RAY BENEVENTO v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S 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NOT FOR PUBLICATION WITHOUT THE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-1555-17T3

RAY BENEVENTO,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,

          Respondent-Respondent.


                   Argued November 13, 2018 – Decided November 29, 2018

                   Before Judges Fasciale and Rose.

                   On appeal from the Board of Trustees of the Police and
                   Firemen's Retirement System, Department of Treasury,
                   PFRS No. 3-75555.

                   Daniel E. Rybeck argued the cause for appellant (Weir
                   & Partners LLP, attorneys; Daniel E. Rybeck and Lilia
                   Londar, on the brief).

                   Thomas R. Hower, Deputy Attorney General, argued
                   the cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Melissa Dutton Schaffer, Assistant
            Attorney General, of counsel; Thomas R. Hower, on the
            brief).

PER CURIAM

      Petitioner Ray Benevento appeals from an October 17, 2017 final decision

of the Board of Trustees of the Police and Firemen's Retirement System (Board).

The Board adopted an Initial Decision issued by then Acting Director and Chief

Administrative Law Judge (ALJ) Laura Sanders, denying petitioner's

application for an accidental disability retirement pension because he failed to

prove he was "permanently and totally disabled" pursuant to Richardson v.

Board of Trustees, Police and Firemen's Retirement System.1 Having reviewed

the record, we find the Board's decision is supported by substantial credible

evidence. R. 2:11-3(e)(1)(D). We affirm substantially for the reasons stated by

ALJ Sanders.

      We will not discuss the evidence in detail, because it is set forth at length

in the ALJ's Initial Decision. In sum, at the time of his injury, petitioner was a

patrol officer with the Lindenwold Police Department. There was no dispute

that on June 23, 2011, petitioner injured his right arm and elbow during the


1
   192 N.J. 189, 212-13 (2007) (holding that in order to qualify for such benefits,
a member of the retirement system must establish, among other things, "that he
is permanently and totally disabled . . . and physically incapacitated from
performing his usual or any other duty").
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course of an arrest. Instead, the sole issue presented to the ALJ was whether

petitioner was permanently disabled as a result of the incident.

      During a two-day testimonial hearing, 2 petitioner and his expert, Allen R.

Berkowitz, M.D., testified on petitioner's behalf, and Gregory S. Maslow, M.D.

testified on the Board's behalf. The evidence required the ALJ to determine

which party's medical expert was more credible, and whether petitioner was a

credible witness. The ALJ found petitioner's testimony was credible concerning

his account of the incident. Regarding the permanency of his injuries, however,

the ALJ determined the Board's expert was more persuasive.

      To cite one notable example, the ALJ rejected petitioner's argument,

renewed on appeal, that Dr. Maslow's opinion should carry less weight because

his examination was "cursory, lasting [fifteen to twenty] minutes and basically

[was limited to] palpating [petitioner]'s right arm and asking him to push against

the doctor." Conversely, petitioner contended his expert, Dr. Berkowitz, based




2
   The hearing was conducted before a different ALJ (first ALJ). Because the
first ALJ did not render an initial decision following numerous extensions to do
so, the parties agreed to transfer the matter to another ALJ, "with the stipulation
that the new ALJ listen to the hearing as well as read the transcripts." See
N.J.A.C. 1:1-14.13. Following her receipt of the record, ALJ Sanders conducted
that review.


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his opinion on two four-hour functional capacity examinations (FCE).             In

resolving the discrepancies between the experts' opinions, the ALJ observed:

            Dr. Maslow examined petitioner in August 2012, while
            the FCEs were done in March 2012 (four months after
            [petitioner's] mid-November surgery) and June (seven
            months after surgery). Although Dr. Maslow respected
            the opinions offered in the FCEs, in the end, the reason
            he could not agree with them was because they were
            founded on an observation that was simply not present
            when he examined petitioner months later. The [June
            FCE] reported that, "Manual muscle testing revealed
            weak musculature on the right shoulder, elbow and
            wrist," which [Dr. Maslow] personally did not find on
            his examination. . . . Given Dr. Berkowitz's expressed
            expectation that petitioner's symptoms would resolve
            slowly over time, Dr. Maslow's testimony presents the
            more cohesive picture. Further, [unlike Dr. Berkowitz],
            Dr. Maslow did evaluate the limitations he found in
            relation to the job specification for a police officer, and
            concluded that they would not prevent petitioner from
            fulfilling the duties of a police officer. For that reason,
            Dr. Maslow's opinion carries the greater weight[.]

      The Board adopted the ALJ's findings. After reviewing the record in light

of the applicable standard of review, we find no basis to disturb the Board's

decision. See Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys.,  143 N.J. 22,

25 (1995); see also Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,  206 N.J.
 14, 27 (2011) (recognizing "review of administrative agency action is limited").




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      In this appeal, petitioner primarily contends the Board's decision is against

the weight of the evidence. We disagree. Petitioner's appellate contentions are

without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




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