LYNN D. WESLEY VS. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 19, 2019
• Docket: A-2854-17T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2854-17T1

LYNN D. WESLEY,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent. ____________________________

Submitted February 13, 2019 – Decided March 19, 2019

Before Judges Fuentes and Vernoia.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. #2-1229384.

William B. Hildebrand, attorney for appellant.

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher R. Meyer, Deputy Attorney General, on the brief).

PER CURIAM Lynn D. Wesley, a Family Services Specialist employed by the New

Jersey Division of Youth and Family Services, 1 appeals from the final agency

decision of the Board of Trustees (Board) of the Public Employees' Retirement

System (PERS) denying her application for accidental disability retirement

benefits. Because our standard of review requires deference to an agency's

findings of fact, credibility determinations and expertise, we affirm.

I.

In January 2012, Wesley filed an application for accidental disability

retirement benefits, claiming a permanent disability resulting from two

automobile accidents: a September 28, 2009 accident that did not occur during

the performance of her job duties and a September 14, 2010 accident that d id

occur during the performance of her job duties. In an August 8, 2012 letter, the

Board denied Wesley's application, finding "there is no evidence" Wesley

suffered a "total and permanent disability" as a result of the September 14, 2010

1 During the period relevant to Wesley's application for accidental disability benefits, she was employed by the Division of Youth and Family Services (DYFS). Effective June 29, 2012, DYFS was renamed the New Jersey Division of Child Protection and Permanency. L. 2012, c. 16.

A-2854-17T1 2 work-related accident, and referred the matter to the Office of Administrative

Law as a contested case.

At the subsequent hearing before an Administrative Law Judge (ALJ), 2

the evidence showed that on September 28, 2009, Wesley was injured in an

automobile accident that occurred while she was not working. Following the

accident, a November 5, 2009 MRI showed Wesley suffered from central disc

herniation at C3-4 and C5-6, a right paracentral disc herniation at C6-7, two

bulging discs in the lumbar spine, and a small herniation at L5-S1.

Wesley treated with multiple doctors for neck and back pain, including

Chiropractor Adam J. Benn, who testified at the hearing before the ALJ and was

qualified as an expert in chiropractic medicine. Wesley returned to work in

April 2010. Chiropractor Benn discharged Wesley from his care in August

2010.

On September 14, 2010, Wesley was involved in a second automobile

accident during the performance of her job duties. An ambulance transported

Wesley to the hospital, where she reported a "mild headache and

lightheadedness" and "neck pain and low back pain." The hospital evaluated

2 The hearing took place over two days. Due to the retirement of the ALJ who conducted the first day of the hearing, a second judge completed the hearing and rendered a decision. A-2854-17T1 3 Wesley, prescribed pain medication, and discharged her with instructions to

follow up with her family doctor. Wesley never returned to work following the

2010 automobile accident.

On September 29, 2010, two weeks after Wesley's second accident,

Chiropractor Benn prepared a report stating Wesley suffered "a permanent loss

of bodily function" from injuries that "are directly and causally related to the

trauma sustained in the patient's [2009] accident." The report makes no mention

of the September 14, 2010 accident and does not attribute Wesley's alleged

permanent loss of bodily function, or any other alleged injuries, to that accident.

A month after the second accident, Wesley underwent an MRI of the

cervical and lumbar spine. In his report, Dr. John P. Nolan, D.O., explained the

MRI demonstrated "no change compared with [the] previous study dated

[November 5, 2009]," which followed Wesley's first accident. Specifically, the

MRI of the cervical spine showed "a central disc herniation at C3-C4 unchanged

from the previous study," "a central disc herniation at C5-C6 and disc herniation

on the right at C6-C7," also "unchanged." The MRI of the lumbar spine showed

an annular bulge at L1-2 and L3-4 and a small disc herniation on the left at L5-

S1—that is, "[n]o change compared with the previous examination" following

the 2009 automobile accident.

A-2854-17T1 4 Dr. Brahman Levy, M.D. did not testify at the hearing, but his medical

records reveal that he examined Wesley on October 20, 2010. His records

further revealed that a radiologist compared the results from the 2009 MRI tests

following Wesley's first accident with the 2010 MRI test results following the

second accident and found the latter results "demonstrate no significant changes,

no new herniations, etc." from the former. Dr. Levy described Wesley as a

"chronic pain patient who has had problems in the past" and found the "current

situation represents an exacerbation of this." Dr. Levy stated he was "going to

release the patient to return to work at modified duty capacity."

Dr. Nolan was not called as a witness at the hearing, but his medical

records were admitted in evidence. He ordered the discontinuance of Wesley's

physical therapy in January 2011 based on her reports of increased pain during

therapy and a lack of improvement in her condition. Dr. Nolan prescribed pain

medication and referred Wesley for a pain management evaluation in February

2011, and opined that Wesley could not return "to her job of operating a motor

vehicle during work tasks" due to "the degree of limited motion in the cervical

spine."

Wesley also treated with Dr. Jeffrey Polcer, a pain management specialist.

Dr. Polcer did not testify at the hearing, but his medical records showed he gave

A-2854-17T1 5 Wesley cervical steroid and lumbar epidural steroid injections during March

through May 2011.

In late December 2011, Wesley also returned to Chiropractor Benn, who

provided heat treatments and pain medication prescriptions. At trial,

Chiropractor Benn testified Wesley was permanently disabled from performing

her job duties as a result of the 2010 work-related accident.

Wesley also testified at the hearing, explaining she suffered from back and

neck pain, numbness in her left hand and had limited range of motion that

prevented her from performing functions, such as driving, prolonged sitting and

standing and computer work, necessary for the completion of her job duties.

Wesley's daughter testified concerning Wesley's ability to perform different

daily tasks following the two accidents.

Wesley also presented evidence that on August 22, 2011, she filed a claim

for Social Security Disability (SSD) insurance benefits based on an inability to

work. Wesley was awarded SSD benefits based on a finding she was disabled

under "sections 216(i) and 223(d) of the Social Security Act" 3 "from September

14, 2010, [the date of the second accident,] through the date of [the] decision,"

March 8, 2013.

3 42 U.S.C. §§ 416(i) and 423(d). A-2854-17T1 6 PERS called Dr. Arnold T. Berman, a board-certified orthopedic surgeon,

as its witness. Dr. Berman reviewed Wesley's medical records, examined her

and found she did not suffer from a total and permanent disability. Dr. Berman

testified Wesley had full range of active motion in her cervical spine, had "mild

pain" on range of motion but no tenderness or spasm indicating radiculopathy,

exhibited normal reflexes, and he determined there was no evidence of

radiculopathy. Dr. Berman found Wesley's muscles and reflexes were normal,

with no indication of atrophy and no objective findings of abnormality. He

explained that his examination was "essentially normal" for a woman of

Wesley's age. He examined Wesley's cervical and thoracolumbar spine and

found the results, sensation, and reflexes were normal, as was her strength

testing, heel to toe walking and straight leg raising.

Dr. Berman further noted the 2010 MRI report showed the identical

degenerative changes in Wesley's spine reflected in the November 5, 2009 MRI

report. Dr. Berman found Wesley suffered from no loss of bodily function and

only minor subjective findings of pain on range of motion testing, and disagreed

with Chiropractor Benn's conclusion to the contrary. Dr. Berman found Wesley

was "fully recovered with no residuals" and "can participate in all activities of

A-2854-17T1 7 daily living," including "her regular employment," pursuant to the results of

objective tests and "objective findings."4

In a detailed and comprehensive written decision, the ALJ summarized

the evidence presented by the parties and concluded that Dr. Berman's finding

Wesley is not totally and permanently disabled was more credible than

Chiropractor Benn's contrary opinion. The ALJ rejected Wesley's reliance on

the SSD determination, finding it was irrelevant to Wesley's entitlement to

accidental disability benefits, and concluded that Dr. Berman, who is a medical

doctor, provided "the most convincing evidence" concerning Wesley's claimed

disabilities based on Dr. Berman's "years of experience and substantial

qualifications." The judge further found that Wesley's "application for

accidental disability [retirement] benefits was made on the basis of an

orthopedic disability" and there was an "absence of objective findings"

supporting that claim. The ALJ found "the greater weight of the credible

evidence is that [Wesley] is not permanently and totally disabled as the result of

4 Dr. Berman also testified that even if Wesley has "a total and permanent disability, it is not directly caused by the [2010] accident." Because we conclude there was sufficient credible evidence supporting the Board's finding Wesley is not totally and permanently disabled, it is unnecessary to address the Board's reliance, in the alternative, on Dr. Berman's testimony that if Wesley has a tota l and permanent disability, it was not caused by the 2010 work-related accident. A-2854-17T1 8 orthopedic conditions" and recommended affirmance of PERS's denial of

Wesley's application for accidental disability retirement benefits.

The Board subsequently adopted the ALJ's findings and recommendation

and issued a final decision denying Wesley's application for accidental disability

retirement benefits. This appeal followed.

II.

"Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). A reviewing court

will presume the validity of the "administrative agency's exercise of its

statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171

(2014). Thus, "an appellate court ordinarily should not disturb an administrative

agency's determinations or findings unless there is a clear showing that (1) the

agency did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence." In

re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,

422 (2008). "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).

A-2854-17T1 9 "[T]he test is not whether an appellate court would come to the same

conclusion . . . but rather whether the factfinder could reasonably so conclude

upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting

Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). A

reviewing court "may not vacate an agency determination because of doubts as

to its wisdom or because the record may support more than one result." In re

N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App.

Div. 2003). "Where . . . the determination is founded upon sufficient credible

evidence seen from the totality of the record and on that record findings have

been made and conclusions reached involving agency expertise, the agency

decision should be sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83

N.J. 174, 189 (1980). Moreover, "[a]s a general rule, [we] should give 'due

regard to the opportunity of the one who heard the witnesses to judge . . . their

credibility . . . and . . . [give] due regard also to the agency's expertise where

such expertise is a pertinent factor.'" Clowes v. Terminix Int'l, Inc., 109 N.J.

575, 587 (1988) (fourth through sixth alterations in original) (quoting Close v.

Kordulak Bros., 44 N.J. 589, 599 (1965)).

PERS provides for both ordinary, N.J.S.A. 43:15A-42, and accidental,

N.J.S.A. 43:15A-43, disability benefits. "[A]n accidental disability retirement

A-2854-17T1 10 entitles a member to receive a higher level of benefits than those provided under

an ordinary disability retirement." Patterson v. Bd. of Trs., State Police Ret.

Sys., 194 N.J. 29, 43 (2008). A claimant seeking accidental disability retirement

benefits must prove: (1) "[he or she] is permanently and totally disabled"; (2)

"as a direct result of a traumatic event"; (3) "occurring during and as a result of

the performance of his [or her] regular or assigned duties." N.J.S.A. 43:15A-

43; see also Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J.

189, 212-13 (2007). The applicant bears the burden of proof on each prong of

the standard to establish an entitlement to accidental disability retirement

benefits. Richardson, 192 N.J. at 212-13.

Here, the Board determined Wesley is not entitled to disability retirement

benefits because she failed to establish she is permanently and totally disabled.

Wesley argues the Board erred because the evidence, including Chiropractor

Benn's testimony, established that she suffered from a permanent and total

disability. We find Wesley's argument is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

We write further only to observe that our standard of review requires

deference to an agency's factual findings when supported by substantial credible

evidence. In re Young, 202 N.J. 50, 70-71 (2010). We have carefully reviewed

A-2854-17T1 11 the record and are convinced the Board's finding that Wesley is not totally and

permanently disabled is supported by sufficient evidence the Board found

credible. The Board was not required to accept a determination that Wesley was

entitled to SSD benefits as dispositive of her entitlement to accidental disability

retirement benefits. Villanueva v. Zimmer, 431 N.J. Super. 301, 316-18 (App.

Div. 2013). In addition, faced with the conflicting opinions of Chiropractor

Benn and Dr. Berman concerning the nature and extent of Wesley's claimed

injuries, the ALJ and Board found Dr. Berman's testimony that Wesley did not

suffer from a total and permanent disability more credible and persuasive.

Lacking credible evidence Wesley has a permanent and total disability, the

Board correctly determined Wesley failed to sustain her burden of

demonstrating an entitlement to accidental disability retirement benefits. 5 See

Richardson, 192 N.J. at 212.

Affirmed.

5 As noted, because we are satisfied there is substantial credible evidence supporting the Board's determination Wesley is not permanently and totally disabled, it is unnecessary to address Wesley's argument that the Board erred by finding that even if she has a permanent and total disability, it was not caused by the 2010 work-related accident. A-2854-17T1 12