DAVID FILIPPELLO - 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NOT FOR PUBLICATION WITHOUT THE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-2304-09T3

DAVID FILIPPELLO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

________________________________

April 1, 2011

Submitted: March 21, 2011 Decided:

Before Judges Grall and C.L. Miniman.

On appeal from a Final Agency Decision of theBoard ofTrustees ofthe Policeand Firemen's RetirementSystem, PFRS#3-10-32623.

Arleo,Donohue &Biancamano, L.L.C.,attor neys for appellant (Frank P. Arleo and Jo Ann K. Dobransky, on the briefs).

PaulaT. Dow,Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jobil P. Cyriac, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner David Filippello appeals from the Final Agency Deci sion by the Board of Trustees (the Board) of the Police and Firemen's Retirement System (PFRS), by which the Board denied his applica tion for an accidental disability pension but awarded a regular disability pension. We affirm.

In 2003, petitioner was being treated for back pain, and his chiropractor apparently ordered an MRI to rule out spinal dis ease. The MRI was done in October of 2003, and the film was interpreted as free of herniations. However, there was a loss of normal lordotic curvature due to muscle spasm. In January of 2004, petitioner was assisting paramedics with a patient on the stretcher when the release bar on the stretcher gave way, caus ing petitioner to be pulled forward, straining his back. Peti tioner was further injured in February of 2004 when he was hur riedly exiting his vehicle to pursue a fleeing sus pect. His seat belt caught on his gun holster, wrenching his back.

Petitioner applied for accidental disability pension bene fits, and his application was denied. He appealed, and the Board referred the matter to the Office of Administrative Law as a contested case. The Administrative Law Judge (ALJ) heard tes ti mony from petitioner and two experts, and petitioner's medical records were admitted into evidence.

An MRI performed on March 10, 2004, revealed a "mild decreased signal intensity and loss of height of the L5-S1 disc" with "a central/left paracentral disc herniation which contacts the descending left S1 nerve root." A third MRI performed on April 7, 2005, revealed:

[d]isc desiccation . . . at L5-S1 and . . . mild disc bulging with what may be very tiny subligamentous herniation to the left of midline seen on parasagittal images 30 and 31. This results in very slight thecal sac impression as seen on axial image 61. This may result in the very slight contact with the left L5-S1 nerve root. This is identi fied on parasagittal image 21 and may well account for the patient's clinical symptomatology.

Dr. Nabil Yazgi, a neurologist, testified on petitioner's behalf. He stated that he performed an EMG and nerve conduction study on June 9, 2004. He found S1 radiculopathy on the left.1 The radiculopathy was caused by the disc herniation, which he opined could have been caused by the jerking movement induced by the trapped seat belt. Dr. Yazgi admitted that he did not pro vide continuous, ongoing treatment to petitioner. Rather, peti tioner sought only intermittent care, and there was a gap of over eighteen months during which petitioner did not have any medical treatment or pain management for his back from late 2004 through early 2006. Dr. Yazgi disagreed with the characteriza tion of the herniation in the 2004 MRI report as "slight," urging that contact was contact. Nevertheless, he admitted that back inju ries are a common ailment and that many people have disc herni ations. He also admitted that the limita tions in petitioner's range of motion were minimal and that his lower extremity motor strength was normal. Dr. Yazgi also acknowl edged that peti tioner's psychological ailments, including anxi ety and depres sion "compounded [his] back problems and com pli cated his disabil ity." He further admitted that individuals with psychological ailments can subjectively exaggerate or imagine pain associated with a minor injury.

Andrew Hutter, M.D., an orthopedic surgeon, testified for PFRS. He agreed with the March 10, 2004, report and testified that the herniation was just up against the nerve root and that certain movements would cause pain because of the contact. How ever, the initial inflammatory response would dissipate over time. Further, disc herniation was not compressing the nerve, and the pain should be neither severe nor constant. Addition ally, the thecal sac was not compressed. In sum, the pain would be occasional and sporadic, not constant. He also testified that his physical examination of petitioner revealed normal reflexes and normal range of motion with the exception of the left straight leg raise, which caused some "minimal pain" and was "questionably positive" because it did not extend all the way down the leg. All motor strength exer cises were normal, and he opined that petitioner's injury was neither permanent nor total and certainly not severe enough to warrant any surgical intervention. He explained that back con ditions and herniations are common to a large number of people, but having such a problem did not equate to permanent and total disability.

The ALJ found Dr. Hutter's testimony more persuasive and credible than the testimony of Dr. Yazgi and afforded it greater weight. The ALJ concluded:

[T]he herniated disc at L5-S1 is only touch ing or contacting the nerve root and not compressing it. Dr. Hutter persuasively stressed the significance of the difference between mere contact and compression. His explanation is plausible that a herniated disc compressing the thecal sac and changing its outer contour would cause constant and unforgiving pain; whereas a mere touching, as here, would cause sporadic pain only dur ing certain movements. This analysis as well as the results of the objective tests of both Dr. Hutter and Dr. Yazgi do[es] not sug gest a disabling orthopedic condition which is permanent and total, and I so FIND. In agreement with Dr. Hutter's assessment, [petitioner's] subjective complaints are disproportional to the objective evidence.

Furthermore, the ALJ noted that petitioner had a history of lower back pain prior to these two incidents and that Dr. Yazgi had stated that he recalled petitioner's back pain as being "under control" prior to January of 2004. The ALJ concluded that petitioner did not qualify for an award of accidental dis ability benefits pursuant to N.J.S.A. 43:16A-7. The Board affirmed this determination, and petitioner appealed.

Petitioner urges that the Board's decision should be reversed because the Board relied on the ALJ's decision, "which is contrary to the credible evidence and is not supported by the record." We disagree. "Our function is to determine whether the administrative action was arbitrary, capricious or unreason able." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the find ings of the agency could have been reached on the credible evi dence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The burden of dem onstrating that the agency's action was arbitrary, capricious or unreasonable rests on the person challenging the administra tive action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Petitioner has not met this burden. Although he argues that the ALJ "determined that [p]etitioner's disability was caused by a pre-existing back spasm," he urges that there was no evidence to support this decision. This argument misses the thrust of the ALJ's decision. He found that petitioner had not proven that he has a permanent and total orthopedic disability. Further, the ALJ found that petitioner:

has not sustained his burden of proving that the trauma in 2004 was the direct cause, i.e., the essential, significant or substan tial contributing cause of the dis ability. Instead, regardless of the negative finding of disc herniation in the October 2003 MRI, the evidence supports a determina tion that the essential, significant or sub stantial cause of [petitioner's] back condition predated the 2004 events.

There is substantial evidence to support this conclusion. Petitioner went eighteen full months without any medical treat ment at all. This is entirely consistent with Dr. Hutter's opinion that the herniation found on the MRI would not produce constant, severe, debilitating pain. The MRI in 2003 found petitioner's curvature straightened as a result of muscle spasm, and that continued to be present in the 2004 MRI. Notably, there was only "slight straightening" of the lumbar spine in 2005 when petitioner was not treating for back pain. No legal error is urged nor is any found.

1 He also found moderate bilateral peroneal nerve entrapment at the ankles (anterior tarsal tunnel syndrome), which was usually due to tight boots, occupational running, or excess use of the feet.