MARK V. GEISLER - v. BOARD OF TRUSTEES PUBLIC EMPLOYEES' RETIREMENT SYSTEM -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3162-09T2

MARK V. GEISLER,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

_______________________________________

April 6, 2011

Submitted March 8, 2011 Decided

Before Judges Yannotti, Espinosa and Skillman.

On appeal from a Final Determination of the Boardof Trustees,Public Employees' Retirement System, PERS #2-10-230609.

Newman & Denburg, L.L.C., attorneys for appellant (Samuel A. Denburg and James S. Raban, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).

PER CURIAM

Mark Geisler (Geisler) appeals from a final determination of the Board of Trustees (Board), Public Employees' Retirement System (PERS), which denied his application for accidental disability retirement benefits pursuant to N.J.S.A. 43:15A-43. We affirm.

Geisler has been employed by the New Jersey Turnpike Authority (Authority) since 1977 in various maintenance jobs in different divisions within the Authority. As a maintenance worker, Geisler's duties included operating heavy equipment such as bulldozers, backhoes, tractor-trailers and front-end loaders.

On September 19, 2002, Geisler was directed to excavate a trench for the installation of computer cable lines in a building in Clifton. As part of this task, Geisler was required to break up pieces of concrete using a seventy-five pound jackhammer. The jackhammer became lodged in the concrete, and Geisler attempted to extricate the machine from the concrete by pulling and twisting the machine. As he was doing so, Geisler heard what he described as a loud "pop" in the area of his right leg and hip.

At around the same time, the jackhammer came loose, and Geisler was propelled backwards about two feet. The jackhammer landed on his leg. Geisler said that he immediately felt sharp pain in his right hip and the inside of his groin, as well as a dull pain in his lower back. Despite the pain, Geisler continued working.

Geisler stated that the following day, the pain was intense. He reported the injury to his supervisor, and completed an injury report in which he identified his affected body parts as the lower back, right leg and groin-to-knee area. The Authority's doctor prescribed medication but, according to Geisler, it did not lessen the pain. Geisler was referred to an orthopedic specialist for further evaluation.

On October 31, 2002, an MRI was taken of Geisler's lumbar spine. The report of the MRI indicated that Geisler had "[d]egenerative spondylosis" of the lower thoracic spine and lumbar spine with mild annulus bulging at the L4-L5 level of the spine, and "considerable degenerative facet joint disease [at] L4-5 and L5-S1." In November 2002, Geisler resumed full work duty.

Geisler was referred to Dr. Mark Hartzband (Dr. Hartzband). He first examined Geisler on July 17, 2003. Dr. Hartzband's treatment notes indicate that Geisler had presented with a history of right hip pain, dating back to the injury sustained on September 19, 2002. Dr. Hartzband noted that Geisler's hip pain was associated with stiffness and a limp, and he could not walk more than three blocks without having to stop due to the pain. X-rays confirmed advanced osteoarthritis of the right hip bone. Dr. Hartzband recommended that Geisler undergo a hip arthroplasty.

Geisler elected not to have the procedure performed at that time, and did not seek further medical treatment until October 2004, when he returned to see Dr. Hartzband complaining of hip pain. The doctor again recommended hip replacement surgery; however, Geisler did not follow up on that recommendation until August 2005, when he returned to Dr. Hartzband. The procedure was scheduled for February 2006.

In October 2005, Geisler saw Dr. Hartzband's partner, Dr. Harlan Levine (Dr. Levine). He complained of increased discomfort. Dr. Levine found that Geisler had a severely restricted range of motion in his hip, and x-rays indicated that the femoral head had lost its spherical shape. Geisler elected to have the surgery earlier, and on November 18, 2005, Dr. Hartzband performed a total right hip arthoplasty on him.

The doctor thereafter found that Geisler had recovered from the procedure and cleared him for a return to full work duty on April 17, 2006. However, on October 31, 2007, Geisler returned to see Dr. Levine and reported discomfort across his lower back, buttocks and posterior thighs, which Geisler attributed to the activities and demands of his job.

Dr. Levine's examination revealed no discomfort in the hips with rotation, reasonably good ambulation but discomfort in the back upon leg raising. Post-hip-replacement x-rays indicated that the hip replacement procedure had been successful.

Dr. Levine noted that Geisler had multiple complaints of pain related to his back, which radiated into his legs. Dr. Levine indicated that Geisler's job was too demanding in view of his prior hip replacement surgery and lower back complaints, and agreed to render a report indicating that he was disabled.

Geisler also saw Dr. Muhammad Mizra (Dr. Mizra) on November 21, 2007. Dr. Mizra opined that Geisler could not perform his usual work activities without severe pain. He stated that Geisler was totally and permanently disabled, but his disability was stable and not progressive.

On November 26, 2007, Geisler submitted an application for accidental disability retirement benefits pursuant to N.J.S.A. 43:15A-43, claiming that he was totally and permanently disabled from the performance of his usual duties as a result of a "traumatic event" that occurred on September 19, 2002. He stopped working on December 31, 2007.

The Board referred Geisler's application to its Medical Review Board (MRB), which determined that Geisler was not totally and permanently disabled from the performance of his usual job duties. The Board thereupon informed Geisler that it had denied his application for accidental disability retirement benefits.

Geisler filed an administrative appeal, and the Board referred the matter to the Office of Administrative Law for a hearing before an administrative law judge (ALJ). The ALJ issued an initial decision in which he found that the incident of September 19, 2002, was a "traumatic event" under N.J.S.A. 43:15A-43.

The ALJ additionally found that he was not totally and permanently disabled as a result of the hip injury sustained on September 19, 2002, because that injury had been successfully treated by the hip replacement surgery. The ALJ further found that while Geisler was totally and permanently disabled by the condition of his back, his disability was not the "direct result" of the September 19, 2002, accident but was instead the result of a degenerative process.

The ALJ therefore concluded that Geisler was not entitled to accidental disability retirement benefits. The ALJ stated that because Geisler did not qualify for those benefits, there was no need to address the question of whether his application had been filed within the time required by N.J.S.A. 43:15A-43.

The Board considered the matter at its meeting of January 20, 2010, and determined that Geisler was not entitled to accidental disability retirement benefits. The Board explained the reasons for its decision in a letter dated January 26, 2010.

The Board rejected the ALJ's finding that the September 19, 2002, accident was a "traumatic event" under N.J.S.A. 43:15A-43 because the incident was not "undesigned and unexpected." However, the Board accepted the ALJ's findings that Geisler was not totally and permanently disabled by the condition of his hip but was totally and permanently disabled by the condition of his back. The Board determined that Geisler's back condition was not the "direct result" of the September 19, 2002, incident. Based on these findings, the Board concluded that while Geisler qualified for ordinary disability benefits, he was not entitled to accidental disability retirement benefits.1

On appeal, Geisler argues: 1) the Board's finding that he was not totally and permanently disabled by his right hip injury was not supported by sufficient credible evidence; 2) the record does not support the Board's finding that his lower-back disability was not a direct result of the September 19, 2002, incident; 3) the Board erred by finding that that he is not totally and permanently disabled as a direct result of the September 19, 2002, incident; and 4) the Board's finding that the September 19, 2002, incident was not a "traumatic event" was erroneous.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown, 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable or that it lacks fair support in the record[.]" Ibid.

Furthermore, an appellate court may not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Ibid. (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

A member of the PERS is entitled to accidental disability retirement benefits if he establishes, by a preponderance of the credible evidence, that he is "totally and permanently disabled as a direct result of a traumatic event[.]" N.J.S.A. 43:15A-43. A "traumatic event" need not be the sole or exclusive cause of a member's disability. Gerba v. Bd. of Trustees, Pub. Emps.' Ret. Sys., 83 N.J. 174, 187 (1980). Rather, "the traumatic event" must be the "essential significant or substantial contributing cause of the disability[.]" Ibid.

We are satisfied that there is sufficient credible evidence in the record to support the Board's finding that Geisler was not totally and permanently disabled as a result of the hip injury sustained on September 19, 2002. Although Geisler's expert, Dr. Arthur Tiger (Dr. Tiger), testified that Geisler was permanently and totally disabled as a result of that injury, the Board's expert, Dr. David Rubinfeld (Dr. Rubinfeld), offered a contrary opinion.

Dr. Tiger was of the view that Geisler's present hip complaints were due to posttraumatic arthritis, which he related to the September 19, 2002, incident. However, Dr. Rubinfeld stated that Geisler's initial hip injury had been successfully treated by the hip replacement procedure, and Geisler's condition thereafter was the result of degenerative rather than posttraumatic arthritis.

The ALJ found that Dr. Rubinfeld's testimony on this issue was more persuasive than that of Dr. Tiger. The ALJ stated:

There is no doubt that Geisler suffered a significant disability to his right hip and endured great discomfort and limitation of movement, motions and gait due to his hip problem until the right hip was replaced on November 18, 2005. The operation was, however, a success. Hartzband removed the arthritic bones and implanted an artificial device that eliminated the adverse effects of the arthritic condition of the hip. When his partner, Levine, examined Geisler in October 2007, and took a new x-ray, he observed a successful procedure with no discomfort in his hips with rotation. The artificial components were well-positioned, aligned, not loose and not worn. He did not observe the Trendelinburg gait problem he had observed before the surgery and found that Geisler was ambulating rather well. The problems Levine did find were with regard to Geisler's complaints of back pain rather than the hip condition. He attributed the leg [raising] problems to his back. Levine noted, "the patient does have multiple complaints mostly related to his back." Rubinfeld also observed Geisler walking on his heels and toes without difficulty, a normal gait without limping and a decent range of motion. Although Tiger observed some limitation in the range of motion of the right hip upon his examination, these observations do not make a compelling case that Geisler is totally and permanently disabled as a result of the hip injury. He is not permanently disabled regarding the hip because the disabling features of his condition were resolved or abated as a result of successful surgery. He is not totally disabled regarding the hip because much of its function has been restored as a result of successful surgery.

The Board agreed with the ALJ's finding on this point, and the record supports the Board's determination.

The record also supports the Board's finding that, although Geisler was totally and permanently disabled by the condition of his lower back, that condition was not the direct result of the September 19, 2002, accident. On this issue, the ALJ wrote:

There is insufficient evidence to prove that Geisler's lower-back condition was a direct result of the September 19, 2002, accident. Notwithstanding Tiger's and Rubinfeld's dispute regarding Geisler's hip condition, as to how long after a traumatic event post-traumatic arthritis can set in (four to five months versus years), the findings of the October 31, 2002, MRI of the lumbar spine, undisputed by either physician, revealed that Geisler already suffered at the time of the accident from "considerable degenerative facet joint disease" or osteoarthritis in his lower back. That joint disease could not therefore have been as a direct result of the accident under either expert's opinion. Additionally, there was only a mild bulging at L4-5 rather than a more serious disc herniation. There was no finding of nerve impingement as a result of the disc bulging. Again, the presence of only a bulging disc, a normal result of the aging process, suggests that Geisler's back condition was not a direct result of the accident but rather the result of a degenerative rather than traumatic process.

The Board agreed. In our view, there is sufficient credible evidence in the record for the Board's finding.

We therefore conclude that the record supports the Board's determination that, because Geisler was not totally and permanently disabled by the hip injury sustained on September 19, 2002, and because the disabling injury to his lower back was not the "direct result" of the September 19, 2002, accident, Geisler was not entitled to receive accidental disability retirement benefits pursuant to N.J.S.A. 43:15A-43. In view of our conclusion, we need not consider whether the September 19, 2002, incident constitutes a "traumatic event" under the statute.

Affirmed.

1 A PERS member who is awarded accidental disability retirement receives two-thirds of his annual compensation in benefits, N.J.S.A. 43:16A-7(2)(b), whereas a member who is awarded ordinary disability benefits receives about forty percent of his final compensation, N.J.S.A. 43:16A-6(2)(b).