PATRICK HUBERT v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0868-17T1
PATRICK HUBERT,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC
EMPLOYEES' RETIREMENT
SYSTEM,
Respondent-Respondent.
_____________________________________
Submitted October 15, 2018 – Decided November 5, 2018
Before Judges Haas and Sumners.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of
Treasury, PERS No. 2-1016523.
Ridgway & Stayton, LLC, attorneys for appellant
(Herbert J. Stayton, Jr., on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel and on the brief; Christina Cella,
Deputy Attorney General, on the brief).
PER CURIAM
Petitioner Patrick Hubert, a former Juvenile Detention Officer, appeals
from a final agency decision by the Board of Trustees Public Employees'
Retirement System (the Board) denying him accidental disability benefits under
N.J.S.A. 43:15A-43. The Board found that Hubert's permanent and total
disability due to Parkinson's disease was not a direct result of his work-related
accidents. We affirm because the Board applied the proper legal standards and
there is sufficient credible evidence in the record to support its findings.
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 petitioner is permanently and totally disabled as a direct
result of the accidents in question. Accordingly, we provide an overview of
Hubert's work-related accidents and his medical history that the Board
considered in making its decision.
On November 25, 2013, Hubert suffered a head injury when he hit his
head on a wall while attempting to restrain an out-of-control resident at the
Camden County Juvenile Detention Center. He was treated at a hospital
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emergency room and was diagnosed with a concussion. After being out of work,
he later returned to light duty. 1
On April 18, 2014, in a similar incident at the same facility, Hubert
suffered another head injury. This time, however, after being treated and
diagnosed with post-concussion syndrome, he did not return to work.
In October 2014, Hubert applied for accidental disability retirement
benefits through the Board; claiming he was unable to return to work because of
"cognitive, neuropsychiatric[,] . . . psychological[,] and somatic residuals of
head injuries" caused from the two work-related accidents on November 25,
2013, and April 18, 2014. About three months later, Hubert's neurologist, Dr.
Landen,2 diagnosed him with Parkinson's. The malady causes him to suffer from
tremors, loss of balance, muscle cramps, joint pain, and bad handwriting; he
wears a twenty-four hour patch to reduce his symptoms.
The Board denied Hubert's application based on its determination that his
Parkinson's was "not a direct result of either . . . incident[]," and "[i]nstead . . .
the result of a pre-existing disease that [was] aggravated or accelerated by . . .
1
The record does not indicate how long he was out of work nor how long he
was on light duty.
2
He did not testify, and the record does not indicate his first name.
A-0868-17T1
3
regular work effort." The Board instead granted Hubert the lesser benefit of
ordinary disability retirement. He appealed the Board's decision, and the matter
was transferred to the Office of Administrative Law for a fact-finding hearing.
In her initial decision, the Administrative Law Judge (ALJ) found that
Hubert's injuries from the two work-related accidents were contributing factors
to his Parkinson's, but were not a direct cause of his debilitating illness to entitle
him to accidental disability retirement benefits. The ALJ's decision boiled down
to her evaluation of the testimony of the parties' respective medical experts.
Hubert's expert, Edward Tobe, D.O., a board certified adult and child
psychiatrist, relied upon his three reports based upon his examinations of Hubert
in December 2006, December 2014, and January 2016, and his review of the
reports of Hubert's treating physicians, Mijail Serruya, M.D., Ph.D., and Nicole
Sestito, Ph.D.3 Hubert's treatment records revealed an extensive history of
concussions prior to the work-related accidents: one, as a result of wrestling
when he was a teenager; three from car accidents – all with loss of consciousness
– in 1988, 1989, and 1990; one at home in 2008; another in 2010; and one after
a fall in the shower in March 2013.
3
Neither treating physician testified.
A-0868-17T1
4
Dr. Serruya authored a report about a month after Hubert's last work-
related accident, maintaining that Hubert had a "remarkable stepwise decline,"
and suffered from non-restful sleep, slight tremors in his right hand, intermittent
jerk-like myoclonic movements, sexual dysfunction, and worsening mood. In
finding that Hubert had post-concussive syndrome, Dr. Serruya stated, "[t]he
overall pattern of slowly worsening cognition and mood raise the concern for a
post-traumatic alpha-synucleinopathy4 or other degenerative proteinopathy 5
. . . ."
Dr. Sestito authored a report about two months following Hubert's last
work-related accident, likewise diagnosing him with post-concussive syndrome.
She noted that Hubert had a right arm tremor, normal gait, average intellectual
functioning, intact executive functions, below expectation visuospatial skills,
and borderline-impaired learning and memory. She also wrote that "[w]hile it
4
Synucleinopathy is "[a]ny degenerative disease of the central nervous system
in which there is an excessive accumulation of alpha-synuclein (a brain protein)
in the neurons. The synucleinopathies include Parkinson disease, dementia with
Lewy bodies, and multiple system atrophy." Synucleinopathy, Medical
Dictionary, https://medical-dictionary.thefreedictionary.com/synucleinopathy.
5
Proteinopathy is "[a]ny disease or condition that results from the abnormal
synthesis, folding, post-translational modification, or deposition of protein in
cells or tissues." Proteinopathy, Medical Dictionary, https://medical-
dictionary.thefreedictionary.com/proteinopathy.
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is highly likely that [Hubert's] cognition has been negatively impacted by the
numerous concussions he has experienced, there are other factors that are likely
impeding his recovery and cognitive functioning . . . ."
Dr. Tobe's first two reports mirrored the reports of Drs. Serruya and
Sestito in noting Hubert's declining health. It was in his last report in January
2016, that Dr. Tobe indicated that the 2013 and 2014 work-related incidents
have been the causation for the onset of Posttraumatic
Parkinsonian Disorder. [Hubert] does not have a
known synucleinopathy in his family; therefore, it
would not be arguable that he had a preexisting or even
a genetic proclivity to develop the disease. Rather his
disease was related to the trauma of the incidences
altering intracellular function, most particularly in
areas brain [sic] inclined to the manifestation of
Parkinson's . . . .
Dr. Tobe opined that Hubert was totally disabled from performing his job duties.
Although he referenced Hubert's past history of concussions that were detailed
in the treating physicians' reports, he did not relate them as a direct cause of
Hubert's Parkinson's.
The Board's expert, Mark J. Chelder, Ph.D., a licensed psychologist and
clinical neuropsychologist, relied upon his March 2015 report, which indicated
he reviewed Drs. Serruya and Sestito's reports, in addition to Hubert's
examination with IMX Medical Management Services that he ordered. Dr.
A-0868-17T1
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Chelder acknowledged Hubert's symptoms that were noted by Dr. Tobe and the
treating physicians following the two work-related accidents, and agreed with
Dr. Tobe that Hubert was presently totally and permanently disabled from
performing his job duties. However, he disagreed with Dr. Tobe that Hubert
was suffering from Parkinson's as a direct result of the work-related accidents.
He specified that Hubert suffered many head injuries both in and out of work,
and "[i]t is commonly clinically accepted that the effects of concussions are
cumulative, and can worsen with each successive injury. In [Hubert's] case, his
current condition is likely to reflect the residuals of his many head injuries
[during his life] . . . and not directly related to any particular work injury."
Due to the experts' conflicting opinions, the ALJ had to determine which
one was more credible. She found Dr. Tobe's testimony unpersuasive, holding:
I FIND that Dr. Tobe found many of the post-
concussive syndrome symptoms that constitute his
present disability back in 2006, including decreased
memory processing speed, impaired executive control
functions, anxiety, depression, a sleeping disorder and
headaches. Dr. Tobe concluded that in 2006 there is a
post-concussive syndrome causing a thirty-five percent
permanent of total neuropsychiatric disability.
Therefore, his opinion that the work-related incidents
in 2013 and 2014 are the only cause of petitioner's
disability because he now has Parkinson's disease lacks
credibility. Dr. Tobe's report noted the dangers of the
cumulative effects of the repeated concussions that
petitioner sustained in his lifetime.
A-0868-17T1
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To further cement her discredit of Dr. Tobe's opinion, the ALJ found that
Dr. Tobe failed to indicate that Hubert had Parkinson's in his December 2014
report, eight months after his last work-related accident in April 2014. Dr. Tobe
merely noted in the report that Hubert suffered a traumatic brain injury with
ongoing post-concussive cephalgia and depression. She found that Dr. Tobe's
opinion "was not supported by the evidence," which "shows that [Hubert]'s
disability stems from the cumulative effects of various concussions that he
sustained during his lifetime."
In finding Dr. Chelder credible, even though he rarely treated patients with
Parkinson's, the ALJ was satisfied that he had enough training and experience
to diagnose the hallmarks of the disorder and what caused it. She agreed with
his evaluation of Hubert's medical history stating:
I FIND that petitioner's treating physicians documented
that petitioner sustained multiple concussions
beginning as a teenager and continuing through
adulthood. The notes of Dr. Serruya and Dr. Sestito set
forth that petitioner was involved in multiple car
accidents in 1988, 1989[,] and 1990. In 2003,
according to those doctors, petitioner was out of work
for several months with a particularly severe
concussion. Petitioner suffered another serious head
injury on January 22, 2005 . . . . Petitioner did not recall
a concussion at home in 2008 or at work in 2010, but
he saw it noted in the reports of his doctors. Similarly,
in March 2013, a few months before the November
2013 work incident, the report notes that he fell in the
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shower in his home. Petitioner does not recall that
incident either. I FIND as fact all of the above injuries
in which injuries to the head were involved were
contributing factors to petitioner's permanent disability.
Citing Gerba v. Board of Trustees, Public Employees Retirement System, 83 N.J. 174 (1980), the ALJ concluded that Hubert did not prove by a
preponderance of the evidence that his disability directly resulted from the two
work-related accidents.
The Board subsequently adopted the ALJ's decision. This appeal
followed.
Hubert contends that the ALJ did not give enough weight to the reports of
his treating doctors, or Dr. Tobe's testimony, and that no deference should be
given to the testimony of the Board's expert Dr. Chelder. 6 Hubert further argues
that the ALJ erred in applying Gerba, to determine that Hubert's injury was not
a direct result of a traumatic event, and that the record does not support the ALJ's
findings.
6
Hubert argues that Dr. Chelder's testimony constitutes a "net opinion." This
point is unpersuasive because Dr. Chelder was qualified by the ALJ and neither
Hubert's expert nor the Board's expert were neurologists or worked with many
Parkinson's patients. The Board's expert gave his opinion based on an exam and
review of past medical documents, which is sufficient under N.J.R.E. 702 and
703.
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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, capricious, or unreasonable, or . . . l acks fair
support in the record." Russo, 206 N.J. at 27 (quoting In re Herrmann, 192 N.J.
19, 27-28 (2007)). Under Gerba, our Supreme Court held that for a member of
the Public Employees' Retirement System to qualify for accidental disability
benefits, it need not show that the traumatic event is the "sole or exclusive cause
of the disability," but that the alleged traumatic event is "the direct cause, i.e.,
the essential significant or substantial contributing cause of the disability[.]" 83 N.J. at 187.
We are satisfied "that the evidence and the inferences to be drawn
therefrom support" the Board's decision that Hubert's Parkinson's was not the
direct result of the 2013 and 2014 work-related accidents, but from a significant
prior history of head injuries. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588
(1988). Thus, we will not disturb the Board's determination that Hubert is not
entitled to accidental disability benefits.
Affirmed.
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