Opinion
DOCKET NO. A-2726-14T2
04-18-2016
ROBERT SUY HO GO, Appellant, v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent.
James J. Uliano argued the cause for appellant (Chamlin, Rosen, Uliano & Witherington, attorneys; Mr. Uliano, of counsel; Andrew T. Walsh, on the briefs). Jeffrey S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph F. Dorfler, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 752172 James J. Uliano argued the cause for appellant (Chamlin, Rosen, Uliano & Witherington, attorneys; Mr. Uliano, of counsel; Andrew T. Walsh, on the briefs). Jeffrey S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph F. Dorfler, Deputy Attorney General, on the brief). PER CURIAM
Appellant Robert Suy Ho Go appeals from the October 16, 2014 final decision of the Board of Trustees of the Public Employees' Retirement System (the Board) denying his application for accidental disability retirement benefits, but granting him ordinary disability benefits. In reaching its determination, the Board adopted the Initial Decision of the Administrative Law Judge (ALJ), which found that appellant failed to establish that his permanent disability was the direct result of his work-related injuries. The ALJ also determined that appellant's application concerning a 2003 injury was untimely. Because the ALJ did not identify the standards she applied for determining whether appellant's disability was the direct result of the traumatic events he incurred, or whether he had filed a timely application for benefits, we are constrained to reverse the Board's decision and remand so that the Board may reconsider appellant's application under the appropriate standards.
I.
In February 1990, appellant started working as an electrician in a municipal public works department. As part of his duties in this position, appellant maintained, repaired, and rebuilt traffic signals. Appellant used a variety of hand tools in the performance of his duties, including electric and cordless drills, wire strippers and cutters, and hacksaws. In addition, appellant performed laborer's duties, such as operating a jackhammer in the street.
On August 13, 2003, appellant was "up in the bucket truck" fixing a traffic light. A garbage truck, which was attempting to go under the bucket where appellant was working, struck the bucket. The truck pushed the bucket and appellant jammed his right thumb and palm against the traffic light. Appellant testified that, as a result of this incident, he underwent surgery in 2004 and a piece of his right thumb was removed.
Appellant is right-handed.
About eight weeks after the operation, appellant returned to work with restrictions ordered by his physician. Appellant was not allowed to lift anything weighing more than fifty pounds and he was not supposed to use power tools. Because appellant could no longer perform all of his previously assigned duties, the municipality assigned a helper to accompany and assist appellant. Under appellant's direction, the helper operated the power tools, twisted wires together when needed, and lifted any equipment that exceeded fifty pounds.
Appellant testified that he suffered a second injury to his right hand on January 22, 2010. On that date, appellant was using the bucket to put up a banner over a street. As appellant attempted to use the bucket to bend the banner rod, the rod slipped and struck appellant's right thumb. As a result of this injury, appellant stated that he underwent another surgery, which further reduced his ability to use his right thumb.
Thereafter, appellant attempted to return to work, subject to additional restrictions ordered by his doctor. Appellant was now prohibited from using a jackhammer and other equipment. Appellant's supervisor told him that, if he could no longer operate a jackhammer, he could no longer work as the municipality's electrician. Therefore, appellant retired from his position and, on February 7, 2011, he filed an application for accidental disability benefits with the Board.
In his application, appellant attributed his disability to the August 13, 2003 injury, and did not mention the January 22, 2010 incident. On June 20, 2012, the Board denied appellant's application. The Board found that appellant was not totally and permanently disabled from the performance of his duties; there was "no evidence in the record of direct causation" of appellant's alleged disability; and appellant's application concerning the 2003 incident was filed beyond the five-year time deadline for such applications established by N.J.S.A. 43:15A-43. Appellant requested a hearing, and the Board transmitted the matter to the Office of Administrative Law as a contested case.
In addition to his own testimony concerning the 2003 and 2010 injuries, appellant presented the testimony of Dr. Cary Skolnick, an expert in orthopedic surgery. Dr. Skolnick examined appellant on two occasions, and reviewed appellant's job duties as an electrician. Dr. Skolnick testified that appellant was permanently and totally disabled as a result of the 2003 and 2010 injuries, which left him with "a nonfunctional, unstable, [carpometacarpal] joint of the [right] thumb."
Dr. Skolnick explained that the carpometacarpal joint "is at the base of the thumb where it comes out of the wrist." When this joint is injured, the affected individual has difficulty grasping objects.
Dr. Skolnick opined that when appellant jammed his right hand and thumb against the traffic light in 2003, the cartilage in his carpometacarpal joint was destroyed. According to Dr. Skolnick, appellant "failed conservative care" consisting of injections and physical therapy and, as result, needed an operation in December 2004 to repair the joint. In this operation, the physician removed half of appellant's trapezium bone and reconstructed a ligament in the thumb using a tendon from another part of appellant's body.
Dr. Skolnick testified that appellant's second injury in 2010 caused him to lose "stability and strength in that joint[,]" and required him to undergo another operation in June 2010. Dr. Skolnick described this operation as "a salvage procedure where they transferred a muscle tendon" into the carpometacarpal joint "to give him a spacer so that the bones that were left wouldn't hit together and keep hurting him."
After this operation, appellant lost "all the strength in that joint[,]" although some of his pain was relieved. Dr. Skolnick opined that appellant could no longer use power tools, crimpers, wrenches, or other equipment "he needs to do his electric[ian's] job." Dr. Skolnick concluded that appellant's disability was caused by the injuries he sustained to his right thumb in the 2003 and 2010 incidents. Dr. Skolnick also noted that appellant suffered from "[r]ight first carpometacarpal joint arthritis" in his right hand.
The Board's orthopedic expert, Dr. Arnold Berman, examined appellant on one occasion and reached a different conclusion. Dr. Berman testified that appellant only sustained a contusion or bruise on his right thumb in the 2003 incident. Dr. Berman opined that the pain appellant was suffering in his thumb was caused by arthritis in the joint, rather than from the injury.
According to Dr. Berman, his conclusion was confirmed by a December 2004 surgical pathology report that stated that "degenerative changes consistent with osteoarthritis" were found in the portion of the trapezium bone and cartilage removed during appellant's first operation. Dr. Berman concluded that appellant "had severe arthritis at the base of his thumb"; this condition was "long-standing"; and petitioner had suffered from this condition for at least ten years prior to the 2004 operation. Dr. Berman further opined that "[t]here's no evidence it was aggravated by [the 2003] injury."
Dr. Berman stated that he did not "think there was any second event" in 2010. Instead, the pain appellant experienced that year was caused by the arthritic condition of his thumb. To address appellant's complaints, Dr. Berman explained that the surgeon performed a second operation to readjust the repairs made in 2004. Dr. Berman testified that the second operation was successful and that, despite the arthritis in the joint, appellant had "a hundred percent functional range of motion [in his thumb] and there [was] no deficit." Thus, Dr. Berman opined that appellant was not disabled and could perform all of his duties as an electrician without limitation.
On September 10, 2014, the ALJ issued her Initial Decision. The ALJ found that petitioner successfully demonstrated through "the credible testimony of Dr. Skolnick and his own testimony that he [was] physically unable to perform the duties of his position." Thus, although she did not specifically make this finding, the ALJ implicitly rejected Dr. Berman's contrary opinion on the issue of permanent disability. The ALJ also concluded "that both the August 2003 and January 2010 accidents were traumatic in nature[.]"
However, the ALJ then concluded that appellant failed to prove that his disability was the "direct result of those accidents rather than a result of ordinary work effort and a progressive disease such as arthritis." The ALJ noted that both experts testified that appellant had arthritis. The ALJ did not analyze the relative strength and weaknesses of the experts' dramatically conflicting opinions on causation, and made no further findings on this issue. Instead, the ALJ simply stated that appellant "failed in his burden to show that the arthritis present in his hand was not a significant cause of his problems with grip and strength in his hand." Accordingly, the ALJ ruled that, although appellant's total and permanent disability entitled him to ordinary disability retirement benefits, appellant did not qualify for accidental disability benefits.
The ALJ also found that appellant did not meet "his burden of showing either delayed manifestation or circumstances necessary to obviate the five-year filing period for accidental disability benefits." In a one-sentence explanation of this ruling, the ALJ stated, "As with the unraveling of causation between the arthritis and the accidents, it is impossible from the record to determine whether [appellant] had an appropriate reason for not filing on the August 2003 accident until the five-year period had passed."
Although this statute was not referenced by the ALJ, N.J.S.A. 43:15A-43 states that an applicant for accidental disability benefits must file the application within five years of the traumatic event that caused the applicant's disability. However, this deadline does not apply if the applicant can satisfy the Board that he or she had good cause for the delay, such as a delayed manifestation of the injury. Ibid.
On October 16, 2014, the Board adopted the ALJ's recommendations, and granted appellant's application for ordinary disability benefits, while denying his application for accidental disability benefits. This appeal followed.
II.
On appeal, appellant argues that the ALJ, and therefore the Board, failed to apply the correct legal standards to her claims. We agree.
Our scope of review of an administrative agency's final determination is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "'[A] strong presumption of reasonableness attaches'" to the agency's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994 )), certif. denied, 170 N.J. 85 (2001). The burden is upon the appellant to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable[,] or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994). To that end, we will "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).
It is not our place to second-guess or substitute our judgment for that of the agency and, therefore, we do not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We are not, however, in any way "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Because the Board adopted the ALJ's application of the law, we focus on the legal standard applied by the ALJ.
In pertinent part, N.J.S.A. 43:15A-43 provides that a member of the Public Employees' Retirement System "shall . . . be retired by the [Board], 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 [or her] regular or assigned duties, on an accidental disability allowance." In this case the ALJ found that appellant was permanently and totally disabled and that he had been involved in two traumatic events. The Board adopted this finding. Thus, the primary issue on appeal is whether appellant's total and permanent disability was "a direct result" of the two traumatic events.
The ALJ concluded that appellant failed to prove that the two accidents, rather than his arthritis, caused his disability. However, the ALJ did not identify the precise legal standard she applied in making this determination. Without any citation to N.J.S.A. 43:15A-43 or any court decision interpreting it, the ALJ merely stated that appellant "failed in his burden to show that the arthritis present in his hand was not a significant cause of his problems with grip and strength in his hand." Thus, we cannot be sure whether the ALJ applied the correct standard established in the Supreme Court's and our decisions dealing with causation in the accidental disability pension field.
The ALJ only cited one court decision in her opinion, In re Polk License Revocation, 90 N.J. 550 (1982). However, this decision, which dealt with whether the State Board of Medical Examiners had the power to revoke a physician's license to practice medicine, has no direct relevance to the issues presented in this matter.
Because of this deficiency, we must remand this matter to the Board for reconsideration. To assist the Board on remand, we will discuss the applicable causation standard in some detail. In Cattani v. Board of Trustees, 69 N.J. 578, 585 (1976), the Court held that accidental retirement benefits can be awarded where a preexisting disease is combined with a traumatic event. The Court found that "a basis for an accidental disability pension would exist if it were shown that the disability directly resulted from the combined effect of a traumatic event and a preexisting disease." Id. at 586. Relevant to that determination, an important distinction exists between (1) a preexisting condition combined with ordinary work or even extra strenuous work effort that creates disability, and (2) a preexisting condition combined with a traumatic event to create disability. See ibid. The former is not an accidental disability as described by N.J.S.A. 43:15A-43, while the latter can be if the traumatic event is the substantial contributing factor. See id. at 585-86.
This Board may remand the matter to the ALJ for reconsideration, or conduct the required analysis itself.
Four years later, in Gerba v. Board of Trustees, the Supreme Court specified that
accidental disability in some circumstances may arise even though an employee is afflicted with an underlying physical disease bearing causally upon the resulting disability. In such cases, the traumatic event need not be the sole or exclusive cause of the disability. As long as the traumatic event is the direct cause, i.e., the essential significant or substantial contributing cause of the disability, it is sufficient to satisfy the statutory standard of an accidental disability even though it acts in combination with an underlying physical disease.
[83 N.J. 174, 187 (1980).]
On the same day Gerba was decided, the Court also issued its opinion in Korelnia v. Board of Trustees of the Public Employees' Retirement System, 83 N.J. 163 (1980). There, the Court explained that "[t]he statutory standards for an accidental disability are two-fold. They require that the disability be the 'direct result' of a traumatic event. They also require that the disability not be the result of a 'cardiovascular, pulmonary or musculoskeletal condition which was not a direct result of a traumatic event.'" Id. at 169 (quoting N.J.S.A. 43:15A-43). The Court further stated that, "[w]hile the statutory definition stresses that the resulting disability must be 'direct' in terms of its traumatic origins, it does not require that the antecedent trauma be the exclusive or sole cause of the disability." Id. at 169-70 (citing Gerba, supra, 83 N.J. at 186-87).
Subsequently, we applied the above Supreme Court holdings in Petrucelli v. Board of Trustees of the Public Employees' Retirement System, 211 N.J. Super. 280 (App. Div. 1986). Petrucelli was a case involving a fall that caused a non-symptomatic preexisting spinal condition to morph into total disability. Id. at 281-83. There, we stated that "the claimant in Gerba lost because the undisputed record established that he had symptomatic developmental arthritis for a decade and that the employment event only contributed to the progression of the disease." Id. at 288 (citing Gerba, supra, 83 N.J. at 188). We noted that "[t]he companion case Korelnia, 83 N.J. at 170, also recognized that in the proper circumstance 'an accidental disability may under certain circumstances involve a combination of both traumatic and pathological origins.'" Id. at 288-89.
We went on to state:
In the case before us we conclude that the "direct result" test was legally satisfied. As noted, there was no issue of
credibility. Claimant was a very active 49-year-old man performing a strenuous job. He had no prior back problems of any kind. After his severe fall down a nine-step stairway, all concede he is permanently and totally disabled because of his now-symptomatic low-back problem.
. . . We are satisfied that if claimant here cannot recover after a severe trauma, superimposed on a nonsymptomatic structural anomaly, which triggered a symptom complex resulting in total disability, no claimant could ever recover accidental benefits in any circumstance where there exists a quiescent underlying condition which had caused no trouble and might never cause any trouble. We conclude that such a narrow and crabbed "directness" test was never intended by the Legislature nor condoned by the Supreme Court in Gerba.
[Id. at 289.]
We note that the Court's decision in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), which is relied upon by both sides in this appeal, directly reaffirms Cattani, Gerba and Korelnia. That case, however, focuses on what constitutes a traumatic event as opposed to work effort, rather than on the causation issue presented here.
Synthesizing these precedents, the Board must determine whether the 2003 and 2010 traumatic events were the essential significant or substantial causes of appellant's permanent disability. In making this determination, the Board must also make detailed findings concerning the conflicting expert testimony presented by the parties. As noted above, appellant's expert opined that the traumatic events, rather than any pre- existing arthritic condition, were the direct causes of his disability, while the Board's expert presented a completely contrary opinion.
The ALJ made no attempt to resolve the conflicting testimony and made no findings concerning the merits of either expert's opinion on the issue of causation. This failing further supports the remand we order here. With regard to expert witnesses, we rely upon a trial judge's or ALJ's "acceptance of the credibility of the expert's testimony and [the judge's] fact-findings based thereon, noting that the [judge] is better positioned to evaluate the witness'[s] credibility, qualifications, and the weight to be accorded [to his or] her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). Thus, the Board's careful assessment of the conflicting expert testimony is needed to properly resolve the causation issue presented in this case.
Finally, the ALJ also failed to identify the standard she applied for determining that appellant could not raise the 2003 traumatic event in his application because he did not file it within five years of that injury. The import of this determination in the ALJ's ultimate decision to deny accidental disability benefits is also not clear. While the ALJ's short, conclusory explanation of her ruling implied that the 2003 incident should not have been considered, the incident was nevertheless discussed in detail by the expert witnesses and in other places in the ALJ's Initial Decision. Accordingly, the Board must also reconsider this issue on remand. In order to assist the Board in this task, we again describe the appropriate standard.
In pertinent part, N.J.S.A. 43:15A-43 provides that an application for an accidental disability pension "must be filed within five years of the original traumatic event," unless the applicant can satisfactorily demonstrate to the Board "that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to circumstances beyond the control of the member." When, as here, a question is raised as to the timeliness of an application, the ALJ and the Board must engage in a "fact-sensitive analysis" and determine "when the delayed manifestation actually occurred, why the filing was delayed thereafter," and whether the Board suffered any prejudice by the delayed filing. In re Crimaldi, 396 N.J. Super. 599, 607 (App. Div. 2007).
Neither the ALJ nor the Board conducted this required analysis. The record indicates that, following the 2003 traumatic event and his 2004 surgery, appellant was able to return to work and perform his duties with the assistance of a helper. Thus, appellant was not totally and permanently disabled at that time. Accordingly, appellant argued that he could not properly file an application for accidental disability benefits until after he was injured in the 2010 traumatic event and the combination of the 2003 and 2010 incidents rendered him totally and permanently disabled. The ALJ did not address appellant's contention in her Initial Decision, which was adopted by the Board without any further explanation. As required by Crimaldi, the Board must reconsider this ruling by applying the correct standard and making detailed findings of fact in support of its decision.
In sum, we reverse the Board's decision denying appellant's application for accidental disability retirement benefits and remand this matter to the Board for reconsideration of appellant's application for these benefits under the appropriate standards.
Appellant shall continue to receive the ordinary disability benefits already granted by the Board. The remand is limited to the question of whether appellant is entitled to the enhanced accidental disability benefits provided by N.J.S.A. 43:15A-43. --------
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION