UGO BELLOMO v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2506-16T1
UGO BELLOMO,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
———————————————————————————————————
Argued May 1, 2018 – Decided May 10, 2018
Before Judges Carroll and Mawla.
On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 3-80471.
Patrick P. Toscano, Jr., argued the cause for
appellant (The Toscano Law Firm, LLC,
attorneys; Patrick P. Toscano, Jr., on the
briefs).
Robert S. Garrison, Jr., argued the cause for
respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Robert S.
Garrison, Deputy Attorney General, on the
brief).
PER CURIAM
Petitioner Ugo Bellomo appeals from a decision by the Board
of Trustees, Police and Firemen's Retirement System (Board),
denying him accidental disability retirement benefits. The Board
adopted an initial decision by the Administrative Law Judge (ALJ),
which determined petitioner was not totally and permanently
disabled due to his regular or assigned work duties, but instead
concluded petitioner withdrew from employment due to an impending
criminal prosecution. We affirm.
The following facts are taken from the record. Petitioner
was employed with the Newark Police Department as a police officer
in July 1996. In January 2007, petitioner was operating a marked
patrol vehicle in pursuit of a suspected drug dealer, when the
vehicle slid on loose gravel and struck a pole. Petitioner
continued to work after this accident.
On November 3, 2012, while off-duty, petitioner was involved
in an incident in which another driver cut him off, and petitioner
pointed his service weapon at the other driver in response. On
March 15, 2013, a grand jury indicted petitioner on a charge of
fourth-degree aggravated assault. As a result, on April 2, 2013,
the Newark Police Department issued a Preliminary Notice of
Disciplinary Action (PNDA) seeking termination of petitioner's
employment due to the indictment. In June 2013, petitioner sought
to participate in the pre-trial intervention (PTI) program, and
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was advised by his criminal defense attorney he would forfeit
public employment as a result of doing so.
On September 30, 2013, petitioner applied for accidental
disability retirement benefits, based on the 2007 accident. He
alleged he had injured his neck, lower back, and both shoulders.
Petitioner continued to work until January 9, 2014.1 The
next day, petitioner entered PTI, and ended his employment as a
police officer.
On October 6, 2014, the Board considered and denied
petitioner's application. The Board determined the 2007 accident
was identifiable as to time and place, was undesigned, and
unexpected. The Board found the accident occurred during and as
a result of petitioner's regular and assigned work duties, and was
not the result of petitioner's own willful negligence.
Notwithstanding, the Board denied the application for accidental
disability because it found petitioner was not totally and
permanently disabled from the performance of his regular and
assigned work duties, and there was no evidence in the record the
2007 accident directly resulted in a total and permanent
1
The Board was not aware of the indictment and disciplinary
charges when it considered petitioner's application for accidental
disability retirement benefits. It first learned of the charges
while the matter was pending in the Office of Administrative Law
(OAL).
3 A-2506-16T1
disability. The Board also found petitioner's application was
untimely because it was not filed within five years of the
accident. The Board concluded petitioner qualified for deferred
retirement.
Petitioner appealed, and the matter was transferred to the
OAL. During the hearing, the Board sought to introduce evidence
of the 2012 crime. Petitioner's objection to the introduction of
this evidence was sustained by the ALJ because the issue had not
been referred to the OAL for consideration.
The ALJ issued an initial decision recommending an award of
accidental disability retirement benefits. The ALJ considered the
testimony of petitioner and his experts, Dr. Richard Boiardo and
Dr. Michael Vives, and determined them to be credible.
The ALJ found petitioner had proved he was totally and
permanently disabled as a direct result of the 2007 accident, and
his continued work and failure to file for benefits was the result
of a delayed manifestation of the disability. The ALJ found the
expert testimony convincing on the issue of permanency and
causation. The ALJ accepted Dr. Boiardo's opinions petitioner had
restricted range of motion in his neck, lower back, and shoulders.
The ALJ credited Dr. Boiardo's opinion petitioner had a high
tolerance for pain, which allowed him to work for six years after
the 2007 accident. The ALJ also relied upon the examination of
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Dr. Vives, which found multi-level lumbar disc degeneration with
advanced disc disruption and an extruded disc on the left side.
The Board's expert, Dr. Andrew Hutter, opined petitioner
complained of muscle sprain and strain, which did not render him
totally and permanently disabled. Dr. Hutter concluded
petitioner's 2007 injuries had resolved, and his physical
condition was not the result of the 2007 accident. The ALJ gave
greater weight to the opinion of petitioner's experts.
The ALJ concluded petitioner was totally and permanently
disabled as a direct result of the 2007 accident. The ALJ
recommended granting accidental disability retirement benefits.
The Board rejected the initial decision because the ALJ did
not admit the information about petitioner's criminal matter into
evidence. The Board noted when petitioner's application was
considered on October 16, 2014, it was unaware of the criminal
charges against petitioner and that he had forfeited his employment
with the Newark Police Department as a condition of dismissing the
criminal charges in return for PTI. The Board remanded the matter
to the OAL, and directed the ALJ to consider the evidence of
petitioner's indictment and reasons for his employment
termination.
On November 9, 2016, the ALJ issued a second decision, this
time recommending denial of accidental disability retirement
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benefits. The ALJ recounted the chronology of petitioner's
disciplinary and criminal proceedings and noted petitioner knew
his employer sought his removal in April 2013, several months
before he applied for accidental disability retirement benefits.
The ALJ found the timing of petitioner's retirement application
appeared "to be suspicious." The ALJ found petitioner's September
30, 2013 application for accidental disability retirement benefits
requested a retirement date of January 1, 2014, yet petitioner
continued to work until January 10, 2014, when he entered PTI. As
a result, the ALJ concluded it was more probable than not
petitioner left his employment because of the consequences of his
criminal case and not because of a physical disability.
The ALJ reconsidered the medical evidence and found the repeat
MRI of petitioner's neck on August 29, 2013, and MRI of
petitioner's back on September 5, 2013, both indicated
petitioner's condition had not significantly progressed since
post-accident MRIs in 2009. The ALJ noted the 2013 MRI of the
neck showed it was only "moderately" worse than in 2009, and the
2013 MRI of the back stated his condition was only "mildly" worse
than in 2009. Finally, the ALJ noted there was no evidence in the
record petitioner sought continuous medical treatment from the
date of the 2007 accident until the present.
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The ALJ concluded the evidence demonstrated petitioner left
his employment because of the consequences of his criminal matter,
not his physical disability. The ALJ found petitioner was not
entitled to accidental disability retirement benefits under
N.J.S.A. 43:16A-7, noting the plain language of the statute
requires the member be unable to work due to a physical disability,
and petitioner had continued to work until he faced criminal
charges.
The Board adopted the ALJ's decision and denied petitioner
accidental disability retirement benefits. This appeal followed.
I.
We begin by reciting our standard of review. "On judicial
review of an administrative agency determination, courts have but
a limited role to perform." Gerba v. Bd. of Trs.,
83 N.J. 174,
189 (1980). An administrative agency's determination will not be
disturbed where the agency's findings are supported by sufficient
credible evidence. Ibid. "[A]n appellate court does not
substitute its judgment of the facts for that of an administrative
agency." Campbell v. N.J. Racing Comm'n,
169 N.J. 579, 587 (2001).
"If the Appellate Division is satisfied after its review that the
evidence and the inferences to be drawn therefrom support the
agency head's decision, then it must affirm even if the court
7 A-2506-16T1
feels that it would have reached a different result itself." Ibid.
(quoting Clowes v. Terminix Int'l, Inc.,
109 N.J. 575, 588 (1988)).
"Ordinarily, an appellate court will reverse the decision of
the administrative agency only if it is arbitrary, capricious or
unreasonable or it is not supported by substantial credible
evidence in the record as a whole." Henry v. Rahway State Prison,
81 N.J. 571, 579-80 (1980). "[A] presumption of reasonableness
attaches to the action of an administrative agency and the party
who challenges the validity of that action has the burden of
showing it was arbitrary, unreasonable or capricious." Boyle v.
Riti,
175 N.J. Super. 158, 166 (App. Div. 1980) (citation omitted).
Petitioner contends the Board's decision should be reversed
because the conclusion was arbitrary, capricious, and
unreasonable. He argues the Board erred in concluding his
separation from employment was not based upon the work-related
injuries resulting in permanent disability. Additionally,
petitioner argues the medical evidence shows his condition
progressed from 2009 to 2013, when he applied for accidental
disability retirement benefits. He argues the information related
to his indictment, which the ALJ considered, was not in evidence
in the proceeding.
Our Supreme Court has stated:
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[T]o obtain accidental disability benefits, a
member must prove:
1. that he is permanently and totally
disabled;
2. as a 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.
[Richardson v. Bd. of Trs.,
192 N.J. 189, 212-
13 (2007).]
N.J.S.A. 43:16A-7(1) states:
The application to accomplish [accidental
disability] retirement must be filed within
five years of the original traumatic event,
but the board of trustees may consider an
application filed after the five-year period
if it can be factually demonstrated to the
satisfaction of the board of trustees that the
disability is due to the accident and the
filing was not accomplished within the five-
year period due to a delayed manifestation of
the disability or to other circumstances
beyond the control of the member.
9 A-2506-16T1
"The applicant for . . . disability retirement benefits has the
burden to prove that he or she has a disabling condition and must
produce expert evidence to sustain this burden." Bueno v. Bd. of
Trs., Teachers' Pension & Annuity Fund, Div. of Pensions &
Benefits,
404 N.J. Super. 119, 126 (App. Div. 2008). "[T]he
applicant must establish incapacity to perform duties in the
general area of his ordinary employment rather than merely showing
inability to perform the specific job for which he was hired."
Skulski v. Nolan,
68 N.J. 179, 205-06 (1975).
Here, the ALJ concluded:
[Petitioner] failed to establish by a
preponderance of the credible evidence that
he is entitled to accidental disability
retirement benefits under
N.J.S.A. 43:16A-7.
Although, at the initial hearing, two doctors
credibly testified on his behalf that he was
permanently and totally disabled, the evidence
taken on remand leads to a different
conclusion that it is more probable than not
that [petitioner] left employment because of
the consequences of his criminal matter and
not because of a physical disability.
. . . .
[W]hen [petitioner] applied for accidental
disability benefits on September 30, 2013, he
was aware that he would have to forfeit his
job as a condition of his acceptance into the
PTI program. While [petitioner] testified
. . . the criminal matter did not affect his
decision to apply for accidental disability
benefits, the credibility of these assertions
is doubtful due to the fact that [petitioner]
applied for PTI on or about June 19, 2013, and
10 A-2506-16T1
because [his attorney] advised him that he
would lose his job as a result of his
acceptance into the PTI program. In
particular, when asked, "Did you advise him
that he would not be able to return to work
as a police officer as a result of PTI?"
[Petitioner's attorney] responded, "Well,
yes, I always knew that." Thus, it is more
likely than not that [petitioner] knew that
he would lose his job due to the criminal
matter well before he applied for accidental
disability retirement benefits.
. . . .
In view of the dates of the indictment, the
PNDA, and the PTI application, together with
[petitioner]'s awareness that he would lose
his employment, all of which preceded his
application for accidental disability
retirement benefits, the timing of his
retirement application appears to be specious.
In addition, the results of the repeat MRI of
the neck on August 29, 2013, and of the back
on September 5, 2013, both indicated that
[petitioner]'s condition had not
significantly progressed since the MRIs of
2009. The 2013 MRI report for his neck stated
that his condition was only "moderately" worse
than in 2009, and the 2013 MRI report for his
back stated that his condition was only
"mildly" worse than in 2009. Moreover, while
[petitioner] asserts that he "sought
continuous medical treatment from the date of
the accident and until the present" . . . there
is no credible evidence to support this claim.
Instead, the 2013 MRI reports appear to be the
only medical records in evidence that show
that he received medical attention for his
neck and back since 2009. . . . Yet a few
months after his indictment, after his
employer issued a PNDA for his removal, and
after he filed the PTI application,
[petitioner] decided it was time to retire
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because physically he couldn't do his job.
However, as discussed above, he continued to
work for more than three months after he
applied for his accidental disability
retirement benefits and until he was forced
to leave his job due to his acceptance into
the PTI program.
While, at the hearing, two doctors testified
that [petitioner] was permanently and totally
disabled, the evidence taken on remand leads
to the conclusion that [petitioner] left his
employment because of the consequences of his
criminal matter and not because of a physical
disability. . . . Further, it is more likely
than not that, when he applied for accidental
disability benefits, [petitioner] already
knew he would lose his job as a consequence
of the criminal matter. As such, [petitioner]
failed to show by a preponderance of credible
evidence that he left his employment due to a
permanent and total disability rather than due
to his acceptance into the PTI program.
We agree with the Board the ALJ reasonably concluded
petitioner was not credible in his assertion he left his employment
due to a physical disability, but instead left because of the
consequences of his criminal matter. Petitioner continued to work
until January 10, 2014, the date he was required to forfeit his
employment as a condition of his entry into PTI, not due to a
medical disability. The medical evidence supported the conclusion
petitioner's condition had progressed only slightly since the 2007
accident. Moreover, petitioner's attorney stated he informed
petitioner his admission into PTI would result in forfeiture of
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his job. For this reason, petitioner's assertion the record lacked
evidence of his indictment is without merit.
The Board's decision petitioner was not totally and
permanently disabled, and left work due to criminal charges rather
than a total and permanent disability was supported by sufficient
credible evidence in the record. The decision was not arbitrary,
capricious, or unreasonable.
Affirmed.
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