NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-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
A-0057-19T3 2 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
A-0057-19T3 3 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
A-0057-19T3 4 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.
A-0057-19T3 5 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.
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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-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
A-0057-19T3 2 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
A-0057-19T3 3 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
A-0057-19T3 4 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.
A-0057-19T3 5 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
A-0057-19T3 6 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
A-0057-19T3 7 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.
A-0057-19T3 8