DAVID HARAK v. BOARD OF TRUSTEES STATE POLICE 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NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0057-19T3

DAVID HARAK,

           Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
STATE POLICE RETIREMENT
SYSTEM,

     Respondent-Respondent.
_____________________________

                    Argued October 13, 2020 – Decided October 27, 2020

                    Before Judges Rothstadt and Mayer.

                    On appeal from the Board of Trustees of the State
                    Police Retirement System, SPRS No. 8-10-004739.

                    Samuel J. Halpern argued the cause for appellant.

                    Austin J. Edwards, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
                    Attorney General, of counsel; Austin J. Edwards, on the
                    brief).

PER CURIAM
        Petitioner David Harak appeals from a July 24, 2019 final agency decision

of respondent Board of Trustees of the State Police Retirement System (Board),

denying his application for an accidental disability retirement pension. We

affirm.

        Harak became a State Trooper in 2001. In 2005, he began experiencing

back issues due to a fall in his home. In 2006, he underwent L-4 and L-5 lumbar

disc replacement surgery. After that surgery, Harak returned to work without

restriction, continued to perform his official duties without difficulty, and took

prescription pain medication as needed. Due to Harak's lingering back pain,

Harak went to see Dr. Andrew Casden, an orthopedic surgeon. In March 2007,

Dr. Casden diagnosed a failed disc replacement from the 2006 surgery. As a

result, Dr. Casden performed a lumbar laminectomy and spinal fusion surgery

at the L-4 and L-5 levels. After the second surgery, Harak received physical

therapy, returned to light duty, and then resumed full duty without restrictions.

Harak continued taking prescription medication for muscle spasms and back

pain.

        On June 27, 2010, Harak was involved in an on-duty accident in his police

vehicle and he went to the hospital complaining of back pain. In September

2010, Dr. Casden performed a third surgery for a failed spinal fusion at the L-4


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and L-5 levels. Harak never returned to full time duty after the 2010 surgery.

On June 11, 2015, he filed an application for receipt of accidental disability

retirement benefits, citing neck pain radiating into his wrists and back pain

radiating into his legs as a result of the 2010 accident.

      On March 22, 2016, the Board denied Harak's request for accidental

disability retirement benefits but awarded him ordinary disability retirement

benefits. The Board found the 2010 motor vehicle accident was a traumatic

event and Harak was permanently and totally disabled for duty as a State

Trooper. However, the Board determined Harak's disability was not the direct

result of the 2010 accident but rather a pre-existing condition standing alone, or

a pre-existing condition aggravated or accelerated by work effort.

      Harak appealed the Board's denial, and the matter was transferred to the

Office of Administrative Law and assigned to an administrative law judge (ALJ)

for a hearing. At the hearing, the ALJ heard testimony from Harak, Dr. Casden,

and the Board's expert in orthopedic surgery, Dr. Jeffery Lakin.

      In a written decision, the ALJ summarized the testimony of the witnesses.

Dr. Casden, a board-certified orthopedic surgeon, performed two of Harak's

back surgeries. Dr. Casden started treating Harak in 2007, after his first back

surgery. Dr. Casden performed the second back surgery in 2007 and continued


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to see Harak routinely thereafter. After the motor vehicle accident in 2010, Dr.

Casden removed the prior hardware in Harak's back and performed a spinal

fusion at the L-4 and L-5 levels. After the third lumbar surgery, Dr. Casden

opined Harak could no longer perform the duties of a State Trooper. In his

written report submitted as evidence during the hearing, Dr. Casden

acknowledged the 2010 motor vehicle accident aggravated a pre-existing injury

"but that it was the essential cause of the disability [because Harak] was working

full duty prior to the accident."

      Harak was examined by the Board's expert, Dr. Lakin, in January 2016.

Dr. Lakin reviewed Harak's medical history and performed a physical

examination. Based on petitioner's medical history and physical examination,

Dr. Lakin concluded Harak was totally and permanently disabled due to a back

injury, which was not a direct result of any traumatic event, but rather an

aggravation of a pre-existing condition.

      Based on the testimony and written evidence, the ALJ concluded Harak

failed to meet the "burden of establishing by a preponderance of the credible

evidence that the June 27, 2010, accident was the cause of the total and

permanent disability." She also made credibility determinations regarding the

experts' testimony. The ALJ noted "the two expert witnesses offered differing


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views as to whether petitioner's disability [was] the direct result of the June 27,

2010 accident." According to the ALJ, both experts "present[ed] their opinion

to an acceptable degree of medical certainty, and based their opinion on a

physical examination, a review of history and of medical records, and measured

their findings against petitioner's job requirements."

      On balance, the ALJ accorded greater weight to the testimony of the

Board's expert and found his opinion more persuasive. She found "Dr. Lakin

offered clear, concise and detailed testimony and demonstrated impressive

knowledge in the area." Further, the ALJ concluded Dr. Lakin's opinion "was

consistent with the other medical reports and objective findings," and he

provided a "detailed tying of petitioner's condition" to a pre-existing medical

condition aggravated by the 2010 accident. In deeming Dr. Lakin's testimony

more credible, and applying well-settled case law, the ALJ determined "the

work-related accident may have aggravated or accelerated [Harak's] condition,

but the accident was not the essential significant or substantial contributing

cause of [his] inability to perform his regular and assigned duties." The ALJ

concluded "petitioner's disability was not a direct result of the alleged traumatic

events and was a result of a pre-existing condition," rendering Harak ineligible

for accidental disability retirement benefits.


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      After the ALJ issued her decision, Harak filed exceptions, relying on Dr.

Casden's expert opinion as his treating doctor and the fact that Harak was able

to perform his duties as a State Trooper without limitation prior to the 2010

accident. The Board rejected Harak's exceptions and issued a final decision,

affirming the ALJ's determination that Harak's disability was the result of a

preexisting condition and not the subject accident.

      On appeal, Harak argues the Board's determination was arbitrary,

capricious, and unreasonable. He contends the Board erred in failing to give

more weight to the testimony of his treating physician than the Board's expert

doctor. We disagree.

      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




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with enforcing." Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys.,  192 N.J. 189, 196 (2007).

       N.J.S.A. 53:5A-10(a) governs the award of accidental disability

retirement benefits for members of the State Police. To obtain such benefits, a

petitioner must prove he or she "is permanently and totally disabled as a . . .

result of the performance of his [or her] duties . . . ." Richardson,  192 N.J. at
 195. In Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys.,  83 N.J. 174 (1980), our

Supreme Court held that to qualify for accidental disability retirement benefits,

it need not be shown 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 . . . ." Id.

at 187.

      We are satisfied "that the evidence and the inferences to be drawn

therefrom" support the Board's decision that Harak's back injury was not the

direct result of the June 2010 accident, but from a pre-existing history of back

injuries, back surgeries, and post-surgery back pain treated with prescription

medication starting in 2005 when he fell in his home and continuing through the

date of the motor vehicle accident. Clowes v. Terminix Int'l, Inc.,  109 N.J. 575,

588 (1988). Having reviewed the record, the Board's decision that Harak was


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not entitled to accidental disability retirement benefits was not arbitrary,

capricious, or unreasonable and was supported by sufficient credible evidence.

We discern no basis to alter the Board's decision. See In Re Young,  202 N.J.
 50, 70-71 (2010).

      Affirmed.




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