JAMES DEFEO v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0448-16T4
JAMES DEFEO,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC
EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent.
_______________________________
Argued January 10, 2018 – Decided March 9, 2018
Before Judges Alvarez and Currier.
On appeal from the Board of Trustees, Public
Employees' Retirement System, PERS No.
2-802491.
Samuel M. Gaylord argued the cause for
appellant (Gaylord Popp, LLC, attorneys;
Samuel M. Gaylord, on the brief).
Amy Chung, Deputy Attorney General, argued the
cause for respondent (Christopher S. Porrino,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Paul
Davis, Deputy Attorney General, on the brief).
PER CURIAM
Petitioner James DeFeo appeals from the August 18, 2016 final
decision of respondent, the Board of Trustees of the Public
Employees' Retirement System (PERS), which adopted the June 9,
2016 initial decision of an Administrative Law Judge (ALJ)
affirming respondent's denial of petitioner's application for
accidental disability retirement benefits. After reviewing
petitioner's contentions in light of the record and applicable
principles of law, we affirm.
Petitioner was employed as a municipal utility maintenance
worker when he was injured at a jobsite in January 2012. He was
treated and discharged from the emergency room. Testing performed
on his right arm and head were normal. In March 2012, petitioner
underwent a surgical decompression of his right radial nerve. In
June, he was diagnosed with a mild traumatic brain injury and
post-concussive syndrome, but was cleared to work on limited light
duty.
In November 2012, petitioner underwent a functional capacity
evaluation (FCE), which revealed some limitations in his ability
to lift and grasp with his right arm. The evaluation also noted
that petitioner performed all aspects of the testing with low
effort, including the testing of his legs and non-injured left
side. Having not returned to work, petitioner was terminated by
his employer on December 12, 2012.
Petitioner had been involved in an automobile accident in
2009 in which he sustained injuries to his left knee, right wrist,
2 A-0448-16T4
lower back and neck. He was under the care of a doctor for
migraine headaches at the time of the workplace accident. Although
petitioner denied ever losing any time from work as a result of
back pain or migraines, he was still taking medication for both
ailments as of the time of the workplace injury.
In February 2013, petitioner filed an application for
accidental disability retirement benefits. PERS denied the
application, finding that petitioner was "not totally and
permanently disabled from the performance of [his] regular and
assigned job duties." Petitioner appealed the denial, and the
matter was transferred to the Office of Administrative Law.
After hearing testimony from petitioner and neurologists on
behalf of both parties, the ALJ issued an initial decision on June
9, 2016. Although he found both experts to be credible, the ALJ
concluded that the diagnoses noted by petitioner's expert were
based solely on petitioner's subjective complaints, unsupported
by any objective findings.1 The expert had listed the duties of
a utility maintenance worker that petitioner could no longer
perform and then opined that he was permanently and totally unable
to perform the duties of his job. The ALJ stated there was no
1
MRI's of petitioner's right wrist and brain were normal. An
EMG of the right arm was within normal limits.
3 A-0448-16T4
"explanation as to how th[o]se diagnoses amounted to total and
permanent medical disabilities."
Respondent's expert opined that petitioner's complaints of
numbness in three fingers on his right hand did not conform to any
known nerve distribution. Without any abnormal findings on any
objective test, the expert concluded that petitioner was not
totally and permanently disabled from performing the normal duties
of his job.
The ALJ considered the five-prong test set forth under
Richardson v. Bd. of Trs., Police and Firemen's Ret. Sys.,
192 N.J. 189, 212-13 (2007), which a petitioner must meet to be
eligible for an accidental disability pension. See
N.J.S.A.
43:15A-43. Left for his determination was whether petitioner had
demonstrated he was "permanently and totally disabled . . . as a
direct result of a traumatic event."2 Richardson,
192 N.J. at
212.
In reasoning that petitioner was not permanently and totally
disabled, the ALJ stated:
[Petitioner's expert] made findings which,
when compared to the demands of petitioner's
duties as a utility maintenance man, did not
lead to a conclusion that petitioner could not
perform any of the duties of his job. Rather,
[petitioner's expert's] findings led to the
2
The parties had stipulated to the remaining three factors of
the test.
4 A-0448-16T4
conclusion that petitioner would not be able
to perform all of the required duties of a
utility maintenance man. However, this does
not equal an inability to perform a job.
According to each treating doctor and the FCE,
petitioner demonstrated ability for light
restricted work, and he demonstrated ability
for some essential job duties as set forth in
his job description. Petitioner's condition
was not enough to cause petitioner to be
totally disabled and unable to perform his
work duties. His duties were of such a nature
that he could continue working, as well as
undertaking and performing many of the
functions required of him. Therefore,
[respondent's expert] presented a more
persuasive opinion as to the petitioner's
ability to perform the functions of his job.
The ALJ also found that petitioner had not demonstrated that his
symptoms were a direct result of the work accident.
PERS affirmed the ALJ's decision on August 18, 2016. On
appeal, petitioner argues that he is totally and permanently
disabled as a direct result of the work related accident and is
therefore eligible for accidental disability retirement benefits.
Our review of an administrative agency's decision is limited.
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
206 N.J. 14,
27 (2011). We will sustain the Board's decision "unless there is
a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Ibid. (quoting In
re Herrmann,
192 N.J. 19, 27-28 (2007)). As the reviewing court,
we "may not substitute [our] own judgment for the agency's, even
5 A-0448-16T4
though [we] might have reached a different result." In re
Stallworth,
208 N.J. 182, 194 (2011) (quoting In re Carter,
191 N.J. 474, 483 (2007)).
While we generally "afford substantial deference to an
agency's interpretation of [the] statute that the agency is charged
with enforcing[,]" we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly
legal issue." Richardson,
192 N.J. at 196 (first citing R&R Mktg.,
LLC v. Brown-Forman Corp.,
158 N.J. 170, 175 (1999); and then
quoting In re Taylor,
158 N.J. 644, 658 (1999)). We review an
agency's interpretation of a statute or case law de novo. Russo,
206 N.J. at 27.
Applying our highly deferential standard of review, we
conclude that there is substantial credible evidence in the record
to support respondent's finding that petitioner failed to
demonstrate an entitlement to accidental disability retirement
benefits. We affirm.
Pursuant to
N.J.S.A. 43:15A-43, a member of PERS may be
retired on an accidental disability pension if the member is
"permanently and totally disabled as a direct result of a traumatic
event occurring during and as a result of the performance of his
regular or assigned duties." In Richardson,
192 N.J. at 212-13,
the Court held that in order to qualify for accidental disability
6 A-0448-16T4
retirement benefits, a member of the retirement system must
establish:
1. that he is permanently and totally
disabled;
2. as a direct result of a traumatic event
that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to
the member (not the result of pre-
existing disease that is aggravated or
accelerated by the work);
3. that the traumatic event occurred during
and as a result of the member's regular or
assigned duties;
4. that the disability was not the result of
the member's willful negligence; an[d]
5. that the member is mentally or physically
incapacitated from performing his usual or any
other duty.
[
192 N.J. at 212-13.]
It is an "extraordinarily high threshold" for petitioner to
meet, one "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." Patterson v. Bd. of Trs., State Police Ret. Sys.,
194 N.J. 29, 43 (2008) (quoting Richardson,
192 N.J. at 195); see also
Thompson v. Bd. of Trs., Teachers' Pension & Annuity Fund, 449
7 A-0448-16T
4 N.J. Super. 478, 487 (App. Div.), certif. granted,
230 N.J. 565
(2017). As the Court stated in Patterson, a petitioner who "can
continue to work in some other capacity" is unlikely to be found
permanently and totally disabled.
194 N.J. at 43 (quoting
Richardson,
192 N.J. at 195).
Petitioner's expert opined that he could not perform all of
the duties required of his job. That, however, does not amount
to the inability to perform a job. The treating doctors advised
petitioner could perform light restricted work. He, therefore,
could have continued working, performing many of the functions
denoted in his job duties. We rely on the ALJ's assessment of the
experts' credibility as he "is better positioned to evaluate the
witness' credibility, qualifications, and the weight to be
accorded [to his or] her testimony." In re Guardianship of D.M.H.,
161 N.J. 365, 382 (1999).
We are satisfied that respondent's finding that petitioner
was not permanently and totally disabled was not arbitrary,
capricious or unreasonable. Petitioner has not met his heavy
burden of demonstrating the Richardson elements. As a result,
petitioner is not eligible for accidental disability retirement
benefits.
Affirmed.
8 A-0448-16T4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
