IN THE MATTER OF PAMELA THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4126-09T4

IN THE MATTER OF PAMELA

THOMAS.

________________________________________________________________

March 14, 2011

Argued February 14, 2011 - Decided

Before Judges Lisa and Reisner.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, Docket No. 3-10-36721.

FrankM. Crivelliargued thecause for appellantPamela Thomas(Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli, on the brief).

Jobil P. Cyriac, Deputy Attorney General, argued the cause for respondent Board of Trustees, Police and Firemen s Retirement System(Paula T. Dow, Attorney General, attorney;Melissa H.Raksa, Assistant Attorney General, of counsel; Mr. Cyriac, on the brief).

PER CURIAM

Appellant, Pamela Thomas, appeals from the April 13, 2010 final decision of the Board of Trustees of the Police and Firemen's Retirement System (Board) denying her application for accidental disability retirement benefits. Appellant, a corrections officer at the Juvenile Justice Commission (JJC), sustained two work-related injuries to her left knee, one on June 12, 2003, and the other on November 18, 2006. The Administrative Law Judge (ALJ) found that the 2003 incident constituted a "traumatic event" as defined in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), but that the 2006 incident did not. The Board agreed with those determinations. However, the Board rejected the ALJ's further determination that appellant was totally and permanently disabled as a "direct result" of the 2003 accident and entitled to accidental disability.1

We are satisfied from our review of the record that the Board's findings and conclusions are supported by substantial credible evidence, are not arbitrary, capricious or unreasonable, and accord with the controlling legal principles. We therefore affirm substantially for the reasons set forth by the Board in its April 13, 2010 final decision.

I

Appellant was born in 1965. Upon her employment at the JJC in 1995, she enrolled in the Police and Firemen's Retirement System. At the time of both injuries, appellant served as special assignment officer, whose duties included covering breaks for other corrections officers and responding to emergency calls.

On June 12, 2003, while training in the use of a bicycle as part of her job as a special assignment officer, appellant fell and injured her left knee while attempting to navigate an obstacle course. She tore her anterior cruciate ligament (ACL), for which she underwent surgery on August 19, 2003. Her ACL was reconstructed. According to the undisputed medical testimony, the surgery was a success. After undergoing a lengthy period of physical therapy and rehabilitation, appellant was discharged from further medical care on January 31, 2005, and at that time returned to work at the JJC as a special assignment officer.

Appellant's physician recommended that she wear a knee brace on an intermittent basis. According to appellant, she wore it to work every day up to and including the day of her second injury on November 18, 2006. Plaintiff contended that although she was officially returned to full duty status, she was instructed by her supervisors not to run to emergencies, but to ride in a van. It was customary for officers to respond to emergencies either on foot or in a van, depending upon the distance required to be traveled.

In the intervening period between her return to work and her November 18, 2006 injury, appellant received no medical treatment for her knee. As part of the process of considering appellant's return to full duty status, she underwent a functional capacity evaluation in 2004, in which she surpassed the threshold required to perform the required functions of a corrections officer.

The human resource manager from the JJC, Lisa Bell, testified that, according to appellant's personnel file, she had not requested any kind of accommodation during the period between her two injuries, and no accommodation had been granted. Bell further testified that evaluation reports in appellant's file reflected that during the interim period her performance significantly exceeded the essential criteria and reflected that she "[r]eports and responds to all incidents." Appellant reviewed and signed these reports. Bell said there was nothing in appellant's personnel records indicating that she was unable to fully perform her job during the interim period.

On November 18, 2006, appellant was sitting in the cafeteria with other officers when an emergency code was called. Appellant rose from her chair, pivoted and began to run to respond to the call. Her left knee "gave out," causing her severe pain. She limped to the nearby van, in which she was transported to the scene of the emergency. However, she remained in the van at that location.

We have not been provided with medical records regarding the injury appellant suffered at that time. The medical experts for both sides described it as a twisting injury. Those experts also agreed that appellant did not re-injure the ACL, and that the surgical repair previously performed remained fully intact.

As a result of this second injury, appellant was assigned to light duty for about six months, at which time she retired.

II

On October 26, 2007, appellant applied for accidental disability retirement benefits. She contended that the 2003 and 2006 injuries were both the result of traumatic events and that, in combination, they caused her to be totally and permanently disabled from being a corrections officer. The Board did not dispute that appellant was totally and permanently disabled. However, it disputed her entitlement to accidental disability retirement benefits. In its initial denial, the Board contended that the 2003 incident did not constitute a traumatic event and also did not occur during the performance of appellant's regular and assigned duties. The Board later withdrew those positions and agreed that the 2003 incident was a traumatic event and occurred while on duty. As to the second incident, the Board found that it did not constitute a traumatic event, and therefore could not provide the basis for accidental disability retirement benefits.

On May 5, 2008, appellant filed an administrative appeal of the Board's decision. The matter was referred to the Office of Administrative Law. With the agreement of the parties, the ALJ bifurcated the proceeding. He would first determine whether appellant suffered any traumatic event. If so, the proceeding would move on to a second phase to consider the issues of direct result and permanent and total disability with regard to any traumatic events determined to have occurred.

At the first hearing, held on January 29, 2009, appellant provided the only testimony, after which the ALJ issued an interlocutory order on February 4, 2009. He found that the 2003 incident constituted a traumatic event, but the 2006 incident did not. As to the latter, he found that the injury was not the result of the interposition of any external force. He explained: "Rising and twisting, or pivoting one's knee, in the course of getting up out of a chair and turning to the side to place oneself in a position to move to the right or to the left, is nothing more than the 'exertion of work effort.'"

Because a traumatic event was found, further hearings were necessary and were conducted on October 20 and November 4, 2009. Appellant presented the testimony of Dr. David Weiss. The Board, in addition to Bell, presented the testimony of Dr. Lawrence Barr. Both medical experts agreed that the ACL reconstruction, although successful, left appellant with some laxity in her left knee joint, thus placing her at higher risk for the kind of twisting injury she suffered in 2006. Both doctors also agreed that the 2006 injury did not constitute a re-injury of the ACL, the repair of which was left completely intact.

The ALJ rendered his initial decision on January 11, 2010. He found that the 2006 injury, although not the result of a traumatic event, was an effect of the 2003 traumatic event. He explained his rationale thusly:

It is evident from the testimony of the two experts that given the underlying injury to the left knee, resulting in an ACL tear, major reconstructive surgery, a graft with a degree of laxity that made the knee less than 100% stable and increased the likelihood of an injury to the knee even from a simple twist above that which one without a compromised knee would face, the "essential significant or the substantial contributing cause of the ultimate disability" which [appellant] suffered was the traumatic event of June 2003. That she was able to return to work for a while, with a support and with some difficulty, until the effect of the first injury permitted a simple movement to destroy her career as a corrections' officer, does not in the least take away from the fact that after June 2003 she was precariously situated.

Based on this finding, the ALJ concluded that appellant was permanently and totally disabled as a direct result of the June 2003 traumatic event and was entitled to an accidental disability pension.

After receiving exceptions from the Office of the Attorney General and appellant's response, the Board issued its final decision on April 13, 2010. The Board rejected the ALJ's conclusion that appellant was totally and permanently disabled as a direct result of the 2003 accident. The Board did not take issue with the ALJ's factual findings derived from the testimony of lay witnesses, but found that the ALJ did not adequately evaluate and interpret the expert testimony presented at the hearing.

In support of its rejection of the ALJ's initial decision, the Board made the following findings of fact. The Board noted that Dr. Weiss testified that the reconstruction of appellant's knee was a success, "the ACL graft had taken and there was a good repair," and appellant told her treating physician on December 27, 2004, that she had "no pain, swelling, or giving way." In 2004, appellant completed a functional capacity evaluation, and demonstrated that she could return to work by scoring above the threshold required to perform the essential duties of a corrections officer. Dr. Weiss also testified that appellant did not seek treatment and there was no medical documentation exhibiting lingering symptoms between January 31, 2005 and November 18, 2006, during which time she worked on full active duty. Dr. Weiss also confirmed that after the November 18, 2006 incident, appellant did not re-tear her ACL and the reconstruction was wholly intact. Based on these findings, the Board found that appellant was not totally and permanently disabled after the 2003 traumatic event.

The Board next considered whether appellant's total and permanent disability, caused by the November 18, 2006 incident, could somehow be tied to the 2003 incident. Dr. Weiss testified that the November 2006 injury aggravated a pre-existing knee injury. He explained:

Well again, I mean, people get up, and they do have twisting injuries without having ACL tears. I mean those things can happen just to anybody, but in the general population, she's more at risk than you would be getting up and having a twisting injury, because she did have some laxity in the joint. She was having problems with the patella femoral joint. So she is at a higher risk for this happening than the general population. So therefore, it is more probabl[e] than possible that her injuries [were] because of the first accident.

The Board noted that the doctor did not find any connection between the injuries beyond the fact that appellant was at a higher risk of injury. The Board found that Dr. Barr's testimony corroborated the testimony of Dr. Weiss, as Barr found appellant was merely at a higher risk of suffering the second injury.

The Board also took note that appellant's personnel file reflected that she did not make any medical requests and performed her job duties at a high level. Further, there was no documentation of any accommodations made for her knee prior to the November 18, 2006 injury.

According to the Board, "the ALJ's factual determinations must be expanded because material facts are not discussed and the evidence is not properly weighed." In support of this determination, the Board reasoned (1) there was insufficient evidence in the record that appellant's post-2006 disability was a direct result of the 2003 traumatic event, (2) merely being at a greater risk of injury was insufficient evidence to prove that the November 2006 non-traumatic event was an effect of the prior knee condition, and (3) because appellant only became totally and permanently disabled after the November 2006 incident, the 2003 injury was a pre-existing condition excluded under requirement 2(c) of the Richardson test.

On the critical "direct result" issue, the Board found that "[a]n increased risk due to a prior injury is pure speculation and not the actual cause," and as such, "does not satisfy the substantial contributing cause threshold." After reviewing the facts, the Board observed that the "November 18, 2006 incident directly caused [appellant's] permanent and total disability, yet it did not qualify as a traumatic event." The Board explained that "[d]irect cause signifies an absence of remoteness. The incident three years prior is too remote to be considered a direct cause of the total and permanent disability, notwithstanding that it may have contributed to a medical condition that made [appellant] more susceptible to new injuries than other people."

The Board then rejected the ALJ's finding that the 2006 incident was "an effect" of the 2003 traumatic event. In reaching that conclusion, the ALJ relied on Still v. Board of Trustees, Public Employee's Retirement System, 144 N.J. Super. 103 (App. Div. 1976), certif. denied, 73 N.J. 46 (1977). The Board questioned the continuing viability of Still in light of later cases, including Richardson. The Board further reasoned that even under the causation standard espoused in Still, the evidence in the record in this case was insufficient to demonstrate that it was "eminently clear" that appellant's later injury was an effect of the first injury, which did result from a traumatic event. In the Board's view, medical evidence linking the two incidents was "plainly absent." Finally, the Board determined that even if there was a sufficient connection between the two incidents, the Richardson test of causation would not be satisfied because the second incident, under that rationale, would be nothing more than an aggravation of a preexisting condition.

III

To qualify for accidental disability retirement benefits, the disability must "direct[ly] result" from a "traumatic event." N.J.S.A. 43:16A-7(1). In Richardson, the Court expounded upon the "traumatic event" factor by requiring that the event be identifiable as to time and place, be undesigned and unexpected, and be caused by a circumstance external to the member, not the result of a preexisting disease that is aggravated or accelerated by the work. Richardson, supra, 192 N.J. at 212-13. The Richardson test is an "extraordinarily high threshold that culls out all minor injuries; all major injuries that have fully resolved; all partial or temporary disabilities; and all cases in which a member can continue to work in some other capacity." Id. at 195.

With regard to the "direct result" requirement, "[t]he word 'direct' connotes relative freedom from remoteness, whether in terms of time, intervention of other contributive causes or the like, or a combination of such factors." Gerba v. Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 186 (1980) (quoting Titman v. Bd. of Trs., Teachers' Pension & Annuity Fund, 107 N.J. Super. 244, 247 (App. Div. 1969)). A traumatic event is the direct cause of permanent and total disability if it is "the essential significant or substantial contributing cause of the disability." Gerba, supra, 83 N.J. at 187.

Applying these principles, we find no error in the Board's conclusion that the 2006 incident did not constitute a traumatic event. No external force was involved. Appellant merely stood up from her chair and turned to walk or run. This was ordinary work effort.

We also find no error in the Board's findings, analysis, and conclusion on the direct result issue. The ALJ had concluded, and appellant continues to argue on appeal, that the 2006 incident was "an effect" of the 2003 injury. In other words, it was an inevitable result of a permanent injury that occurred in 2003, but was delayed in its manifestation. The ALJ and appellant rely on Still for this analysis.

Like the Board, we question the continued viability of Still, which applied a causation standard that equated "natural and proximate cause" with "direct cause." Still, supra, 144 N.J. Super. at 108. This predated the seminal case on the issue, Gerba, in which the Court noted that judicial treatment of the direct result concept had been somewhat inconsistent and uncertain, citing various cases, including Still. Gerba, supra, 83 N.J. at 185. The Court went on to announce the new formulation of the test, namely that a direct cause emanating from traumatic event must constitute "the essential significant or substantial contributing cause of the disability." Id. at 187. As we have stated, the Court expounded that "direct" refers to a result relatively free from remoteness in time and from the intervention of other contributive causes. Id. at 186. Appellant's 2003 injury was not free from either of these circumstances.

Further, the case before us is materially distinguishable on its facts from Still. Appellant underwent the surgery that was recommended after the first incident. She then underwent a lengthy course of physical therapy and rehabilitation, passed the required functional capacity evaluation, and returned to full duty status for nearly two years before suffering another injury. Unlike the claimant in Still, there was no evidence in this case to support a finding that appellant's 2006 injury was inevitable. Although she was at higher risk than individuals who have not had a reconstructed ACL, whether a further injury would occur was far from certain, and was actually speculative. Indeed, appellant worked for nearly two years on full duty status as a corrections officer, without any intervening medical treatment before the second injury occurred. Further, neither medical expert attempted to make any apportionment of her disability based on each injury. The Board's finding that appellant's 2003 injury had fully resolved is well supported by the evidence, as is its finding that the 2006 injury could have happened to anyone independent of a prior ACL injury and reconstruction.

"A strong presumption of reasonableness attaches to the actions of administrative agencies." In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994). A reviewing court will not upset the ultimate determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that it lacked substantial credible evidence in the record, or that it violated legislative policies expressed or implied in the act governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The party challenging agency action bears the burden of demonstrating that the decision is arbitrary, capricious, or unreasonable. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

An agency may "reject or modify findings of fact, conclusions of law or interpretations of agency policy in the [ALJ's initial] decision, but shall state clearly the reasons for doing so." N.J.S.A. 52:14B-10(c). The agency may not modify or reject credibility findings of an ALJ unless the agency determines that those findings are "arbitrary, capricious or unreasonable or are not supported by sufficient, competent and credible evidence in the record." Ibid. If the agency rejects or modifies findings based on the credibility of any witness, it must specifically inform the parties of the reasons for disagreement and make new or modified findings supported by the record. Ibid.

We are satisfied from our review of the record that the Board complied with these standards in expressing its disagreement with the ALJ's findings. We are also satisfied that the Board's final determination is supported by the record and is not arbitrary, capricious or unreasonable. Accordingly, we defer to that determination.

1 The Board did not dispute that appellant was totally and permanently disabled, and appellant was awarded ordinary disability retirement benefits.