as a result of the incident. In 1996, Seider was involved in an incident where he shoved a prisoner. In 1998, he responded to a call and unsuccessfully attempted to resuscitate an infant. Although Seider did not lose any time from work after that incident, the baby's death upset him.

On November 9, 1998, Seider responded to a call where a man had severed his fingers. Unable to wait for an ambulance, he rushed the man to a hospital in his police vehicle with lights and sirens activated, but his vehicle was struck by another en route. Seider was transported by ambulance after the accident with complaints of neck and back pain, headache, and loss of consciousness. Seider missed time from work and returned to full duty on November 1, 1999. Seider underwent an arthroscopy of the right knee for a meniscus tear. He also continued to treat for back problems and in 2000, he missed work due to persistent pain in his back, neck and knee, and was diagnosed with "right foot drop."

In 2002, while Seider was off-duty, he confronted a high school student who had allegedly stolen his son's bicycle. He grabbed the teenager, pulled him off the bike, and threw him against a responding officer's police car. The on-duty police officers intervened, pushed Seider away, and asked him to let them handle the situation. The suspect was arrested and charged with theft. The police officers filed an Internal Affairs complaint and Seider was suspended for "conduct unbecoming a police officer" and was ordered to have a psychological evaluation. After the psychologist's report was issued, Seider was suspended from the police department. He then applied for retirement.

Seider presented the testimony of Dr. Peter Crain, a psychiatrist and forensic psychologist, who evaluated him on July 28, 2005, and issued a report on August 9, 2005, and Dr. Jakob Steinberg, a psychologist who evaluated him on June 25, 2002 and issued reports on January 22, 2003, May 5, 2004, and October 7, 2005. Dr. Martin Mayer, a psychiatrist, who evaluated Seider on July 16, 2004, and issued a report on that date, testified on behalf of the Board.

In his February 27, 2006 decision, the ALJ did not find either Dr. Steinberg or Dr. Crain to be persuasive on the issue of direct result. He noted that Dr. Steinberg's first two reports listing the infant death and the car accident as the "two serious events" which caused the disability were contradictory to the report Dr. Steinberg prepared prior to the hearing and to his testimony in which he concluded that the car accident was the major event that caused the psychiatric disability. The ALJ also found that because Dr. Steinberg first examined Seider in 2002, over four years after the car accident, his conclusion that the accident was the direct cause of Seider's PTSD seemed suspect, particularly in light of the psychologist's admission that Seider experienced other serious events in his life, such as the infant's death. The ALJ also found problematic that Dr. Steinberg did not explain how Seider continued to work as a police officer for almost four years after the 1998 car accident.

The ALJ discredited Dr. Crain's testimony because he had examined Seider only once at Seider's request almost seven years after the car accident. The ALJ further found Dr. Crain's report and testimony to be contradictory on the issue of direct result because the psychiatrist acknowledged that Seider was deeply affected by several life-threatening incidents prior to the 1998 accident which contributed to his disability and agreed with the Board's expert that Seider developed a "mental disorder in the course of accidents, injuries, and cumulative emotional trauma during his police duties." However, Dr. Crain concluded that the car accident was a "quite significant" key factor that led to Seider's eventual total disability. The ALJ also found problematic that, like Dr. Steinberg, Dr. Crain did not explain how Seider was able to function effectively as a police officer for almost four years after the 1998 car accident.

The court found the "most persuasive and credible testimony" to be that of the Board's expert, Dr. Mayer, who conducted an independent medical examination. The ALJ stated:

Dr. M[a]yer concluded that Petitioner's disability "is most likely a direct result of the accidents, injuries, and cumulative emotional trauma he experienced in the course of police duties as described." Dr. M[a]yer also states that "following two incidents in 1998, there was significant damage to Officer Seider's personality and emotional adjustments resulting in irritability, marital problems, and a decline in functioning in his role as a police officer."

Dr. M[a]yer, who did his evaluation of Petitioner in July 2004, felt that there were five significant incidents: (1) infant's death; (2) 1998 car accident; (3) family issues; (4) 1990 car accident and (5) 1994 shooting. Dr. M[a]yer testified candidly that his evaluation was done far too long after the incidents to differentiate between these incidents or to choose the one incident that caused the disability. He was also candid in his testimony when he said he did not recall why he checked the box on . . . his summary report, indicating that the disability was the direct result of the accident.

The ALJ found that Dr. Mayer's testimony was bolstered by the report of Allen P. Blasucci, PsyD., who opined that Seider's present condition "is a direct consequence of multiple trauma experiences occurring while in the performance of his duties as a police officer[,]" referencing the 1994 shooting, 1998 car accident and the infant's death. The ALJ noted that the report of Dr. Aylward, Seider's psychologist, did not support the conclusion that the car accident was the event that directly caused Seider's disability.

In concluding that Seider had not established by a preponderance of the evidence that the November 1998 car accident directly caused his psychiatric disability and he, therefore, did not qualify for an accidental disability pension, the ALJ stated:

In conclusion, the expert testimony presented by Petitioner was not persuasive and falls far short of demonstrating that the 1998 car accident was the direct cause of the disability. Respondent's evidence, on the other hand, was credible and leads me to conclude that the Petitioner's disability is most likely a direct result of the accidents, injuries, and cumulative emotional trauma he experienced in the course of police duties.

Our review of an agency's final decision is a limited one. "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. Employees' Ret. Sys., 83 N.J. 174, 189 (1980). An administrative agency's determination is presumptively correct, and we will not substitute our own judgment of the facts for that of the agency if the agency's findings are supported by sufficient credible evidence and are not arbitrary, capricious or unreasonable. See In re Carter, 191 N.J. 474 (2007); Gerba, supra, 83 N.J. at 189; Englewood Cliffs v. Bd. of Educ. of Englewood, 333 N.J. Super. 370, 380 (App. Div. 2000). We consider the proofs as a whole, with due regard to the opportunity of the factfinder to assess the credibility of the witnesses, In re Taylor, 158 N.J. 644, 656 (1999), and must affirm even if we would have reached a different result if we are satisfied the evidence and the inferences to be drawn therefrom support the agency's decision, Campbell v. New Jersey Racing Commission, 169 N.J. 579, 587 (2001).

Pursuant to N.J.S.A. 43:16A-7(1), in order to be eligible for accidental disability retirement benefits, an applicant's disability must directly result from a traumatic event. We need not address appellant's challenge to the Board's rejection of the ALJ's finding of a traumatic event because we are satisfied the record supports the Board's determination that Seider failed to demonstrate that his PTSD was the direct result of the November 9, 1998 automobile accident as that term has been interpreted under the case law.

The burden of proving direct result by competent medical testimony rests solely upon the pension claimant. Richardson, supra, 192 N.J. at 194-95. Whether a claimant's disability is the direct result of a traumatic event is necessarily within the ambit of expert medical opinion. Korelnia v. Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 163, 171 (1980). Once the trial court accepts the witness as an expert, "the credibility of the expert and the weight to be accorded his testimony rest in the domain of the trier of fact." Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). A claimant must demonstrate the direct result by showing the traumatic event was "the essential significant or the substantial contributing cause of the resultant disability." Gerba, supra, 83 N.J. at 186. See also Korelnia, supra, 83 N.J. at 170. In Gerba, supra, the Court further explained that "[t]he word 'direct' connotes relative freedom from remoteness, whether in terms of time, intervention of other contributive causes or the like, or a combination of such factors." 83 N.J. at 186 (quoting Titman v. Bd. of Trs., Teachers' Pension & Annuity Fund, 107 N.J. Super. 244, 247 (App. Div. 1969)).

Seider's argument that the November 1998 auto accident is the "essential significant cause" of his disability is not supported by substantial competent evidence in the record as determined by the ALJ who had the opportunity to assess and weigh the credibility of the competing expert witnesses. We discern no basis to second-guess the factfinder's determination that the causation of Seider's PTSD was indistinguishable between the various events he faced throughout his career as a police officer. R. 2:11-3(e)(1)(D). Seider's reliance on Still v. Board of Trustees, Public Employees' Retirement System, 144 N.J. Super. 103 (App. Div. 1976), certif. denied, 73 N.J. 46 (1977), is misplaced. In Still, the medical evidence made it "eminently clear" that the claimant's subsequent injuries were "effects" of the first, primary incident. Id. at 106. Here, however, the medical evidence is not so clear and, in fact, prior to the 1998 car accident, Seider was involved in at least three major events that could be considered the primary cause of his psychological disability.

 
Affirmed.

Based on this determination, the ALJ did not address whether such incident was a traumatic event.

We deem without merit Seider's argument that the Board's direct result analysis is tainted by rejection of the ALJ's finding of traumatic event. R. 2:11-3(e)(1)(E).

(continued)

(continued)

2

A-3993-08T2

February 10, 2010