JOHN SALVAGGIO - v. POLICE AND FIREMEN'S RETIREMENT SYSTEM -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6211-10T2

JOHN SALVAGGIO,

Petitioner-Appellant,

v.

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

________________________________

Argued April 18, 2012 Decided May 24, 2012

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, Division of Pensions and Benefits, Docket No. PFRS 3-10-40852.

Frank M. Crivelli argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli and Donald C. Barbati, on the brief).

Robert H. Stoloff, Assistant Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stoloff, on the brief).

PER CURIAM

Petitioner, John Salvaggio, appeals from the final administrative decision of the Board of Trustees of the Police and Firemen's Retirement System (the Board). The Board adopted the findings of fact and conclusions of law of the Administrative Law Judge (ALJ), who determined in an initial decision that petitioner's total and permanent disability was not directly caused by an incident occurring in the course of his employment as a lieutenant at a youth correctional facility. We affirm.

I.

Petitioner was hired as a corrections officer recruit by the New Jersey Department of Corrections (DOC) on March 10, 1990. As such, he was a member of the Police and Firemen's Retirement System (PFRS), to which he made mandatory contributions. On July 13, 2009, while working at the Albert C. Wagner Youth Correctional Facility in Bordentown, petitioner was injured when he, along with other officers, responded to a Code 33 alarm, a call for assistance typically involving direct staff assault. X-rays taken later that day revealed petitioner suffered very mild disc space narrowing at L5-S1. He was diagnosed as suffering from a sprain or strain in his lower back and placed on a six-week course of physical therapy. Petitioner was also prescribed pain medication. He returned to work in late August with no restrictions.

On September 22, 2009, as he bent over to tie his shoes while at home, plaintiff experienced back pain as severe as he experienced on July 13. An MRI performed shortly thereafter revealed: (1) "annular bulging at L1-L2"; (2) "neural foraminal bulging at L3-L4, L4-L5[,] with some narrowing of the neural foramina at this level[,] most prominent at L4-L5"; (3) "L5-S1 annular bulging with central annular tear"; and (4) "encroachment and narrowing of the neural foramina at this level, left greater than right."

Petitioner consulted an orthopedic surgeon, Dr. Lawrence Barr, who recommended pain management. Based upon this recommendation, he came under the care of Dr. Adam Sackstein, a pain management specialist. Under Dr. Sackstein's care, petitioner received an epidural injection on November 5, 2009, and a sacroiliac joint injection on November 19, 2009. He returned to Dr. Barr, who discussed treatment options with him that included a possible discogram and surgical intervention. Petitioner did not elect either option but underwent a functional capacity evaluation. The evaluation found that petitioner did not meet the essential criteria to perform his duties as a corrections officer.

On March 18, 2010, petitioner filed an application for accidental disability retirement. On May 26, 2010, he underwent an independent medical examination performed by Dr. Aldo D. Iulo, an orthopedist, who opined that the injuries he sustained on September 22, 2009 were not causally related to the July 13, 2009 incident.

On August 10, 2010, the Board issued its decision. Although finding that petitioner was totally and permanently disabled, it denied his application for accidental disability benefits. Instead, it awarded him ordinary disability retirement benefits. In reaching its decision, the Board stated: "The basis for the Board's denial is that although the event is caused by an external circumstance, the medical documentation provided indicates that your disability is the result of a pre-existing disease alone or a pre-existing disease that is aggravated or accelerated by the work effort."

In a letter dated August 25, 2010, Salvaggio petitioned the Board for a hearing. The Board approved the request and transmitted the matter to the Office of Administrative Law (OAL) as a contested case pursuant to N.J.S.A. 52:14B-1 to -12. The matter was assigned to an ALJ for a hearing. At the hearing, in addition to petitioner, Dr. David Weiss, a board-certified orthopedist, testified on his behalf. The Board presented Dr. Iulo. At the conclusion of the hearing, the ALJ subsequently issued a written decision in which he ultimately concluded "petitioner has not met his burden of proof that the disability was caused by the July 13, 2009 incident."

In determining whether plaintiff's disability was caused by the July 13, 2009 incident, the ALJ weighed the testimony from both experts. Because the two expert witnesses based their testimony on identical undisputed facts, the ALJ acknowledged that assessing the credibility of the two witnesses was critical to resolving the dispute. After reviewing the substance of each expert's testimony, the ALJ found the testimony of Dr. Weiss more credible. Notwithstanding this finding, the ALJ concluded petitioner failed to satisfy his burden to prove that his disability was caused by the July 13, 2009 event.

Petitioner filed exceptions to the initial decision, and on August 8, 2011, the Board met to review the ALJ's decision. After its review of the exhibits, the initial decision and exceptions, the Board adopted the findings of fact and conclusions of law of the ALJ. This appeal followed.

II.

On appeal, petitioner contends the Board's decision adopting the ALJ's recommendation was arbitrary, capricious, and unreasonable, and the Board erroneously adopted the ALJ's conclusion that the disability was not causally related to the July 13, 2009 incident. We disagree.

Once an agency has issued a final decision, "the Appellate Division's initial review of that decision is a limited one." In re Taylor, 158 N.J. 644, 656 (1999). "We will not reverse an agency decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Univ. Cottage Club ofPrinceton N.J. Corp. v.N.J. Dep't of Envtl.Prot., 191 N.J. 38, 48 (2007) (citing Taylor, supra, 158 N.J. at 656).

"The fundamental consideration in reviewing agency actions is that a court may not substitute its judgment for the expertise of an agency so long as that action is statutorily authorized and not otherwise defective because [it is] arbitrary or unreasonable." In re Distrib. ofLiquid Assets UponDissolution of the UnionCounty Reg'l High Sch.Dist. No. 1, 168 N.J. 1, 10 (2001) (citation omitted) (internal quotation marks omitted). If, in reviewing an agency decision, we are satisfied there is sufficient, credible evidence in the record to support the agency's conclusions, we will uphold the decision irrespective of our view that we may have reached a different result on the same set of facts. Taylor, supra, 158 N.J. at 657.

Based upon our review of the record in light of these legal standards, we are satisfied the Board's decision is supported by substantial, credible evidence in the record. We therefore find no basis to disturb its decision.

N.J.S.A. 43:16A-7(1), governing accidental disability benefits, provides:

Upon the written application by a member in service, by one acting in his behalf or by his employer any member may be retired on an accidental disability retirement allowance; provided, that the medical board, after a medical examination of such member, shall certify that the member is 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 and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him.

[N.J.S.A. 43:16A-7(1).]

In construing N.J.S.A. 43:16A-7(1), the Court, in Richardsonv. Board of Trustees,Police and Firemen'sRetirement System, 192 N.J. 189 (2007), held that in order to qualify for accidental disability benefits under N.J.S.A. 43:16A-7(1), a member 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;

4. that the disability was not the result of the member's willful negligence; an[d]

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Id. at 212-13.]

Only the second prong of the Richardson test is at issue here. The ALJ concluded petitioner did not demonstrate his disability was a direct result of the July incident. Petitioner cites Gerbav. Board of Trustees, 83 N.J. 174 (1980), for the proposition that "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 preexisting disease." Id. at 187. However, the Richardson Court held otherwise and framed the inquiry as determining whether "during the regular performance of [the member's] job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member." Richardson, supra, 192 N.J. at 214. Richardson clarifies that "where the disability arises out of a combination of pre-existing disease and work effort, a traumatic event has not occurred." Id. at 211.

Petitioner contends the ALJ's finding that Dr. Weiss was the more credible witness should not have resulted in the determination that petitioner failed to satisfy his burden of proof because Dr. Weiss opined that the July 13, 2009 incident was most likely the cause of petitioner's disability. As such, petitioner maintains the ALJ's finding "flies in the face of reason and fails to comply with the underlying case law." We disagree.

In concluding that Dr. Weiss was the more credible witness, the ALJ was not then obliged to accept all of the opinions he expressed. The weight the trier of fact accords to expert testimony "is within the competence of the fact-finder." LaBracio FamilyP'ship v. 1239 RooseveltAve., Inc., 340 N.J. Super. 155, 165 (App. Div. 2001). Therefore, the fact-finder is free to "accept some of the expert's testimony and reject the rest." State v. M.J.K., 369 N.J.Super. 532, 549 (App. Div.), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005).

It is apparent from the ALJ's conclusions that Dr. Weiss's acknowledgement that petitioner's permanent and total disability could have been caused by factors other than the July 13, 2009 incident, e.g., petitioner's pre-existing degenerative condition or bending over, was more persuasive than his opinion that the prison incident was the more likely cause of the disability. The ALJ expressly noted other undisputed facts that presumably led to his conclusion petitioner fell short of meeting his burden of proof. Those facts included the opinions expressed by petitioner's treating physician, Dr. Barr, that the September 22, 2009 incident caused the disability, petitioner's improved condition following the July 13, 2009 incident, petitioner's return to work without restrictions, petitioner's pre-existing degenerative condition, and the lack of proof that petitioner had a herniated disc or tear prior to September 2009.

Under N.J.S.A. 43:16A-7(1) and Richardson, petitioner has the burden of demonstrating that the July 13, 2009 incident caused his permanent disability, a burden the ALJ concluded petitioner did not meet. "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. StatePolice Training Ctr., 127 N.J. 500, 513 (1992). The testimony, medical records, and the fact that plaintiff returned to work without any restrictions serve as substantial, credible evidence to support the ALJ's decision and the Board's adoption of that decision. Under the prescribed standard of review, we therefore affirm the Board's final decision denying petitioner accidental disability benefits.

A