ROBERT W. GAVEN v. BOARD OF TRUSTEES PUBLIC EMPLOYEES RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE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-0504-16T3

ROBERT W. GAVEN,

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
_______________________________

              Argued November 28, 2017 - Decided February 8, 2018

              Before Judges Fasciale and Sumners.

              On   appeal   from  the   Public   Employees'
              Retirement System, PERS No. 2-10-199040.

              Joseph F. Polino argued the cause for
              appellant (Polino and Pinto, PC, attorneys;
              Joseph F. Polino, on the brief).

              John A. Lo Forese argued the cause for
              respondent (Christopher S. Porrino, Attorney
              General of New Jersey; Melissa H. Raksa,
              Assistant Attorney General, of counsel, John
              A. Lo Forese, on the brief).


PER CURIAM
     Robert Gaven appeals from a final agency decision by the

Board of Trustees Public Employees' Retirement System (the Board)

denying him accidental disability benefits.              We affirm because we

disagree    with    Gaven's    contention     that   there    does    not     exist

sufficient credible evidence in the record to support the Board's

findings   that     Gaven   failed    to    show   his   permanent    and     total

disability was a direct result of work-related accidents.

     To    secure    accidental      disability    benefits   under     
N.J.S.A.

43:15A-43, an applicant must prove several elements.             Russo v. Bd.

of Trs., Police & Firemen's Ret. Sys., 
206 N.J. 14, 30 (2011).                     We

need not recite those elements except the one in dispute – whether

plaintiff is permanently and totally disabled from the accidents

in question.       See ibid.

     In 1991, Gaven injured his cervical spine in an accident

while working as a road supervisor with the Township of Delran.

He had surgery on his cervical spine at C5 and C6.                   He contends

the injury was fully resolved, and he was physically able to work

following a six-week period of convalescence.             Twelve years later,

he maintains his ability to work changed because of two work-

related accidents.

     On February 15, 2003, Gaven suffered a slip and fall accident

while removing snow and ice at work, which resulted in two broken

ribs and a concussion.         From the record, it does not appear that

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he missed any time from work, but was limited to light duty until

he had another accident a few months later.

     On May 29 of the same year, after patching large potholes

with a co-worker, Gaven was catapulted off the back of a trailer

when a hot tar tamper he was holding onto suddenly fell off the

back of the trailer.   He contends he immediately felt intense pain

in his neck that travelled down through both of his arms.      Gaven

never returned to work due to stiffness and numbness in his arms,

legs, and neck, which caused a loss of motor control.

     On July 21, 2004, the Board denied Gaven's application for

accidental disability retirement benefits arising from the 2003

accidents; finding that neither of the accidents qualified as a

traumatic event under 
N.J.S.A. 43:15A-43, and that his permanent

and total disability was not a direct result of the accidents.

The Board, instead, granted him the lesser benefit of ordinary

disability retirement.   Gaven filed a timely appeal and the matter

was transmitted to the Office of Administrative Law (OAL).    In the

meantime, over a year later in November 2005, Gaven had surgery

to remove a herniated disc at C3-C4 and to fuse discs at C3-C4 and

C6-C7.




                                 3                           A-0504-16T3
      For reasons that are unclear in the record, an OAL hearing

was not held until three diverse dates in 2014,1 after the matter

had been reassigned to another ALJ in June 2013.                In an initial

decision dated May 12, 2016, the ALJ found that, although there

was no dispute that Gaven's spinal injury caused him permanent and

total disability, he did not qualify for accidental disability

benefits.       The ALJ reversed the Board's determination that Gaven's

May 29, 2003 accident qualified as a traumatic event under 
N.J.S.A.

43:15A-43, as interpreted by Richardson v. Bd. of Trs., Police &

Firemen's Ret. Sys., 
192 N.J. 189, 212-13 (2007).2                     The ALJ

determined, however, there was insufficient proof that Gaven's

disability was not a direct result of either accident in 2003.

      On    August     17,   2016,   the     Board   voted    to   adopt     the

recommendations of the initial decision.

      Before us, Gaven challenges the Board's factual findings.                He

argues the Board's ruling that his disability was not the direct

result     of   the   2003   accidents   was   arbitrary     because   the   ALJ

disregarded the fact that his spinal injury from the 1991 accident




1
    The record closed on April 17, 2015.
2
  Although the Board's July 21, 2004 denial of Gaven's application
found that neither accident was a traumatic event, the initial
decision stated that the Board only contended at the hearing that
the May 29, 2003 accident was non-traumatic.

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had resolved through surgery, and that his disability occurred

only after the subsequent accidents.        We disagree.

    From our review of the record, the ALJ thoroughly evaluated

Gaven's testimony, Gaven's voluminous medical records, and most

importantly,   the   competing   opinions    of   the   parties'   medical

experts – neither of whom treated Gaven – as to whether Gaven's

disability was the direct result of the 2003 accidents.            The ALJ

explained her findings:

         Although     [Gaven's     expert]     presented
         competent, concise and clear testimony, is
         clearly accomplished in her field, and
         presented her opinions in a manner so as to
         be easily followed, her testimony and opinions
         emanating therefrom are ultimately undermined
         by   her   insistence   that   herniations   in
         [Gaven's] cervical spine at level C3-[C]4 are
         new injuries caused by the incident of
         February 15, 2003, despite being presented
         with an MRI showing such herniation to be
         present in 2001. As a result, I give greater
         weight to and ADOPT the opinions offered by
         [the Board's expert], and FIND that the
         incidents of February 15, 2003, and May 29,
         2003, resulted in cervical sprain with
         aggravation of pre-existent discogenic neck
         problems . . . , but that there is insufficient
         evidence in the record to state, within a
         degree of medical certainty, that it is more
         likely than not that the incidents rendered
         [Gaven] permanently and totally disabled from
         the performance of his duties.

    According   deference   to   the   Board's    fact-finding,     Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 
199 N.J. 1,

9-10 (2009), we conclude its decision is neither "arbitrary,

                                   5                               A-0504-16T3
capricious, or unreasonable, or . . . lacks fair support in the

record."   Russo, 
206 N.J. at 27 (quoting In re Herrmann, 
192 N.J.
 19, 27-28 (2007)).     We are satisfied "that the evidence and the

inferences to be drawn therefrom support" the agency's decision

that Gaven's disability is not the direct result of the 2003

accidents but from cervical spine degeneration. Clowes v. Terminix

Int'l, Inc., 
109 N.J. 575, 588 (1988).          Thus, we will not disturb

the   determination   that   Gaven   is   not    entitled   to   accidental

disability benefits.

      Affirmed.




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