BARRY LENNON v. BOARD OF TRUSTEES 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NOT FOR PUBLICATION WITHOUT THE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-0

BARRY LENNON,

Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent.

________________________________________

April 21, 2016

Submitted March 15, 2016 Decided

Before Judges Yannotti and Guadagno.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS No. 3-10-44215.

Law Offices of William B. Hildebrand, L.L.C., attorneys for appellant (Mr. Hildebrand, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas, Deputy Attorney General, on the brief).

PER CURIAM

Barry Lennon appeals from a final determination of the Board of Trustees, Police and Firemen's Retirement System (PFRS), denying his application for accidental disability retirement (ADR) benefits pursuant to N.J.S.A. 43:16A-7(1). We reverse.

I.

We briefly summarize the relevant facts and procedural history. Lennon was employed by the New Jersey Department of Corrections (NJDOC) as a corrections officer at the Albert C. Wagner Correctional Facility, and he was enrolled in the PFRS. As a corrections officer, Lennon had responsibility for the custody and care of the inmates at the facility. His duties included maintaining discipline, escorting and searching inmates, and reporting rule violations. Lennon was expected to control the conduct and behavior of the inmates.

On March 24, 2004, at around 11:00 p.m., Lennon slipped and fell on a wooden staircase leading up to the trailer where the officers' dining room is located. The stairs had been recently constructed, and consisted of four-by-four planks of wood, with no guardrail. There was no lighting in the area. On the evening when Lennon fell, it was raining and the steps were slippery. Lennon injured his left shoulder, neck and face.

On September 14, 2011, Lennon filed an application for ADR benefits. In the application, Lennon stated that he was totally and permanently disabled from the further performance of his duties as a senior corrections officer due to the "limited use of and loss of feeling in [his] left shoulder and arm," inability to raise his left arm past his chest, "neck and back pain," and other reasons. He attributed his disability to the fall on March 24, 2004.

On January 17, 2012, the Board issued a decision on Lennon's application. The Board found that Lennon was totally and permanently disabled from the performance of his job duties, as required by N.J.S.A. 43:16A-7, but concluded that the event that caused his disability was not a traumatic event because it was not "undesigned and unexpected." The Board also noted that N.J.S.A. 43:16A-7(1) provides that an application for ADR benefits must be filed within five years of the traumatic event that caused the disability.

The Board acknowledged that the statute states the application may be filed after the expiration of the five-year period if the late filing is due to the "delayed manifestation of the disability" or "circumstances beyond" the member's control. The Board determined that there was no evidence to justify Lennon's failure to file the application within five years after the event that caused his disability.

The Board denied the application for ADR benefits, but granted Lennon ordinary disability benefits. Thereafter, Lennon filed a motion seeking reconsideration of the Board's decision. The Board denied the motion. Lennon then filed an administrative appeal with the Board, which referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

II.

At the hearing, Lennon testified that after his fall on March 24, 2004, he was sent to the hospital. He was released and remained out of work until December of 2004, when his treating doctor cleared him to return to work full time without any restrictions. Lennon said that after he returned to work, he continued to see doctors in relation to the injuries he sustained on March 24, 2004.

On May 12, 2006, Dr. Gerald Hayken of Burlington County Orthopedic Specialists (BCOS) performed surgery on Lennon's left shoulder. After the surgery, Lennon remained out of work until October 26, 2006. Dr. Hayken had cleared Lennon to return to full time employment with no restrictions.

Lennon testified that he continued to see Dr. Hayken after he returned to work. According to Lennon, Dr. Hayken thought that he should be assigned to "light duty." However, the NJDOC informed Lennon that there was no light duty in corrections. Lennon was told to return to Dr. Hayken, and Dr. Hayken should either put him out of work or he would be assigned to full duty. Lennon continued to work full time until.

Lennon testified that in 2011, after undergoing x-rays and MRIs, Dr. Hayken tried to have him assigned to light duty. The NJDOC again informed Lennon there was no light duty in corrections. He was told "to go back" to Dr. Hayken. Lennon said Dr. Hayken told him that because light duty was not an option, he "[could] not return to work as a corrections officer."

Lennon further testified that on June 13, 2011, he saw Dr. Ralph G. Cataldo, who opined that Lennon was "totally and permanently disabled" from the performance of his duties as a corrections officer. According to Lennon, prior to 2011, none of his doctors had used those words in reference to his condition.

Lennon's last day of work was July 26, 2011. Until that day, Lennon continued to work without restrictions. On September 14, 2011, Lennon filed his application for ADR benefits.

On cross-examination, Lennon testified that he experienced pain, numbness, and tingling in his left arm every day following his fall. He stated that in 2007, the pain caused him difficulty with tasks such as putting on a shirt, holding his children, and "cuffing" inmates at work. He also stated that from 2004 on, his doctors occasionally would keep him out of work for a few days.

In addition, Lennon also stated that he failed to pass his required annual firearms qualification twice, after his absence from work in 2004 and again after his surgery in 2006. Lennon had to take remedial training before qualifying. Lennon indicated that he experienced some pain in his arm and shoulder after the fall, but he continued to work full time without any restrictions, and hardly missed any time until August, 2011.

Lennon did not present any expert medical testimony at the hearing; however, medical reports from Lennon's treating and evaluating physicians were introduced into evidence. Dr. Benjamin I. Smolenski, an orthopedic surgeon at BCOS, issued a letter dated on March 29, 2004, a few days after Lennon's fall. The doctor indicated that he did not see a "definite fracture line" but noted that there appeared to be a "calcified mass" over Lennon's left shoulder. Dr. Smolenski opined that Lennon's injury was "causally related" to the accident.

On July 22, 2004, Dr. Smolenski noted that Lennon had returned for a follow-up visit and continued to complain of neck and shoulder pain with "intermittent stiffness." On August 24, 2004, Lennon returned to see the doctor and indicated that his neck and shoulder symptoms were "slightly better." Dr. Smolenski noted that Lennon had "significant pre-existing disease" and the condition of his neck had been aggravated by the accident. The doctor indicated that Lennon would have additional physical therapy.

On September 28, 2004, Lennon returned to see the doctor. Dr. Smolenski noted that Lennon was complaining of "severe numbness and tingling in his left arm." The doctor indicated that Lennon showed no overt weakness but his symptoms were continuing despite "aggressive conservative management." The doctor referred Lennon to Dr. Orin Atlas, a spine specialist in BCOS.

On October 13, 2004, Dr. Atlas issued a letter in which he stated that he had evaluated Lennon for persistent pain and paresthesias in his left arm, which Lennon said had been going on for "a while" and had been "constant" in the previous six weeks. Dr. Atlas wrote that Lennon's MRI showed evidence of spondylitic disease in the cervical spine, and he wanted to start Lennon on physical therapy "for cervical isometrics, trapezial strengthening and gentle traction." He stated that it would also be reasonable "to have a trial" of cervical epidural steroid injections.

Furthermore, in a note dated December 1, 2004, Dr. Atlas wrote that Lennon was under his care and not able to work until further evaluation on December 15, 2004. At that time, the doctor noted that Lennon received an epidural steroid injection, and was continuing with physical therapy. Lennon reported "slight cramping in his left arm" and dysesthesias, but his symptoms had "significantly diminished." The doctor stated that Lennon would continue to have physical therapy and another steroid injection.

As noted, Lennon's doctors had cleared him to return to work on December 16, 2004. However, on December 27, 2004, Lennon returned to see Dr. Atlas and reported that he had recently had severe pain in his neck and posterior triceps. The doctor said Lennon should have another epidural steroid injection. Lennon had the injection but on January 5, 2005, reported severe neck pain.

Dr. Atlas recommended a repeat MRI to rule out any infection as the source of the increased pain. On January 26, 2005, Lennon reported continuing significant pain in his trapezius and upper arm. He told Dr. Atlas he could no longer tolerate the symptoms. An EMG report indicated that Lennon was suffering from chronic cervical radiculopathy, "left worse than right." The doctor recommended further diagnostic tests.

In March 2005, Dr. Atlas noted that Lennon had returned for a follow-up visit with complaints of pain in his neck and trapezius. According to Dr. Atlas, Lennon reported that he was having "difficulty holding inmates" at work, but he continued to work full time. In April 2005, Lennon told Dr. Atlas that he had numbness in the left arm two or three times a day. In October 2005, Dr. Atlas noted that Lennon continued to complain of numbness and pain in his left arm.

At some point, Lennon filed a claim seeking workers' compensation benefits for the injuries sustained on March 24, 2004, and in November 2005, Lennon was evaluated by Dr. Cataldo, apparently in connection with that matter. According to Dr. Cataldo, Lennon reported, among other complaints, pain in his neck, left trapezius, and left arm; stiffness in the neck in the morning; weakness in the left arm when reaching overhead; numbness in the left hand when gripping and squeezing; and pain and stiffness in the left shoulder.

Dr. Cataldo opined that, as a result of Lennon's work-related accident, he had a 30% permanent partial total disability of the cervical spine, with cervical sprain and strain "superimposed on the pre-existing cervical sprain and strain." The doctor also found that Lennon had a 45% permanent partial total disability based on the residuals of the sprain and strain of the left shoulder, acromion fracture, with "marked loss of range of motion."

The record also includes Dr. Hayken's progress notes regarding Lennon's appointments and treatment in 2006. In January 2006, Dr. Hayken noted that Lennon had a great deal of weakness in his left shoulder, which was accompanied by pain. In February 2006, after an MRI study of the shoulder, the doctor indicated that Lennon's symptoms were "consistent with impingement." In April 2006, Lennon reported to Dr. Hayken that his joints and rotator cuff were tender and he had "limited motion secondary to pain."

Dr. Hayken recommended surgery to correct Lennon's impingement syndrome and Lennon agreed to undergo the procedure. On May 12, 2006, Dr. Hayken performed an open acromioplasy and distal clavicle resection on Lennon's left shoulder.

In the months that followed, Lennon reported some progress, and in September 2006, Dr. Hayken noted that Lennon had reached the maximum benefit from physical therapy. Dr. Hayken wrote that Lennon still had "an impingement sign" and he was willing to try to return to work, but he would be "unable to do any over the head activities." In October 2006, Dr. Hayken wrote that Lennon wanted to return to work. The doctor stated, however, that "realistically this is not going to happen with his shoulder in its present condition." He recommended a Functional Capacity Evaluation (FCE).

On October 26, 2006, Lennon returned to see Dr. Atlas following the FCE. Dr. Atlas noted that, according to the FCE, Lennon was capable of "medium to heavy category work, occasional lifting and work up to [seventy-five] pounds." The doctor indicated, however, that Lennon's job was "somewhat unpredictable in that he may need to strenuously interact with inmates, or defend himself." Dr. Atlas wrote that, at that point, he did not believe Lennon could "do that." The doctor thought Lennon could return to work safely but noted that he did not have a formal job description for Lennon.

Following another evaluation in February 2007, Dr. Cataldo found that Lennon's permanent partial total disability to his left shoulder had increased to 55%. In March 2007, Lennon's workers' compensation claim was settled. The order of the Division of Workers' Compensation dated March 30, 2007, found that Lennon had a 33 1/2% permanent partial total disability to the left shoulder, plus a disc bulge of the cervical spine. The order apportioned 25% of the permanent partial total to the left shoulder, and 8 1/3% to the neck, with a 5% credit for the pre-existing neck injury.

In May 2009, Dr. Cataldo issued another report, finding that Lennon had a 50% permanent partial total disability to the cervical spine and an 85% permanent partial total disability to his left shoulder. Dr. Cataldo did not, however, opine that Lennon was totally and permanently disabled from the performance of his duties as a corrections officer.

It appears that sometime later, Lennon reopened his workers' compensation claim, and in June 2011, he was evaluated by Dr. Cataldo. The doctor again found that, as a result of the work-related accident, Lennon had a 50% permanent partial total disability of the cervical spine, and an 85% permanent partial total disability of the left shoulder. The doctor opined that Lennon was totally and permanently disabled from his occupation as a corrections officer as a result of the injuries sustained on March 24, 2004.

In 2011, the Division of Workers' Compensation filed an order approving a settlement of the reopened claim. The order stated that Lennon had a 40% permanent partial total disability of the left shoulder, with orthopedic residuals of a disc bulge in the cervical spine. The order apportioned 37 2/3% of the disability to the shoulder, and 2 1/3% to the neck.

III.

The ALJ issued an initial decision dated October 21, 2014. The ALJ noted that the Board had previously determined that Lennon was totally and permanently disabled from the performance of his regular or assigned duties as a corrections officer, and no one disputed that Lennon's disability was the result of his fall on March 24, 2004. The ALJ disagreed with the Board's earlier conclusion that the incident did not qualify as a traumatic event. The Board had found that the event was not "undersigned and unexpected" but the ALJ found that Lennon's slip and fall on the dark, wet, newly-constructed stairway met that standard.

The ALJ concluded, however, that Lennon had not filed an application for ADR benefits within five years of the traumatic event, as required by N.J.S.A. 43:16A-7(1), and Lennon had not presented sufficient evidence to show that the late filing was "due to a delayed manifestation of the disability or to other circumstances beyond" his control. Ibid. The ALJ noted that Lennon had testified he had been in pain since March 24, 2004, and the pain never improved, even with surgery. Moreover, Lennon's pain had progressed over time.

Even so, Lennon did not file his application for ADR benefits until 2011. The ALJ noted that although Lennon claimed he did not know he was totally and permanently disabled until Dr. Cataldo rendered that opinion in June 2011, and Dr. Hayken put him out of work in July 2011, no medical expert testified "as to the nature of [his] condition, or [provided] an opinion on when [he] became disabled."

The ALJ stated that there was no evidence that Lennon's condition changed in 2011, which would warrant a finding that his disability did not manifest itself until that time. The ALJ wrote, "It is clear that [Lennon] was disabled when he filed for disability in 2011, and that is why the [Board] granted ordinary disability, but there is no testimony to establish when the disability initially manifested." The ALJ concluded that the Board's initial denial of Lennon's application for ADR benefits should be affirmed. Lennon filed exceptions to the ALJ's decision.

The Board issued its final decision on December 9, 2014. The Board adopted the ALJ's findings of fact and conclusions of law and again denied Lennon's application for ADR benefits. This appeal followed.

IV.

On appeal, Lennon argues that the Board erred by denying his application. Lennon contends that he was not totally and permanently disabled during the period of time he continued to work without restrictions. He argues that the Board should have considered his application because the late filing was due to the delayed manifestation of his disability. Lennon further argues that the ALJ and the Board erroneously focused on the date of the injury rather than the date upon which he was declared totally and permanently disabled. He contends that the ALJ and Board's decisions are contrary to the purpose and policy of New Jersey's disability laws.

Initially, we note that the scope of our review of a final decision of an administrative agency is limited. George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. Our review is limited to considering

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]

When reviewing an agency's decision, the court must give "substantial deference to the agency's expertise and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 (2007) (citation omitted). Moreover, we must give substantial deference to "an agency's interpretation of a statute that [it] is charged with enforcing." Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 420 (2009) (internal quotation marks and citations omitted). However, we are not bound by the agency's decision on a question of law. Thurber v. City of Burlington, 191 N.J. 487, 502 (2007).

N.J.S.A. 43:16A-7(1) provides in pertinent part that a member of the PFRS

may be retired on an [ADR] 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 any other available duty in the department which his employer is willing to assign to him. The application to accomplish such retirement must be filed within five years of the original traumatic event, but the [Board] may consider an application filed after the five-year period if it can be factually demonstrated to the satisfaction of the [Board] that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member.

In Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007), the Court held that in order to obtain ADR benefits, the member must establish

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; and

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

Here, the Board initially determined that Lennon did not qualify for ADR benefits because, while he was totally and permanently disabled as a result of an incident that occurred during and as a result of his regular and assigned duties, the incident was not a traumatic event because it was not "undesigned and unexpected." However, the Board ultimately found that Lennon met the qualifications for ADR benefits under the Richardson test.

The Board nevertheless concluded that Lennon's application must be denied because it was not filed within the five years after the traumatic event, as required by N.J.S.A. 43:16A-7(1), and Lennon had not shown that the late filing was due to the delayed manifestation of the disability or circumstances beyond his control. Lennon argues that the record does not support the Board's conclusion.

"As used in N.J.S.A. 43:16A-7(1), 'manifestation' relates to the 'disability.'" Hayes v. Bd. of Trs., Police & Firemen's Ret. Sys., 421 N.J. Super. 43, 52 (App. Div. 2011). Furthermore, "[s]omething is 'manifested' when it becomes '[c]learly apparent to the sight or understanding," when 'show[n] or demonstrate[d] plainly.'" Ibid. (quoting Webster's II New College Dictionary 665 (1995)). In addition, the term "manifest" is synonymous with "obvious", and the word "manifested" means "revealed." Ibid.

In this matter, it is undisputed that Lennon sustained injuries to his neck and shoulder on March 24, 2004. He was out of work until December 2004, when he returned to work without restrictions. Lennon's medical records show that thereafter, he continued to experience pain in his shoulder and neck, but continued to work as a corrections officer on a full time basis, without any restrictions. In May 2006, Lennon had surgery on his left shoulder and was out of work until October 2006. He was again cleared to return to work without restrictions.

We note that in October 2006, Dr. Hayken expressed some doubt as to whether Lennon could perform his usual duties as a corrections officer due to the condition of shoulder. At that time, Dr. Atlas also wrote that he thought Lennon could not "strenuously interact" with inmates, but he noted that he did not have Lennon's job description. However, at that time, neither Dr. Hayken nor Dr. Atlas opined that Lennon was totally and permanently disabled from performing the duties of a corrections officer.

Moreover, according to Lennon, in late 2006, when he was prepared to return to work, Dr. Hayken thought that he should be assigned to light duty, but the NJDOC informed Lennon there was no light duty for corrections officers. Lennon returned to work on a full time basis, without any limitations. Lennon continued to perform his duties as a corrections officer until June 2011, when Dr. Cataldo issued his opinion that Lennon was totally and permanently disabled from the performance of his job duties.

We note that Lennon's medical records reflect that his symptoms worsened in the period between 2007 and 2011. Indeed, in May of 2009, Dr. Cataldo found that Lennon had a 50% permanent partial total disability of the cervical spine, and an 85% permanent partial total disability of the left shoulder. However, at that time, Dr. Cataldo did not opine that Lennon was totally and permanently disabled. He rendered that opinion in 2011. We are convinced that, based on the evidence presented, Lennon's total and permanent disability did not manifest within five years after the traumatic event of March 24, 2004, and he first became aware that he was totally and permanently disabled in 2011, when Dr. Cataldo rendered that opinion.

Lennon was obligated to file his claim for ADR benefits in a reasonable time after the manifestation of his disability. In re Crimaldi, 396 N.J. Super. 599, 606 (App. Div. 2007). Under the circumstances, it was not unreasonable for Lennon to wait until Dr. Cataldo had rendered his opinion that he was totally and permanently disabled before submitting an application for ADR benefits. We therefore conclude that the Board erred by rejecting Lennon's application as untimely.

Our decision in Hayes supports our conclusion. Hayes, supra, 421 N.J. Super. 43. In that case, Hayes was a police officer who applied for ADR benefits based on post-traumatic stress disorder triggered by her response to a domestic violence call in December 2001, during which another officer was injured. Id. at 45, 47. Upon arriving at the scene, Hayes discovered that the wounded officer was her younger brother, who had been shot in the face and neck. Id. at 47. Hayes believed her brother would die, and she tried to comfort him; however, her brother survived. Ibid.

Following this incident, Hayes took a leave of absence for about three weeks and received counseling. Id. at 47-48. Following her return to work, Hayes was initially assigned to administrative work but she later resumed her normal duties. Id. at 48. Although Hayes continued to experience anxiety and insomnia, she carried out her usual duties. Id. at 48.

In September 2006, Hayes was reprimanded for a relatively inconsequential incident, which caused her to cry uncontrollably. Ibid. Her gun and badge were taken and she was placed on indefinite leave. Ibid. In May 2007, Hayes's doctor recommended against her continued employment as a police officer, and she was terminated. Id. at 49.

In July 2007, Hayes filed an application for ADR benefits. Ibid. The Board concluded that the application was untimely, relying primarily on the fact that Hayes had stopped working in September 2006, which was less than five years after the traumatic event involving her brother. Id. at 52. We reversed, noting that the Board had ignored a "critical finding of the ALJ" that between September 2006 and early 2007, Hayes had been in treatment and "could not yet know whether she would recover sufficiently to return to duty." Ibid. (internal quotation marks omitted).

We concluded that it was not until May 2007, after Hayes obtained treatment that was unsuccessful, and it was recommended that she not return to work, "that it became apparent to [Hayes] and her employer that she had become permanently disabled." Ibid. We observed that the "critical fact is when the [claimant] 'knew or should have known that he was totally and permanently incapacitated from his duties.'" Id. at 54 (quoting Crimaldi, supra, 396 N.J. Super. at 605).

The facts in Hayes are similar to the facts in this case. Following his injury, Lennon had treatment for the injuries sustained on March 24, 2004, including surgery to his left shoulder. He continued to experience pain, but returned to work full time without any limitations. The medical records show that, despite further treatment, his condition worsened.

Even so, Lennon continued working on a full-time basis. It was not until June 2011, when Dr. Cataldo issued his report that Lennon was aware he was totally and permanently disabled from the performance of his duties as a corrections officer. Lennon filed his application for ADR benefits within a reasonable time thereafter.

We reject the Board's conclusion that Lennon's disability manifested within five years after the traumatic event on March 24, 2004, and he was required to file his application for ADR benefits in that time. As we have explained, in that five-year period, Lennon suffered pain from the injuries he had sustained but he continued to work full time and no doctor opined that he was totally and permanently disabled from the usual performance of his duties as a corrections officer. Thus, it would have been premature for Lennon to file a claim for ADR benefits within five years after the traumatic event.

We also reject the Board's finding that Lennon failed to present sufficient competent evidence to show that his disability did not manifest within five years after the March 24, 2004 traumatic event. Here, the ALJ observed that Lennon had not presented any medical testimony which specifically identified when the disability manifested.

We note that, at the hearing, counsel for the PFRS objected to the introduction of Lennon's medical records, because counsel could not cross examine the physicians who created those records. However, the ALJ admitted Lennon's medical records, and stated that if the PFRS wanted to present its own medical testimony, it could do so. The PFRS presented no medical testimony at the hearing.

The rules of evidence do not apply in administrative matters, except as otherwise provided by the rules that govern contested case hearings conducted by the OAL. N.J.A.C. 1:1-15.1(c). Hearsay is admissible in such cases and this evidence "shall be accorded whatever weight the judge deems appropriate taking in to account the nature, character and scope of the evidence, the circumstances of its creation and production, and generally, its reliability." N.J.A.C. 1:1-15.5(a).

Although hearsay is admissible in administrative proceedings, "some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness." N.J.A.C. 1:1-15.5(b). See also Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 393 N.J. Super. 524, (App. Div. 2007) (holding that written statements of an administrative analyst were hearsay but admissible in the administrative hearing and corroborated the unrebutted testimony of retiree as to the advice the agency had given to him).

Here, Lennon's medical records were admissible in this proceeding, even though those records included hearsay. There was no indication that the statements in the records were not reliable. Moreover, the records corroborated Lennon's unrebutted testimony that until June 2011, his treating and evaluating doctors had not determined he was totally and permanently incapacitated from the performance of his job duties.

The Board argues that it was denied the opportunity to question the doctors to determine why Lennon was returned to full-time work despite his continued complaints of pain. However, regardless of the reasons, Lennon's doctor cleared him to return to work on a full time basis, without limitations, and he continued to perform his job duties until July 2011, after it was determined he was totally and permanently disabled from the performance of those duties.

The Board also asserts that it was denied the opportunity to determine when the doctors determined Lennon was totally and permanently disabled, but the answer to that question can be found in the medical reports. That determination was not made until June 2011.

Reversed.