BRENDA WILLIAMS v. TEACHERS' PENSION AND ANNUITY FUND

NOT FOR PUBLICATION WITHOUT THE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-3914-16T3


BRENDA WILLIAMS,

        Petitioner-Appellant,

v.

TEACHERS' PENSION AND ANNUITY FUND,

     Respondent-Respondent.
___________________________________

              Submitted May 1, 2018 – Decided May 16, 2018

              Before Judges Hoffman and Mayer.

              On appeal from the Board of Trustees of the
              Teachers' Pension and Annuity Fund, Department
              of Treasury, TPAF No. 1-10-153187.

              Law Offices of Robert L. Utsey, Jr., LLC,
              attorneys for appellant (Robert L. Utsey, on
              the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Robert S.
              Garrison, Jr., Deputy Attorney General, on the
              brief).

PER CURIAM
      Brenda Williams appeals from a final agency decision of the

Board of Trustees (Board) of the Teachers' Pension and Annuity

Fund (TPAF) denying her application for accidental disability

retirement benefits.       We affirm.

      On January 28, 2010, Williams, a sixth grade teacher, was

injured attempting to break up a fight between two female students.

One of the students, who weighed between eighty and ninety pounds,

pushed Williams, causing Williams to fall and injure her back.                    At

the   time,   Williams     weighed     approximately       one-hundred      eighty

pounds.

      Williams      continued   to    work   as   a     teacher     following   the

incident.     She received conservative treatment, including pain

medication, physical therapy, and epidural injections.                    Despite

treatment, her back pain continued.               In May 2012, Williams had

spinal surgery, after which she was bedridden for three months.

In August 2012, Williams learned that a screw placed in her back

during the spinal fusion surgery broke, necessitating additional

surgeries.    Williams' last day of work was in February 2013.                    In

March 2013, Williams had three corrective surgeries to her back.

      In December 2013, Williams filed for accidental disability

retirement    benefits.         The   TPAF   awarded      ordinary     retirement

benefits    after    denying    her   request     for    accidental    disability

retirement    benefits.         Williams     argued     she   was    entitled     to

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accidental disability retirement benefits because she is totally

and permanently disabled as a direct result of the traumatic event

in January 2010, and requested a hearing.        The matter was referred

to   an   administrative    law    judge    (ALJ)   in    the    Office     of

Administrative Law (OAL) as a contested case.

      The     ALJ   conducted    hearings   on   Williams'      request   for

accidental     disability   retirement      benefits.      On    behalf     of

petitioner, the ALJ heard testimony from Williams and David Weiss,

D.O., an expert in orthopedic impairment and disability, who

performed an independent medical examination of Williams.

     Williams testified she never had back complaints prior to the

January 2010 incident.          She also described the treatment she

received after the incident.         Because Williams did not receive

pain relief as a result of her initial treatment, she had epidural

injections.     When the epidural injections failed to relieve her

back pain, Williams saw a doctor to discuss surgical options.             The

Workers' Compensation insurance carrier referred Williams to two

other doctors for second opinions related to potential surgery.

These doctors recommended against surgery.              Williams testified

that she decided to forgo surgery, but the pain became unbearable,

so she elected to undergo fusion surgery.

     After the fusion surgery, Williams stated she experienced

increased back pain.     About three months later, Williams returned

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to her doctor and learned that a screw used in the surgery had

broken and was compressing a nerve.              Williams went to another

surgeon and had three independent reparative surgeries to her

spine   in   March   2013.     The    surgeon    who   performed   the    repair

surgeries told Williams she would not be able to work again.

       Dr. Weiss testified that he physically examined Williams in

March 2015.    In addition, Dr. Weiss took Williams' medical history

and reviewed her medical records.          Dr. Weiss also read a 2010 MRI

of Williams' spine and observed age-related changes indicated by

disc desiccation and a herniation at the L5-S1 level.              He reviewed

Williams' flexion extension studies, which revealed a Grade I

spondylolisthesis of L4 over L5.           Dr. Weiss diagnosed Williams

with    musculoskeletal      trauma   to   her    lumbar   spine   due     to    a

traumatically-induced work-related injury occurring on January 28,

2010, requiring Williams to undergo complex surgical procedures

to her lumbar spine.      Dr. Weiss noted Williams had no prior record

of back problems and developed spinal instability as a result of

the incident in January 2010.

       On behalf of the Board, the ALJ heard testimony from Richard

A. Rosa, M.D., an expert in orthopedics and orthopedic surgery.

Dr. Rosa conducted an independent medical examination of Williams

on April 2, 2014.      As part of his examination, Dr. Rosa reviewed

Williams' medical history and medical records.              In reviewing the

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2010 MRI of Williams' spine, Dr. Rosa opined that she had a partial

fusion   of   her   low   back    since       birth,   leading   to   progressive

arthritis in her spine.      According to Dr. Rosa, this pre-existing

condition led to severe spinal stenosis and caused the need for

surgery. Dr. Rosa concluded that degeneration, rather than trauma,

rendered Williams permanently and totally disabled.

     After considering the testimony, the ALJ found that Williams

continued to work for three years after the incident and concluded

that she was not immediately disabled as of January 28, 2010.                    He

determined that Williams' "disability was fairly remote in time

relative to the incident on January 28, 2010, and there were

intervening    events     which     impacted       petitioner's       condition,"

including the subsequent corrective surgeries.                    The ALJ also

concluded it was "unlikely that an eighty to ninety-pound girl

would be able to push a 180-pound women hard enough to cause a

disabling injury." The ALJ deemed the Board's expert more credible

than Williams' expert regarding the impact of the degenerative

conditions in Williams' lumbar spine.              The ALJ concluded Williams

failed to prove her disability was a direct result of the incident

on January 28, 2010 to be entitled to accidental disability

retirement benefits.

     The Board adopted the AJL's decision and denied Williams'

application for accidental disability retirement benefits.                       On

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appeal, Williams argues the Board erred in finding that she was

not totally and permanently disabled as a direct result of a

traumatic event on January 28, 2010.

     Our   review    of   an   agency's    decision   is   limited.     In    re

Stallworth, 
208 N.J. 182, 194 (2011); Messick v. Bd. of Review,


420 N.J. Super. 321, 324 (App. Div. 2011). An agency determination

should not be reversed "unless it is arbitrary, capricious or

unreasonable    or   it   is   not   supported   by   substantial     credible

evidence in the record as a whole."           Lavezzi v. State, 
219 N.J.
 163, 171 (2014) (quoting Prado v. State, 
186 N.J. 413, 427 (2006)).

However, we review an agency's legal interpretations de novo.                Id.

at 172.    "Generally, courts afford substantial deference to an

agency's interpretation of a statute that the agency is charged

with enforcing."       Richardson v. Bd. of Trs., Police & Firemen's

Ret. Sys., 
192 N.J. 189, 196 (2007).

     Under the Teachers' Pension and Annuity Fund Law, 
N.J.S.A.

18A:66-1   to   -93,      an   education    professional,    upon     becoming

permanently incapacitated, can receive either ordinary disability

or accidental disability retirement benefits.              Kasper v. Bd. of

Trs. of Teachers' Pension & Annuity Fund, 
164 N.J. 564, 573 (2000).

A TPAF member is eligible for accidental disability retirement

benefits if the member is "permanently and totally disabled as a

direct result of a traumatic event occurring during and as a result

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of the performance of his [or her] regular or assigned duties."


N.J.S.A. 18A:66-39(c).    An 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, 
404 N.J.

Super. 119, 126 (App. Div. 2008).

     To satisfy the "direct result" component of the statute, the

"traumatic event" must "constitute[] the essential significant or

the substantial contributing cause of the resultant disability."

Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 
83 N.J. 174, 186

(1980) (finding the medical evidence demonstrated the incident

aggravated the progression of an arthritic condition but failed

to establish the claimant's disability was a direct result of the

injury for an award of accidental disability benefits).

     In this case, there was ample evidence in the record that

Williams had extensive pre-existing degenerative conditions in her

lumbar spine.   Among the pre-existing conditions in Williams'

spine was spondylolisthesis, a degenerative condition, that led

to instability in her lumbar spine necessitating the surgery.      We

conclude there is sufficient credible evidence to support the

Board's determination that Williams' disability was not the direct

result of a traumatic event to be entitled to accidental disability

retirement benefits.

                                7                           A-3914-16T3
Affirmed.




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