NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2061-17T2
DIONISIO RAMOS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent. _____________________________
Submitted March 4, 2019 – Decided April 3, 2019
Before Judges Messano and Fasciale.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. 2-10-308765.
Feeley & LaRocca, LLC, attorneys for appellant (Pablo N. Blanco, of counsel and on the brief; John D. Feeley, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Juliana C. DeAngelis, Deputy Attorney General, on the brief). PER CURIAM
Pursuant to N.J.S.A. 43:15A-43, a member of the Public Employees'
Retirement System (PERS) is eligible for accidental disability retirement if he
"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 . . . ." (emphasis added). In Richardson v. Board of Trustees, Police &
Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), interpreting
N.J.S.A. 43:16A-7, a similar provision of the Police and Firemen's Retirement
System, the Court held that to obtain accidental disability benefits a member
must prove:
1. that he is permanently and totally disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
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);
3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
4. that the disability was not the result of the member's willful negligence; and
A-2061-17T2 2 5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
We have held the same test applies under the PERS statutory scheme. Brooks
v. Bd. of Trs., Pub. Emps.' Ret. Sys., 425 N.J. Super. 277, 281 (App. Div. 2012).
Appellant Dionisio Ramos was employed by the City of Newark as a truck
driver. In February 2014, his snowplow struck a "concrete barrier or wall"
obscured by snow. Ramos injured his right thigh and back and received epidural
injections to relieve pain caused by a herniated disc. He returned to work.
However, in October 2014, when he again experienced pain, Ramos
underwent a microdiscectomy to repair the herniation. His treating doctor
examined Ramos in December and concluded he was progressing well and could
return to work in six-to-eight weeks. Sometime between then and January,
however, Ramos slipped on some ice, twisting his back in the process. Another
MRI revealed a "recurrent herniated disc" at the same level. Two months later,
Ramos underwent spinal fusion surgery and never returned to work.
Ramos applied for accidental disability benefits. The Board of Trustees
(the Board) of PERS determined that Ramos satisfied most of the standards set
forth in Richardson. However, the Board concluded the disability was "the
result of a pre-existing disease alone or a pre-existing disease that is aggravated
A-2061-17T2 3 or accelerated by the work effort." It awarded Ramos ordinary disability
benefits. He appealed, and the matter was transferred to the Office of
Administrative Law as a contested case.
The Administrative Law Judge considered the testimony of Ramos, Dr.
David Weiss, a board-certified orthopedist called as a witness by Ramos, and
Dr. Andrew Hutter, an orthopedic surgeon who testified on behalf of the Boar d.
The ALJ made factual findings, which the Board later accepted and adopted.
The ALJ found the facts we outlined above. She also found that Ramos
did not need fusion surgery prior to the January 2015 slip on ice, and that, while
spontaneous recurring disc herniations may occur in between nine-and-twenty-
one percent of the cases, trauma can cause a recurrent herniation. The ALJ
framed the "issue" as "whether Ramos['s] disability is the direct result of the
February 2014 snow[]plow accident or the twisting injury of January 2015." The
ALJ distinguished the case from the Court's decision in Gerba v. Board of
Trustees, Public Employees' Retirement System, 83 N.J. 174 (1980), and our
decision in Petrucelli v. Board of Trustees, Public Employees' Retirement
System, 211 N.J. Super. 280 (App. Div. 1986), noting those cases dealt with the
effect of workplace accidental injuries upon pre-existing conditions or injuries.
A-2061-17T2 4 Here, the issue was simply whether the earlier snowplow accident caused
Ramos's disability.
The ALJ noted the doctors' differing opinions but found Dr. Hutter "more
persuasive." She concluded:
Prior to the twisting injury . . . , [Ramos] was improving and would have been able to return to work according to [his treating doctor]. The evidence and testimony did not show that the February 2014 snow[]plow accident was the essential significant or substantial contributing cause of the disability because Ramos was recovering from the October 2014 surgery and it was anticipated that he would return to work in six[-]to[-]eight weeks ....
The ALJ affirmed the Board's denial of accidental disability benefits, and the
Board, in turn, adopted the ALJ's decision in its final administrative decision.
This appeal followed.
Unlike several other decisions that involve a workplace injury aggravating
a pre-existing injury or condition, Ramos argues this appeal presents a "purely
legal issue" never addressed before, i.e., "whether a public employee who
sustains a subsequent aggravation of an injury initially suffered in a workplace
accident should . . . be denied an accidental disability pension." We agree this
case presents factual circumstances converse to those in most reported decisions.
A-2061-17T2 5 However, we find nothing particularly unique about the legal analysis required
to resolve this appeal. We affirm.
Our review of the Board's decision is limited. Russo v. Bd. of Trs., Police
& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). We will sustain the Board's
decision "unless there is a clear showing that it is arbitrary, capricious, or
unreasonable, or that it lacks fair support in the record." Ibid. (quoting In re
Herrmann, 192 N.J. 19, 27-28 (2007)). "A reviewing court 'must be mindful of,
and deferential to, the agency's expertise and superior knowledge of a particular
field.'" Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150,
158 (2018) (quoting Circus Liquors, Inc. v. Governing Body of Middletown
Twp., 199 N.J. 1, 10 (2009)). "Moreover, '[a] reviewing court may not substitute
its own judgment for the agency's, even though the court might have reached a
different result.'" Ibid. (alteration in orginal) (quoting In re Stallworth, 208 N.J.
182, 194 (2011)).
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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-2061-17T2
DIONISIO RAMOS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent. _____________________________
Submitted March 4, 2019 – Decided April 3, 2019
Before Judges Messano and Fasciale.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. 2-10-308765.
Feeley & LaRocca, LLC, attorneys for appellant (Pablo N. Blanco, of counsel and on the brief; John D. Feeley, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Juliana C. DeAngelis, Deputy Attorney General, on the brief). PER CURIAM
Pursuant to N.J.S.A. 43:15A-43, a member of the Public Employees'
Retirement System (PERS) is eligible for accidental disability retirement if he
"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 . . . ." (emphasis added). In Richardson v. Board of Trustees, Police &
Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), interpreting
N.J.S.A. 43:16A-7, a similar provision of the Police and Firemen's Retirement
System, the Court held that to obtain accidental disability benefits a member
must prove:
1. that he is permanently and totally disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
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);
3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
4. that the disability was not the result of the member's willful negligence; and
A-2061-17T2 2 5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
We have held the same test applies under the PERS statutory scheme. Brooks
v. Bd. of Trs., Pub. Emps.' Ret. Sys., 425 N.J. Super. 277, 281 (App. Div. 2012).
Appellant Dionisio Ramos was employed by the City of Newark as a truck
driver. In February 2014, his snowplow struck a "concrete barrier or wall"
obscured by snow. Ramos injured his right thigh and back and received epidural
injections to relieve pain caused by a herniated disc. He returned to work.
However, in October 2014, when he again experienced pain, Ramos
underwent a microdiscectomy to repair the herniation. His treating doctor
examined Ramos in December and concluded he was progressing well and could
return to work in six-to-eight weeks. Sometime between then and January,
however, Ramos slipped on some ice, twisting his back in the process. Another
MRI revealed a "recurrent herniated disc" at the same level. Two months later,
Ramos underwent spinal fusion surgery and never returned to work.
Ramos applied for accidental disability benefits. The Board of Trustees
(the Board) of PERS determined that Ramos satisfied most of the standards set
forth in Richardson. However, the Board concluded the disability was "the
result of a pre-existing disease alone or a pre-existing disease that is aggravated
A-2061-17T2 3 or accelerated by the work effort." It awarded Ramos ordinary disability
benefits. He appealed, and the matter was transferred to the Office of
Administrative Law as a contested case.
The Administrative Law Judge considered the testimony of Ramos, Dr.
David Weiss, a board-certified orthopedist called as a witness by Ramos, and
Dr. Andrew Hutter, an orthopedic surgeon who testified on behalf of the Boar d.
The ALJ made factual findings, which the Board later accepted and adopted.
The ALJ found the facts we outlined above. She also found that Ramos
did not need fusion surgery prior to the January 2015 slip on ice, and that, while
spontaneous recurring disc herniations may occur in between nine-and-twenty-
one percent of the cases, trauma can cause a recurrent herniation. The ALJ
framed the "issue" as "whether Ramos['s] disability is the direct result of the
February 2014 snow[]plow accident or the twisting injury of January 2015." The
ALJ distinguished the case from the Court's decision in Gerba v. Board of
Trustees, Public Employees' Retirement System, 83 N.J. 174 (1980), and our
decision in Petrucelli v. Board of Trustees, Public Employees' Retirement
System, 211 N.J. Super. 280 (App. Div. 1986), noting those cases dealt with the
effect of workplace accidental injuries upon pre-existing conditions or injuries.
A-2061-17T2 4 Here, the issue was simply whether the earlier snowplow accident caused
Ramos's disability.
The ALJ noted the doctors' differing opinions but found Dr. Hutter "more
persuasive." She concluded:
Prior to the twisting injury . . . , [Ramos] was improving and would have been able to return to work according to [his treating doctor]. The evidence and testimony did not show that the February 2014 snow[]plow accident was the essential significant or substantial contributing cause of the disability because Ramos was recovering from the October 2014 surgery and it was anticipated that he would return to work in six[-]to[-]eight weeks ....
The ALJ affirmed the Board's denial of accidental disability benefits, and the
Board, in turn, adopted the ALJ's decision in its final administrative decision.
This appeal followed.
Unlike several other decisions that involve a workplace injury aggravating
a pre-existing injury or condition, Ramos argues this appeal presents a "purely
legal issue" never addressed before, i.e., "whether a public employee who
sustains a subsequent aggravation of an injury initially suffered in a workplace
accident should . . . be denied an accidental disability pension." We agree this
case presents factual circumstances converse to those in most reported decisions.
A-2061-17T2 5 However, we find nothing particularly unique about the legal analysis required
to resolve this appeal. We affirm.
Our review of the Board's decision is limited. Russo v. Bd. of Trs., Police
& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). We will sustain the Board's
decision "unless there is a clear showing that it is arbitrary, capricious, or
unreasonable, or that it lacks fair support in the record." Ibid. (quoting In re
Herrmann, 192 N.J. 19, 27-28 (2007)). "A reviewing court 'must be mindful of,
and deferential to, the agency's expertise and superior knowledge of a particular
field.'" Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150,
158 (2018) (quoting Circus Liquors, Inc. v. Governing Body of Middletown
Twp., 199 N.J. 1, 10 (2009)). "Moreover, '[a] reviewing court may not substitute
its own judgment for the agency's, even though the court might have reached a
different result.'" Ibid. (alteration in orginal) (quoting In re Stallworth, 208 N.J.
182, 194 (2011)). We are not, however, bound by the agency's interpretation of
a statute, which, along with relevant case law, we review de novo. Mount v. Bd.
of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 418-19 (2018).
"[T]he choice of accepting or rejecting testimony from witnesses resides
with the administrative agency, and so long as that choice is reasonably made it
A-2061-17T2 6 is accorded deference on appeal." In re Young, 202 N.J. 50, 70-71 (2010)
(quoting Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001)).
Here, the ALJ and the Board found Dr. Hutter more credible. His opinion
was that Ramos's spine was "compromised by the initial injury and was
improving after he had surgery to correct the weakened condition." According
to Dr. Hutter, Ramos would have had the same treatment after the January 2015
twisting injury — spinal fusion surgery — even if the first trauma — the
snowplow accident — had not occurred. Dr. Hutter opined that the second
incident was the cause of Ramos's recurrent disc herniation. We defer to the
Board's acceptance of these opinions.
In order to prove his eligibility for accidental disability pension benefits,
Ramos needed to prove that his disability was the "direct result of [the 2014]
traumatic event." Richardson, 192 N.J. at 212.
[T]he purpose behind the Legislature's change of the term "result" to "direct result" was "intended to impose a stringent test of medical causation and . . . that the trauma . . . must at the very least be the essential significant or the substantial contributing cause of the disability."
[Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 577 (2000) (alteration in original) (quoting Korelnia v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 163, 170 (1980))].
A-2061-17T2 7 Having accepted Dr. Hutter's opinions, the Board's conclusion that
Ramos's disability was not the "direct result" of the 2014 snowplow incident
naturally followed. Under our highly deferential standard of review, we find no
basis to disturb that decision.
Affirmed.
A-2061-17T2 8