MICHAEL WASSUTA v. BOARD OF TRUSTEES, POLICE AND FIREMAN'S RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0919-07T30919-07T3

MICHAEL WASSUTA,

Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMAN'S RETIREMENT SYSTEM,

Respondent.

____________________________________

 

Argued November 13, 2008 - Decided:

Before Judges Stern, Lyons and Waugh.

On appeal from the Final Administrative Decision of the Board of Trustees of the Public Employees' Retirement System, Department of Treasury.

Steven J. Kossup argued the cause for appellant (Law Offices of Steven J. Kossup, P.C., attorneys; Mr. Kossup, on the brief).

Kellie L. Pushko, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter A. Garcia, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Michael Wassuta appeals from the final administrative order of the Board of Trustees of the Police and Fireman's Retirement System (PFRS) denying his application for accidental disability benefits. We affirm.

The basic facts as found by the administrative law judge (ALJ) are as follows. Wassuta was born in February 1952. He was employed by the New Jersey Department of Corrections (DOC) from 1990 to 2001 and was a member of PFRS. His last assignment was as a correction officer at the Adult Diagnostic and Treatment Center in Avenel.

Wassuta was involved in three work-related incidents. In December 1995, he tripped on a gun barrel and sustained injuries. In May 1996, he was involved in a motor vehicle accident while riding in a DOC vehicle and sustained injuries. He was out of work for approximately six to eight weeks, returning in October 1996. In October 1999, he applied for disability based on the May 1996 incident. In November 1999, he was injured when firing a shotgun at the firing range. In May 2000, Wassuta withdrew his application for disability. On April 18, 2001, he again filed an application for disability based upon the May 1996 incident.

PFRS referred the matter to the Office of Administrative Law in December 2002. The ALJ determined that: (1) the application for disability benefits was timely filed; (2) the motor vehicle accident of May 1996 was not a "traumatic event"; and (3) Wassuta had not demonstrated that his disability was a direct result of the May 1996 incident.

Wassuta challenged the ALJ's decision before the Board of Trustees of PFRS. The Board adopted the ALJ's decision, including its determination that Wassuta had not met his burden to demonstrate that the disability was a direct result of the May 1996 incident, but with one modification. The Board determined that the May 1996 incident was a "traumatic event," based upon the Supreme Court's then recent decision in Richardson v. Police and Firemen's Retirement System, 192 N.J. 189 (2007). This appeal followed.

This court's review of agency decisions is limited. In re Virtua-W. Jersey Hosp., 194 N.J. 413, 422 (2008). The court "will ordinarily defer to the decision of a State administrative agency unless the appellant establishes that the agency's decision was arbitrary, capricious, or unreasonable, or that it was unsupported by sufficient credible, competent evidence in the record." Green v. State Health and Benefits Comm'n, 373 N.J. Super. 408, 414 (App. Div. 2004) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). As long as the record supports the agency determination, the court should affirm the determination even if it might have reached a different conclusion had it considered the matter de novo. Ibid.

We have considered each of Wassuta's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Wassuta challenges the ALJ's reliance on the testimony of PFRS's medical expert witness, Dr. David Rubinfeld, because he was never asked whether the opinions he offered at the hearing were held to a reasonable degree of medical probability or certainty. There is no doubt that "medical-opinion testimony must be couched in terms of reasonable medical certainty or probability" and that "opinions as to possibility are inadmissible." Johnesee v. Stop & Shop Cos., Inc., 174 N.J. Super. 426, 431 (App. Div. 1980).

Clearly, the better practice is for counsel offering an expert to establish at the beginning of the examination that the opinions given are held to a reasonable degree of probability or certainty in the expert's field of expertise. The question before us, however, is whether the failure to do so requires that the testimony be disregarded. We hold that it does not. Eckert v. Rumsey Park Assocs., 294 N.J. Super. 46 (App. Div. 1996), certif. denied, 147 N.J. 579 (1997).

In Eckert, we reversed a decision in which the trial judge excluded the de bene esse deposition of a witness who had not been specifically asked whether she held her views to a reasonable degree of medical probability or certainty. In doing so, we relied on the decision of the Supreme Court of Connecticut in Aspiazu v. Orgera, 535 A.2d 338 (1987). The Connecticut Supreme Court held that "it was not necessary for the expert to use the 'talismanic' or 'magical words represented by the phrase "reasonable degree of medical certainty"'" and that "what was needed was for the trial court to be persuaded that 'the doctor was reasonably confident of the relationship between the plaintiff's injury and his psychiatric diagnosis and treatment.'" Eckert, supra, 294 N.J. Super. at 51 (citing Aspiazu, supra, 535 A.2d at 343 (internal citations omitted)).

A review of Rubinfeld's testimony reveals that his opinions were not expressed in terms of possibility. He stated quite clearly that his "conclusion regarding causation was that it was not a result of the May 14, 1996 accident," the event which Wassuta and his medical expert attributed the disability. Rubinfeld elaborated on the reasons for his conclusion and was subject to cross-examination.

If petitioner's counsel had chosen to do so, he could certainly have explored the issue of whether Rubinfeld held his opinion to a reasonable degree of medical probability or certainty during cross-examination. He apparently chose not to do so, hoping to have the testimony stricken after the ALJ closed the record. Using the standard articulated by the Connecticut Supreme Court in Aspiazu, and adopted in our opinion in Eckert, we find that the record supports the ALJ's reliance on Rubinfeld's testimony as meeting the required standard. Had Rubinfeld testified in terms of possibility or had his testimony been generally equivocal, however, we would reach a different result.

We see no reason to disturb the ALJ's factual findings. While it is true, for example, that Rubinfeld misstated Wassuta's height and weight during his testimony, that error did not require the ALJ to disregard his substantive testimony. The ALJ had the opportunity to judge Rubinfeld's credibility, as she did the other witnesses. There was "sufficient credible, competent evidence in the record" to support the ALJ's decision that Wassuta did not demonstrate that his disability was a direct result of the May 1996 incident. Green, supra, 373 N.J. Super. at 414.

Affirmed.

Wassuta's counsel acknowledged at oral argument before us that he raised no objection to the testimony until after the record was closed, at which time it was too late to remedy any deficiency.

(continued)

(continued)

7

A-0919-07T3

December 8, 2008