Opinion
DOCKET NO. A-3689-10T2
07-31-2012
ROBERT GRIMALDI, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
Gill & Chamas, LLC, attorneys for appellant (Richard T. Smith, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 2-10-191635.
Gill & Chamas, LLC, attorneys for appellant (Richard T. Smith, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief). PER CURIAM
Robert Grimaldi appeals from a final decision of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), denying his application for accidental disability retirement benefits. In denying the request, the Board relied upon the recommendation of an Administrative Law Judge who, after conducting an evidentiary hearing, concluded Grimaldi's disabling condition did not result from his work related injury. We affirm.
The facts are taken from the agency record. Grimaldi was employed by the Old Bridge Township Public Works Department. He performed physical duties as a trash collector, which included running between stops; jumping on and off the truck; and lifting loads weighing between 80 to 100 pounds. He also patched roads and performed recycling collections.
On September 21, 2001, while assisting a co-worker in carrying boxes down a flight of stairs, Grimaldi slipped and fell, hitting head first into a wall at the base of the steps. Grimaldi suffered a torn right anterior cruciate ligament and disc herniations at C4-C5 and C6-C7. He underwent an open procedure on his right knee, and a plate was inserted to fix the herniated discs.
Grimaldi attempted to return to work, but was unable to perform his duties and applied for accidental disability retirement benefits. Upon review of the request, the Board determined Grimaldi was totally and permanently disabled and awarded him an ordinary disability pension. However, the Board found his fall did not constitute a traumatic event and, also that his disability was not the direct result of the fall, but the cumulative result of both past and present injuries. Consequently, the Board determined Grimaldi was ineligible for accidental disability retirement benefits.
Grimaldi appealed and the matter was transferred to the Office of Administrative Law (OAL) for a hearing. Prior to the hearing, the Supreme Court issued its opinion in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007). In light of the Court's instruction in Richardson, PERS agreed to reconsider its prior determination.
Upon further review, PERS found Grimaldi's fall was a traumatic event. However, it found no basis to alter its prior finding that Grimaldi's permanent disability was not the direct result of the fall, but a culmination of several injuries. The matter was returned to the OAL for a hearing.
Grimaldi testified regarding his 2001 fall, prior injuries, accidents, and past surgeries affecting his knee and spine. He stated he was injured in a car accident and underwent cervical fusion in 1991 to repair the resulting herniated discs at C5-C6. After a six-month absence, he resumed full-time employment and participated in his extra curricular activities, which included softball, hunting, and weight lifting. In 1994, his work duties were restricted because of a knee injury. In 1999, two years prior to the subject fall, he injured his knees, right shoulder, left elbow, and left bicep, when he was struck by a vehicle after he fell in a parking lot. He underwent arthroscopic surgery on his right shoulder and both knees to repair meniscus tears. After a six-month healing period, he returned to work, initially on restricted duty, but continued to refrain from playing softball and hunting. An orthopedic specialist recommended Grimaldi stop working.
During the administrative hearing, each side offered expert testimony. Grimaldi presented David Weiss, MD, an orthopedic surgeon, who conducted a February 4, 2009 physical examination and review of Grimaldi's medical records and opined "as to prognosis, diagnosis and causation." Dr. Weiss noted spasm and tenderness in Grimaldi's neck, as well as a reduced range of motion, both of which, he acknowledged, could have predated the injuries suffered from the fall. Dr. Weiss affirmed herniation of cervical discs other than those fused in 1991. He also recorded Grimaldi's current complaints of sensory deficits following the recent injury, which Dr. Weiss suggested were not previously recorded following Grimaldi's prior neck injury. Dr. Weiss concluded Grimaldi experienced an "[a]ggravation of pre-existing cervical spine pathology." Although Dr. Weiss, in reviewing Grimaldi's MRI films, observed osteoarthritis, namely, osteophytes located at C4 to C7 likely caused by aging, and narrowing of the disc spaces between C4-C5 and C6-C7 predating the fall, he nevertheless suggested Grimaldi remained fully able to perform his employment duties before he fell.
Dr. Weiss did concede there were inconsistencies in some past medical reports. Specifically, a 1992 post-operative report stated Grimaldi suffered a "large disc rupture at C5[-C]6 with significant compression and distortion of the spinal cord[,]" which likely would cause "neck and shoulder pain on a permanent basis." Nevertheless, Dr. Weiss did not alter his diagnosis of "a strained and sprained pattern to the cervical spine[,]" confirmed by MRIs; "cervical radiculitis[,]" not confirmed by an EMG study; and "aggravation of preexisting cervical pathology."
Dr. Weiss also acknowledged Grimaldi's knee was not pristine as he experienced chondramalacia on the right knee, that is, a softening of the under surface of the patella, which can cause instability. However, Dr. Weiss found no prior records revealing complaints of problems with Grimaldi's right knee after the prior surgeries. Further, Grimaldi's post-operative records confirmed his knee tracked correctly.
Based on his review, Dr. Weiss concluded Grimaldi's total and permanent disability was caused by the September 21, 2001 accident, because the prior injuries never prevented his continued labor-intensive work performance over the previous years. Dr. Weiss opined plaintiff, likely, was not in distress prior to the 2001 accident, as he showed no signs or symptoms of discomfort, and appeared to have experienced a "complete recovery" from the prior injuries. Consequently, his total disability occurred from injuries suffered in the fall.
PERS presented David Gross, MD, who performed a medical examination of Grimaldi on August 19, 2008. Thereafter, Dr. Gross reviewed Grimaldi's medical records and issued an addendum to his report. Dr. Gross opined the disc herniation above and below the prior cervical spine fusion were degenerative changes, caused by time, following the disc fusion. He found the present condition of Grimaldi's cervical spine to be consistent with a 1990 MRI, which revealed a disc herniation at C5-C6 and bulging discs at C6-C7. Dr. Gross also pointed out Grimaldi had a "chronic long standing degenerative neck" and cervical sprain as evinced by exam reports, including two prior 1990 reports opining Grimaldi was permanently disabled and had a "very poor prognosis for complete recovery." Dr. Gross found no evidence that would distinguish the complaints following the September 2001 accident from those made prior to the accident. He maintained Grimaldi's past symptoms and treatment history could not have resulted in him being "perfectly fine" before this recent fall.
Dr. Gross reached similar conclusions regarding Grimaldi's knee injuries. He identified past trauma "going back to at least [19]95" and resultant surgeries in 1999 and 2000, with repeated courses of physical therapy. He believed Grimaldi's knee history was a "predisposing factor" for a fall.
Although Dr. Gross agreed Grimaldi experienced significant trauma from the September 2001 fall and conceded the records do not reflect Grimaldi historically voiced complaints regarding his neck or arms, he opined Grimaldi's past injuries, surgeries, and the current fall "c[a]me[] together and ma[de] him disabled." Dr. Gross affirmatively stated Grimaldi's disability was caused by a longstanding degenerative process rather than the events on the day of the fall.
The ALJ's findings and conclusions, issued on January 3, 2011, recommended the Board deny Grimaldi's claim for accidental disability retirement benefits because his disability was not the "direct result" of his September 21, 2001 workplace injury. In considering the testimony of the experts, the ALJ credited Dr. Gross as providing a "better, more credible analysis[,]" noting Dr. Weiss relied heavily on Grimaldi's statements and was not informed of the extensive nature of the injuries Grimaldi suffered in the 1999 car accident. The ALJ concluded "[t]he 2001 accident may have simply been the ultimate insult to the area, a factor no doubt . . . [causing] the disability, but given the facts here, the preponderance of the credible evidence establishes that it was not the essential significant or the substantial contributing factor." The Board adopted the ALJ's findings and conclusions.
On appeal, Grimaldi argues that based upon this record, his application for accidental retirement disability benefits was arbitrarily denied. He maintains the evidence proved he suffered a traumatic event during the performance of his regular or assigned duties, which caused his total and permanent disability, entitling him to receive accidental retirement disability benefits. We disagree.
Judicial review of administrative agency determinations is limited. Messick v. Bd. of Review, 420 N.J. Super. 321, 324 (App. Div. 2011). We accord the agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness, City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and also defer to its findings of fact. Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 29 (1995) (Handler, J., dissenting). Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable[,]" Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)), or whether the agency's findings could have been supported by the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). "[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). Accordingly, we will upset an agency determination only when it is shown to be arbitrary, capricious or unreasonable, its findings lacked support in the evidence, or that it violated the legislative grant of authority governing the agency. In re Herrmann, 192 N.J. 19, 28 (2007). That said, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (internal quotation marks omitted).
Important to our review in this matter, we note "pension statutes are 'remedial in character' and 'should be liberally construed and administered in favor of the persons intended to be benefited thereby.'" Klumb v. Bd. of Ed., 199 N.J. 14, 34 (2009) (quoting Geller v. N.J. Dep't of Treas., Div. of Pensions & Annuity Fund, 53 N.J. 591, 597-98 (1969)). The statute applicable to this case allows an injured public employee to retire and collect accidental disability benefits "if said employee is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties[.]" N.J.S.A. 43:15A-43. To qualify, the traumatic event must occur "during voluntary performance of regular or assigned duties at a place of employment before or after required hours of employment which is not in violation of any valid work rule of the employer or otherwise prohibited by the employer[.]" Ibid.
In Richardson, supra, 192 N.J. at 194-95, the Supreme Court reviewed a claim for benefits under N.J.S.A. 43:16A-7(1), which governs accidental disability under the police and firemen's pensions system, a statute that contains similar requirements for eligibility as N.J.S.A. 43:15A-43, governing PERS plans. The Court determined an applicant seeking accidental disability benefits must prove:
1. that he [or she] is permanently and totally disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
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);
4. that the disability was not the result of the member's willful negligence; and
5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
[Richardson, supra, 192 N.J. at 212-13].
In the current matter, prior to the hearing, Grimaldi's permanent and total disability was acknowledged. Further, PERS conceded Grimaldi's fall was "a traumatic event," defined in Richardson as "an identifiable, unanticipated mishap," which had occurred during his work duties and was not a result of willful negligence. Id. at 213. The issue in dispute was causation.
Grimaldi's burden of proof requires substantial credible evidence be offered to show his disability was the "direct result" of the September 28, 2001 fall, or, put another way, that the injuries suffered during the fall were the "essential significant or the substantial contributing cause of the resultant disability[,]" Gerba v Bd. of Trs., 83 N.J. 174, 186 (1980), but not an aggravation of a preexisting injury. Richardson, supra, 192 N.J. at 213. Accord Korelnia v. Bd. of Trs. of the Pub. Emps. Ret. Sys., 83 N.J. 163, 170 (1980). It is clear, that "[w]here there exists an underlying condition such as osteoarthritis, which itself has not been directly caused, but is only aggravated or ignited by the trauma, then the resulting disability is, in statutory parlance, 'ordinary' rather than 'accidental' and gives rise to 'ordinary' pension benefits." Gerba, supra, 83 N.J. at 186.
The addition of the direct result requirement reflects the Legislature's intention to impose a more exacting standard of medical causation, rejecting the prior statute's use of the workers' compensation concept "an 'accident' can be found in the impact of ordinary work effort upon a progressive disease[.]" Gerba, supra, 83 N.J. at 185-86.
Grimaldi's fall was serious and he experienced trauma to his neck and knee. However, the unrefuted evidence showed these areas previously had been injured and were the sites of prior surgeries to ameliorate or correct these past traumas. Beginning in 1990, Grimaldi underwent cervical fusion of his back and neck discs. The 1999 accident required arthroscopic surgeries on his knees and multiple series of physical therapy. His medical conditions caused long-term absence from work and when he returned to his regular assignment, approximately seven months prior to his September 28, 2001 fall, he was on limited duty. Further evidence of the effects of the prior injuries is found in early 2001, before the fall, when Grimaldi reported he could no longer play softball, go bow hunting, was losing strength, and could not lift weight because his knees and shoulder ached and caused discomfort even when sitting.
The ALJ's fact-finding, adopted by the Board, considered and rejected as not credible Dr. Weiss's opinion that Grimaldi suffered no longstanding effects from his prior injuries and that the osteoarthritis resulting therefrom was not a contributing factor to his permanent disability. The evidence accepted by the ALJ as expressed by Dr. Gross, established Grimaldi's prior traumas to his neck, back, and knees resulted in degenerative disease, weakening his joints, and contributing to his disability.
Grimaldi's argument that his return to full-time employment after his 1999 injury shows he had fully recovered and suffered no lingering adverse affects from the prior conditions is not dispositive. This argument was considered when advanced by Dr. Weiss and rejected as less credible than Dr. Gross's expert opinion that Grimaldi's preexisting degenerative conditions, along with his continued work efforts and the fall combined to result in his disability. Relying on Dr. Gross, the Board rejected a contention that disability resulted solely from the September 21, 2001 fall, concluding it unreasonably discounted Grimaldi's previously fused neck and back; ruptured left biceps tendon, right rotator cuff tear, ulnar nerve transpositions to both arms; and right and left knee arthroscopies. We have no basis to disturb this conclusion.
Further, we note Grimaldi's prior medical records were in evidence and recorded that he made several complaints of problems emanating from the same affected areas as those again injured in the fall. The records also included expert opinions that Grimaldi was permanently disabled prior to the 2001 fall, disputing Grimaldi's claims of complete recovery. The Board accepted the ALJ's finding that the evidence was compelling and determined Grimaldi's preexisting degenerative conditions, unrelated to the fall, contributed to his disabling condition and obviated a finding of accidental disability. Richardson, supra, 192 N.J. at 213.
Grimaldi also maintains the Board erred in failing to consider his ACL injury as causing his permanent disability. Grimaldi suggests he never had an injury to his ACL before he fell. Piecing together Dr. Gross's cross-examination testimony, he suggests the expert offered an opinion that this ACL injury alone could satisfactorily cause permanent and total disability from his physically demanding job. We disagree that the evidence establishes this proposition. Dr. Weiss offered no such opinion and Dr. Gross's responses to essentially hypothetical questions cannot serve as substantial credible evidence to support such a finding.
Following our review, we determine no basis to suggest the Board's adoption of the ALJ's findings was arbitrary or capricious. The ALJ's findings were fully supported by substantial credible evidence in the record. Accordingly, there is no basis to alter the Board's conclusion denying Grimaldi's application for accidental disability retirement benefits. In re Young, 202 N.J. 50, 70 (2010).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION