NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3926-19
CARMEN COLON-RIVERA,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, TEACHERS' PENSION and ANNUITY FUND,
Respondent-Respondent. ____________________________
Argued December 1, 2021 – Decided December 14, 2021
Before Judges Whipple, Geiger and Susswein.
On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, Department of the Treasury.
Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, LLC, attorneys; Samuel M. Gaylord on the brief).
Connor V. Martin, Deputy Attorney General, argued the cause for respondent (Andrew J. Bruck, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Connor V. Martin, on the brief).
PER CURIAM
Appellant Carmen Colon-Rivera appeals from a final decision of
respondent Board of Trustees (the Board) of the Teachers' Pension and Annuity
Fund (TPAF) denying her application for accidental disability retirement
benefits pursuant to N.J.S.A. 18A:66-39(c). We affirm.
We glean the following facts from the record. Appellant was employed
by the Trenton Board of Education as a world language teacher at Trenton
Central High School for approximately fourteen years. Her job responsibilities
included making lesson plans, executing a program of study, "[g]uid[ing] the
learning process toward the achievement of curriculum goals," choosing
textbooks and other materials, and "[p]erform[ing] such tasks and assum[ing]
such responsibilities as directed by the principal." She taught five ninety-minute
class periods.
Although not stated in the job description, appellant believed that standing
and walking around kept her students engaged and was a key part of the job.
She also believed she was expected to walk around and stand while teaching and
that not doing so would result in her losing her job.
A-3926-19 2 On September 27, 2010, while at work preparing a desk near her own for
a handicapped student, appellant attempted to move a box of textbooks that she
did not realize was open. Five or six hardcover textbooks fell on her right foot,
injuring her. Appellant reported the accident to the school nurse, provided
information for generating a first accident report, and later that day began a
course of treatment at Workers Compensation Corporate Health Center where
she was diagnosed with ruptured tendons. The Center prescribed physical
therapy and she returned to work the next day.
The only accommodation appellant requested from the principal was to be
permitted to wear sneakers while teaching. Appellant went to physical therapy
but continued experiencing pain and swelling in her right foot after standing and
walking at work. Appellant compensated for her right foot injury by favoring
her left foot and developed Achilles' tendinitis and pain in her left foot.
Appellant was initially treated by Dr. Fredric Kleinbart, an orthopedic
surgeon, who rendered non-surgical care from February 24, 2011, to December
8, 2011, but recommended surgery for the ruptured tendon.
Appellant sought a second opinion from Dr. Jon Ark, an orthopedic
surgeon. He also recommended tendon surgery. Dr. Ark treated appellant from
January 23, 2012, to January 14, 2015, and performed three surgeries.
A-3926-19 3 On October 17, 2012, Dr. Ark performed a third metatarsal osteotomy
tendon transfer of the flexor digitorum profundus tendon to the dorsum of the
toe, correction of the [proximal interphalangeal (PIP)] third pseudarthrosis, and
exterior tendon lengthening to treat a right third metatarsal-phalangeal joint
dislocation and deformity of the interphalangeal joint of the third toe. Appellant
did not return to work after the 2012 surgery.
On August 12, 2013, Dr. Ark performed unrelated surgery for right great
toe arthritis and a failed right great toe bunion correction. He performed a right
foot Silver bunionectomy, right great toe metatarsal-phalangeal joint fusion, and
hardware removal.
On August 13, 2014, Dr. Ark performed a right third toe amputation due
to a right third toe malunion. Appellant also underwent a course of postoperative
therapy.
Appellant's prior medical history included treatment of significant injuries
to the right third toe. On June 29, 2007, Dr. John F. Stanoch, a podiatrist,
performed an osteotomy of the second metatarsal; flexor tenolysis 1 of the
1 Tenolysis is a surgical procedure to release adhered tendons. https://www.merriam-webster.com/medical/tenolysis (last visited December 3, 2021). A-3926-19 4 second, third, and fourth metatarsal-phalangeal joints on the right foot; and
arthroplasty of the second, third, and fourth toes.
On January 5, 2015, more than four years after the 2010 accident,
appellant applied for accidental disability retirement benefits. The Board
retained Dr. Jeffrey F. Lakin, a board-certified orthopedic surgeon, as its expert.
He performed an independent medical examination of appellant on July 1, 2015.
On physical examination, Dr. Lakin reported:
On examination of the right foot and leg, there is a well-healed incision in the dorsal aspect consistent with the prior surgeries to the second, third and fourth toes longitudinally of the dorsum. The third toe is no long present. There is no tenderness of the dorsum of the foot. There is no motion of the metatarsal phalangeal joint of the great toe. There is no calf or thigh tenderness. Plantar flexion and dorsiflexion are 5/5. Ankle inversion and eversion are 5/5. There is 10 degrees of dorsiflexion and 40 degrees of plantar flexion with inversion to 25 degrees and eversion to 20 degrees which is symmetrical to the contralateral lower extremity. There is no tenderness over the medial or lateral malleoli. There is a negative anterior drawer sign of the ankle. Gait is unremarkable. There is no calf or thigh tenderness. There was no tenderness over the Achilles tendon and over the plantar fascia of the right foot.
His review of the imaging studies revealed:
An MRI of the right foot performed on [October 16, 2008], prior to the work-related accident of [September 27, 2010], revealed status post right foot
A-3926-19 5 surgery. There is subluxation of the distal and mid third phalanges of the third toe. There is no evidence of fluid collection or osteomyelitis. The flexor tendon of the third toe could be followed to the distal portion of the third metatarsal and is not seen distal to that.
An x-ray report of the right foot of [September 27, 2010] identified postoperative changes and questionable mild subluxation of the PIP joint of the third digit.
Dr. Lakin concluded that appellant:
[H]ad significant preexisting conditions to the right foot with prior surgery to the right third toe prior to the date of injury of [September 27, 2010].
Based upon this examination and review of the job description as a teacher, [appellant] is not totally and permanently disabled from the performance of the normal duties of her job. It should be noted that she had significant preexisting conditions to the right foot prior to the work related accident of [September 27, 2010]. Based upon this examination, she sustained a sprain and a contusion to the right foot and has excellent strength and excellent motion of her right foot.
On August 6, 2015, the Board denied her application. The Board found
that the event that caused appellant's reported disability was: (a) "identifiable as
to time and place"; (b) "occurred during and as a result of [appellant's] regular
or assigned duties"; and (c) "not the result of [appellant's] willful negligence."
The basis for the denial of accidental disability was that: (a) appellant was "not
A-3926-19 6 totally and permanently disabled from the performance of [her] regular and
assigned job duties"; (b) appellant was "not physically or mentally incapacitated
from the performance of [her] usual or other duties that [her] employer is willing
to offer"; and (c) "the event that caused [her] disability claim [was] not
undesigned and unexpected." However, given her years of service, appellant
qualified for a deferred retirement, allowing her to collect monthly ordinary
retirement benefits upon reaching normal retirement age.
Appellant appealed the denial, and the matter was transferred to the Office
of Administrative Law (OAL) for determination as a contested case and assigned
to an Administrative Law Judge (ALJ). The ALJ conducted a two-day hearing.
Appellant, Dr. Ark, and Dr. Lakin testified at the hearing. On March 6, 2020,
the ALJ issued a sixteen-page Initial Decision, which summarized the testimony
of each witness, set forth her factual and credibility findings, analyzed the
applicable legal principles, and applied them to the facts.
The ALJ found that overall, appellant:
[P]resented credible testimony. She was candid and direct in her description of events and of her treatment . . . . She was also credible in her recitation of the pain and difficulties she has encountered with her feet and the manner in which it affected her ability to move around her classroom and stand for long periods. Her descriptions of pain and swelling she regularly encountered in her right foot and the ensuing effect on
A-3926-19 7 her left foot was corroborated by her course of treatment, resulting in four surgeries, including a toe amputation, prescription pain medication, orthotics and the use of a cane.
Regarding the expert testimony, the ALJ found that Dr. Ark, appellant's
expert, was more credible on the issue of "whether [appellant] suffers from foot
conditions which restrict her ability to stand and walk for periods of time." The
ALJ found that he was familiar with appellant's medical treatment, as he
performed three surgeries on her; his testimony was corroborated and consistent
with appellant's pain in her right foot; and overall, "Ark's discussion of those
underlying issues was more comprehensive and gave credence to his course of
treatment and surgeries for [appellant], as well as his conclusion that she was
restricted to sedentary work." The judge found that appellant suffered from foot-
related conditions which restrict her mobility and confine her to sedentary work.
On the other hand, the ALJ found the Board's expert, Dr. Lakin, more
credible on the issue of "whether petitioner's foot issues are the result of a
condition pre-existing the September 27, 2010, book incident, or were a result
of that accident . . . ." The judge found Dr. Lakin more specific on this issue,
corroborated by medical records that showed appellant had significant foot
surgery and pain before the incident. The incident "produced a contusion of the
foot, but no fractures or other discernible damage to the foot." Although the
A-3926-19 8 incident "aggravated the underlying synovitis," there was already an "underlying
foot deformity . . . present." The judge found that appellant's foot condition and
difficulties standing and walking were not the direct result of the September 27,
2010 incident.
The ALJ then analyzed the legal standards for accidental disability
benefits. First, the judge explained that the incident was not "undesigned and
unexpected" because appellant was doing something that "was part of her
regular and ordinary job duties, and there was no evidence of an intervening
event or party that caused the books to fall on her foot." Moving books to
provide them to students "was a normal and regular part of her job as a teacher
. . . ." "There was no external event or happening which disrupted that function."
Next, she found that appellant's disability was not a direct result of the
incident, but a result of a pre-existing condition.
[T]he record shows that petitioner had both a deformity in her right foot with a broken tendon, as well as symptomology related to that condition up to and just prior to the incident in which books fell on that foot. Viewing the record as a whole and the expert medical testimony, petitioner has failed her burden of showing that her condition was a direct result of the September 2010, accident. The evidence showed that her subsequent surgeries and foot difficulties were the result of the surgery and foot issues which existed prior to her accident.
A-3926-19 9 As to proving the element of total and permanent disability, the ALJ
explained that appellant's "testimony about her job duties must align with the
official job description." In that regard, "an employer's willingness to
accommodate a member's physical or mental condition may influence a
determination whether the member is incapacitated for the performance of
duty." The ALJ noted that Dr. Ark "placed restrictions on [appellant's] walking
and driving" and opined that she "could not stand longer than two hours per day
and not walk more than 100 feet per episode." But on cross-examination, Dr.
Ark "admitted that if accommodations regarding walking and standing were
provided, she could continue to teach." The ALJ determined:
[Appellant] has not met her burden of proving by the preponderance of the evidence that she is totally and permanently disabled from the performance of her duties. Although she was credible in her description of how she stood and walked during her teaching duties, such movement was not required in her job description. Nor did she present additional testimony or evidence to show that such movement was required of her. While her foot condition restricts her to sedentary work and to that extent, she is disabled from the manner in which she has taught over the years, that does not disable her from the essential functions of teaching as set forth in her job description. Nor did [appellant] seek any accommodations for her claimed disability which could have allowed her to teach in a manner that took her physical restrictions into account.
A-3926-19 10 The ALJ concluded that appellant had not proven: (1) "the incident of
September 27, 2010, was undesigned and unexpected"; (2) "her disability was
the direct result of that incident"; and (3) "she is totally and permanently
disabled from her position as a high school language teacher." Accordingly, the
ALJ upheld the Board's denial of her application for accidental disability
retirement benefits. Appellant appealed the Initial Decision.
On May 12, 2020, the Board issued a final administrative decision
adopting the ALJ's initial decision, which affirmed the Board's determination
denying appellant's application for accidental disability retirement benefits.
This appeal followed.
Petitioner raises the following points for our consideration:
POINT I
PETITIONER QUALIFIES FOR ACCIDENTAL DISABILITY RETIREMENT BENEFITS AS 2 OUTLINED IN RICHARDSON AS THE DISABLING EVENT WAS UNDESIGNED AND UNEXPECTED AND OCCURRED DURING AND AS A RESULT OF THE PERFORMANCE OF HER REGULAR JOB DUTIES.
POINT II
DR. ARK'S TESTIMONY AS AN AUTHORIZED TREATING PHYSICIAN THAT PETITIONER WAS
2 Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007). A-3926-19 11 PERMANENTLY AND TOTALLY DISABLED FROM THE PERFORMANCE OF HER REGULAR AND ASSIGNED JOB DUTIES AS A DIRECT RESULT OF THE ACCIDENT IS ENTITLED TO GREATER WEIGHT THAN THE TESTIMONY OF DR. LAKIN, WHO PERFORMED A ONE-TIME INDEPENDENT MEDICAL EVALUATON.
"Our review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re
Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision should be upheld
"unless there is a clear showing that it is arbitrary, capricious, or unrea sonable,
or that it lacks fair support in the record." Ibid. (quoting Herrmann, 192 N.J. at
27-28). "The burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the administrative
action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006) (citations
omitted).
We accord deference to the Board's interpretation of the statutes it is
charged with enforcing. Thompson v. Bd. of Trs., Teachers' Pension & Annuity
Fund, 449 N.J. Super. 478, 483 (App. Div. 2017) (quoting Richardson, 192 N.J.
at 196), aff'd o.b., 233 N.J. 232 (2018). "'Such deference has been specifically
extended to state agencies that administer pension statutes,' because 'a state
agency brings experience and specialized knowledge to its task of administering
A-3926-19 12 and regulating a legislative enactment within its field of expertise.'" Id. at 483
(quoting Piatt v. Bd. of Trs., Police & Firemen’s Ret. Sys., 443 N.J. Super. 80,
99 (App. Div. 2015)).
The factual "findings of an ALJ 'are considered binding on appeal, when
supported by adequate, substantial and credible evidence.'" Oceanside Charter
Sch. v. Dep't of Educ., 418 N.J. Super. 1, 9 (App. Div. 2011) (quoting In re
Taylor, 158 N.J. 644, 656 (1999)). "The choice of accepting or rejecting
testimony of witnesses rests with the administrative agency, and where such
choice is reasonably made, it is conclusive on appeal." Ibid. (quoting In re
Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976)). Deference is
"especially appropriate when the evidence is largely testimonial and involves
questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)).
"A reviewing court 'may not substitute its own judgment for the agency's,
even though the court might have reached a different result.'" In re Stallworth,
208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). "This
is particularly true when the issue under review is directed to the agency's
special 'expertise and superior knowledge of a particular field.'" Id. at 195
(quoting Herrmann, 192 N.J. at 28). When controlling facts are disputed, we
A-3926-19 13 accord deference to the Board's factual findings. Oceanside Charter Sch., 418
N.J. Super. at 9.
Like all public retirement systems, the TPAF provides for both ordinary
and accidental retirement benefits. N.J.S.A. 18A:66-39. The principal
difference between ordinary and accidental disability retirement "is that
ordinary disability retirement need not have a work connection." Patterson v.
Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 42 (2008). A TPAF member
may be retired on an accidental disability pension if the 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. 18A:66-39(c); accord Kasper v. Bd. of Trs., Teachers'
Pension & Annuity Fund, 164 N.J. 564, 572-73 (2000). Appellant must
demonstrate the accident "constitutes the essential significant or the substantial
contributing cause of the ultimate disability." Gerba v. Bd. of Trs., Pub. Emps.'
Ret. Sys., 83 N.J. 174, 188 (1980). Accidental disability retirement benefits are
greater than ordinary disability retirement benefits. Patterson, 194 N.J. at 43.
Applying these principles, we affirm substantially for the reasons
expressed in the ALJ's comprehensive and well-reasoned Initial Decision. We
add the following comments.
A-3926-19 14 We first note that an ALJ's factual findings of lay-witness credibility
generally receive deference. See N.J.S.A. 52:14B-10(c) ("The [Board] may not
reject or modify any findings of fact as to issues of credibility of lay witness
testimony unless . . . the findings are arbitrary, capricious or unreasonable or are
not supported by sufficient, competent, and credible evidence in the record.").
In considering that evidence, we "give 'due regard to the opportunity of the one
who heard the witnesses to judge of their credibility . . . .'" Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Close v. Kordulak Bros., 44 N.J.
589, 599 (1965)). "[I]t is not for us or the agency head to disturb that credibility
determination, made after due consideration of the witnesses' testimony and
demeanor during the hearing." H.K. v. State, Dep't Hum. Servs., 184 N.J. 367,
384 (2005).
Generally, "where the medical testimony is in conflict, greater weight
should be accorded to the testimony of the treating physician" as opposed to an
evaluating physician who has examined the employee on only one occasion.
Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div. 1955); accord
Mernick v. Div. of Motor Vehicles, 328 N.J. Super. 512, 522 (App. Div. 2000).
"Nevertheless, expert testimony need not be given greater weight than other
evidence nor more weight than it would otherwise deserve in light of common
A-3926-19 15 sense and experience." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App.
Div. 2001) (citing In re Yaccarino, 117 N.J. 175, 196 (1989)). Accordingly,
"[t]he factfinder may accept some of the expert's testimony and reject the rest."
Ibid. (citing Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993)).
Moreover, "a factfinder is not bound to accept the testimony of an expert
witness, even if it is unrebutted by any other evidence." Id. at 431 (citing
Johnson v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429, 438 (App. Div.
1997)). "Indeed, a judge is not obligated to accept an expert's opinion, even if
the expert was 'impressive.'" State v. M.J.K., 369 N.J. Super. 532, 549 (App.
Div. 2004) (quoting State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div.
1993)).
"[T]he weight to which an expert opinion is entitled can rise no higher
than the facts and reasoning upon which that opinion is predicated." State v.
Jenewicz, 193 N.J. 440, 466 (2008) (quoting Johnson v. Salem Corp., 97 N.J.
78, 91 (1984)). "This is particularly true when, as here, the factfinder is
confronted with directly divergent opinions expressed by the experts." M.J.K.,
369 N.J. Super. at 549. The factfinder, rather than a reviewing court, "is better
positioned to evaluate the witness' credibility, qualifications, and the weight to
A-3926-19 16 be accorded her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382
(1999) (citing Bonnco, 115 N.J. at 607).
Here, the evidence largely consisted of prior medical conditions and
treatment, conflicting expert testimony, and appellant's subjective interpretation
of her job duties and obligations, which required the factfinder to determine the
credibility of the witnesses and the weight to accord to their testimony.
Although Dr. Ark was appellant's treating physician, the aspects of Dr. Lakin's
testimony that the ALJ found more credible were based on his review of the
appellant's medical history, imaging studies, and physical examination, and
were thereby supported by the record.
Appellant used a style of teaching that involved continuous movement,
standing, and walking throughout during classes. Her job description did not
require that method of teaching. Without any objective basis, she assumed that
she would lose her job if she did not continually move around the classroom
while teaching. On that unsupported basis, she claimed she was permanently
and totally disabled from performing her teaching duties. The ALJ properly
rejected that claim. Appellant is not wheelchair-bound and does not use crutches
or a walker. Appellant's own expert opined that she could stand up to two hours
per day and walk up to 100 feet at a time. On cross-examination, her expert
A-3926-19 17 admitted that appellant could continue to teach with walking and standing
accommodations. The only accommodation that appellant requested from her
employer was to wear sneakers while teaching; she never requested any
accommodations regarding the amount of standing or walking. She did not
demonstrate that she was unable to perform her job duties with reasonable
accommodations.
During oral argument before this court, appellant acknowledged that if she
had dropped the whole box containing the books on her foot, the accident would
not have been "undesigned and unexpected." She argued that because the books
unexpectedly fell out a box that she did not realize was open, the accident was
"undesigned and unexpected." We view this as a distinction without a
difference.
We discern no basis to overturn the Board's determination that appellant
was ineligible for accidental disability retirement benefits. The ALJ's findings
and conclusions, which the Board adopted, are supported by substantial credible
evidence in the record and consonant with applicable legal principles. The
Board's final decision was not arbitrary, capricious, or unreasonable.
Affirmed.
A-3926-19 18