RAYMOND JOSEPH FOSTER, III 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NOT FOR PUBLICATION WITHOUT THE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-5666-07T25666-07T2

RAYMOND JOSEPH FOSTER, III,

Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent.

__________________________________________

 

Submitted August 12, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the final decision of the Board of Trustees, Police and Firemen's Retirement System, PFRS #3-10-35600.

Gaylord, Rubinstein & Popp, attorneys for appellant (Samuel M. Gaylord, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Don E. Catinello, Deputy Attorney General, on the brief).

PER CURIAM

Raymond Joseph Foster, III, a member of the Police and Firemen's Retirement System (PFRS), appeals from the final decision of the Board of Trustees (Board), upholding the May 5, 2008 initial decision by Administrative Law Judge (ALJ) Jeff S. Masin, finding that Foster "has failed to meet his burden to prove that the total and permanent disability from which he suffers is the direct result of the injuries received in the traumatic event [Foster suffered on March 5, 2002]." We affirm.

These are the salient facts. Foster started working as a Bordentown Township police officer in February 1998. On March 5, 2002 at 9:51 p.m., Foster was injured in a motor vehicle accident, while working as a police officer. The police report indicates that this was a one-vehicle accident. Foster was responding to the ACME supermarket. As he entered the parking lot, he turned right, but missed the entrance and struck a light pole to the left of the entrance. At the time, Foster was thirty-seven years old.

Immediately after the accident, he experienced neck and back pain. Foster was taken to the emergency room of Helene Fuld Hospital. He was examined and X-rays were taken. Thereafter, he was seen by a neurologist and an MRI of his lower back was taken. Foster was diagnosed with a ruptured disc at L4-5. He was given pain medication and a neck brace. He had no prior history of back pain.

More than four years later, in September 2006, Foster stopped working. It is undisputed that Foster is now totally and permanently disabled. He is unable to perform his work duties. Foster applied to the Board for accidental disability retirement benefits. The Board denied the application on the grounds that Foster's disability was not a direct result of the automobile accident, thus he did not qualify for accidental disability benefits.

Foster challenged this decision. The matter was transferred to the Office of Administrative Law as a contested case. Foster testified that he served as a Sheriff's Officer for two years before becoming a Burlington County Bordentown patrolman. Foster is 6'3" tall and weighs 290 pounds. Prior to the automobile accident, he had no difficulty performing his job.

After the accident, Foster was treated for one-and-one-half to two months for the pain in the lower back, neck and head. His treatment included physical therapy, stretching and moist heat. He went back to work as a patrolman but was in "constant pain," in the lower back, with pain down both legs, which he had first experienced right after the accident. While he was able to work with discomfort, he did have difficulty sitting in a patrol car and standing for long periods of time, such as in a courtroom or on a post. He experienced numbness from the knee to his foot. He began to miss work sporadically. Traction was utilized to try to pull his disc away from the nerve upon which it was impinging.

In September 2006, he stopped working, as he could no longer tolerate the pain, which had become more constant and by about February 2006, had become "excruciating." Since September 2006, he has seen Dr. Goldstein, an orthopedic surgeon, and received physical therapy.

Foster could not recall how the accident had occurred. He only remembered that he was making a right turn and the next thing he recalls is "coming to." He knows that his vehicle struck a telephone pole.

Besides Foster, two witnesses, both experts, testified at the hearing. Ralph B. Cataldo, D.O., an osteopath who specializes in pain management, testified for Foster. He examined Foster on two occasions, eleven months after the accident and then seven months later. A CT scan of the cervical spine revealed widening of the C4-5 foramen, probably developmental. A March 20, 2002 MRI of the lumbar spine showed herniated nucleus pulpous L4-5 left with bulging annulus L5-S1 and disc degeneration at both levels. The physical examination revealed muscle spasm and tenderness of the posterior cervical musculature and both trapezii muscles. There was a reduced range of motion. Flexion was thirty degrees, normal is forty-five. Extension was twenty-five degrees, normal is forty-five. Rotation was bilaterally fifty degrees, sixty is normal. Side bending was bilaterally thirty-five degrees, forty-five normal. All motions were painful. Muscle spasm and tenderness of the paravertebral musculature and interspinous tenderness were appreciated at the L4-5 and L5-S1 interspaces. Leg raising in the supine position was limited, with straight leg raising through fifty-five degrees on the right and sixty-five on the left, while the normal range would be ninety degrees.

Foster complained of back pain without radiation. The Bragard's sign was positive on the right. In the erect position, flexion was fifty degrees, ninety is normal, extension fifteen, thirty is normal, rotation fifteen, thirty is normal, and side bending, bilaterally fifteen degrees, thirty is normal. Again, all motions were painful.

Based on his review of the history, medical records and his examination, Dr. Cataldo opined that Foster had a cervical sprain and strain and disc herniations at L-4-5 and a bulging annulus at L5-S-1 with right sciatic neuralgia. He also opined to a reasonable degree of medical certainty, that the cause of Foster's condition was the March 5, 2002 accident. This opinion was based upon: the lack of prior history of back or leg problems; the immediate onset of pain after the accident; the history of treatment following the accident; and the objective findings of the March 20, 2005 MRI of the lumbar spine.

Significantly, Dr. Cataldo acknowledged the presence of disc degeneration. He explained that this condition is expected for anyone thirty-two years of age. But this degeneration was, and is, not the cause of Foster's disability. Cataldo had not seen the films himself.

Gregory Maslow, M.D., a neurosurgeon, specializing in problems of the spine, testified for the Board. He diagnosed Foster as having a lumbar sprain with lumbar disc herniations (rupture of the intervertebral disc) and lumbar radiculitis, with pain to the buttock, thigh or leg, and a cervical sprain with cervical disc herniation. Maslow testified to Foster's disability regarding the lumbar injury only. He concluded that the accident was only part of the cause of his findings; and that the majority of his findings were related to degenerative disc disease at multiple levels in the lumbar spine. Dr. Maslow was presented with an inquiry by the Board, i.e., "whether the patient would have been able to perform duties of a police officer in 2005 if he was not involved in an accident on 3/5/02? The additional question was what percentage of disability was caused by the accident, what percent degenerative in nature." To this he responded that:

(1) [G]iven the multiple levels of degenerative disc disease identified on MRI of the lumbar spine it is unlikely that the patient would be able to perform full duties of a police officer in the year 2005 regardless of the accident related injury of 3/5/02.

(2) It is my opinion that 75% of the disability at the lumbar spine is caused by degenerative disease and 25% causally related to the incident of 3/5/02.

Maslow reviewed the different MRI studies. He found that the MRI study performed on March 20, 2002, fifteen days after the accident, showed a disc herniation to the left side at L4-5 and a bulging annulus at the L5-S1 level and disc degeneration at both levels. Later studies indicated some progression in the degenerative processes. The April 9, 2004 MRI study found a small central disc herniation and degenerative disc changes at L1-2, L4-5 and L5-S1. He also noted facet joint arthropathy, degenerative changes noted at all five levels of the lumbar spine. A November 11, 2006 MRI study reported a developmental generalized small bony spinal canal (a narrowed canal which is not related to aging, but is of developmental origin), peripheral stenosis (degenerative narrowing of the corner where nerve tissue exits the spine) at L1 through S1 with multiple bulging annuli and disc osteophyte complex (degeneration causing a bony change resulting in a spur and with a bulging of the disc as well) at L5-S1.

Based on these objective tests, Dr. Maslow opined that disc bulging is "always" a degenerative change. Medical literature, of which he has knowledge, does not show bulging being caused by trauma. These bulges are common. People who have them do not necessarily have pain. Maslow concluded that the weight carried by Foster might be a contributing factor to his degenerative condition. Indeed, in the absence of other factors to explain what Maslow saw as a rather rapid degeneration, weight had to be a "considerable factor."

Although the 2002 accident caused some injury, the worsening of his pre-existing condition over time was what had disabled him by 2006. The herniation at L4-5, while affecting the shock absorbing function of that disc, would not be the cause of the degeneration of other levels. In fact, by 2006 the herniation was gone, probably due to the drying up of the disc material that had "retracted."

ALJ Masin found that Foster's application should be denied, concluding that Foster's present disability is not the direct result of the accident. The ALJ found that Dr. Maslow's view of the facts was more persuasive than Dr. Cataldo's, holding that:

[t]he progression of degeneration here is quite significant. It cannot be easily dismissed as something "normal," in the sense, that is, of the sort of degeneration from which we all suffer, a degeneration that "might" eventually have caused enough difficulty for Foster to disable him. Here, the more persuasive evidence is that it not only might have, but it in fact did, disable him, and while the difficulties he suffered from the injury incurred at the time of the accident are not minimized, I FIND that the more credible position is that expressed by Dr. Maslow.

. . .

The burden of meeting the criteria for an accidental disability pension rests with the applicant. Thus, it is for Foster to prove that the accident was the essential significant or substantial contributing factor to his disability. While there is no doubt that the accident and resultant herniation did cause a period of disability and that its effects did continue to trouble Foster for some time, in the end the ever increasing pain and restriction on movement that doomed his career as a police officer is more reasonably attributed, as Dr. Maslow credibly related, to the accelerated degeneration of his lumbar spine, including at several areas that were not affected by the accident.

For the reasons noted, I CONCLUDE that Mr. Foster has failed to meet his burden to prove that the total and permanent disability from which he suffers is the direct result of the injuries received in the traumatic event. Therefore, his application for an accidental disability pension must be DENIED.

On appeal, Foster contends that the decision is not supported by the evidence. We disagree.

The right to accidental disability retirement benefits in PFRS is set by N.J.S.A. 43:16A-7, which provides that a member in service is entitled to such benefits when the member is totally permanently disabled as a direct result of a traumatic event which occurred during and as a result of the member's regular duties. N.J.S.A. 43:16A-7(1). An agency's final decision shall be upheld "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 N.J. 215, 223-24 (2009) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). Thus, our standard of review of an administrative agency findings is a limited one. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). If the findings of the administrative agency are based on credible evidence as viewed from the totality of the record, then the agency decision should be sustained. Gerba v. Bd. of Trs., 83 N.J. 174, 189 (1980). However, findings that are not supported by the proofs will be disregarded by us. McGee v. Bd. of Tr., 45 N.J. 576, 579 (1965).

Here, based on our careful review of the record, we conclude that the Board's findings are supported by the proofs. Therefore, we determine that the Board's decision is supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D).

 
Affirmed.

This is a test for peripheral or nerve root irritation of the sciatic nerve.

(continued)

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A-5666-07T2

October 13, 2009