Opinion
DOCKET NO. A-2605-14T1
04-18-2016
DAVID VARGA, Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Michael J. Confusione argued the cause for appellant (Hegge & Confusione, attorneys; Mr. Confusione, of counsel and on the brief). Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PFRS #3-10-46688. Michael J. Confusione argued the cause for appellant (Hegge & Confusione, attorneys; Mr. Confusione, of counsel and on the brief). Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph F. Dorfler, Deputy Attorney General, on the brief). PER CURIAM
Petitioner David Varga appeals from the January 13, 2015 final agency decision of the Board of Trustees of the Police and Firemen's Retirement System (the Board), adopting an Administrative Law Judge's (ALJ) decision denying petitioner's application for accidental disability retirement benefits. The ALJ resolved conflicting medical testimony against petitioner and concluded petitioner failed to prove his disability directly resulted from a June 24, 2010 work-related accident. Finding no basis in the record to disturb the Board and the ALJ's factual determinations and legal conclusions, we affirm.
This action's procedural history began in February 2013 when petitioner, a North Brunswick Township police officer, submitted an application for accidental disability retirement benefits. The Board rejected petitioner's application, acknowledging petitioner was totally and permanently disabled from the performance of his regular and assigned job duties, but finding the medical documentation "indicates that [petitioner's] reported disability is the result of a pre-existing disease alone or a pre-existing disease that is aggravated or accelerated by the work effort." The Board granted petitioner ordinary disability benefits.
Petitioner appealed the Board's initial determination and the matter was transmitted to the Office of Administrative Law (OAL) as a contested case. Hearings were conducted in January, May, and July 2014. The ALJ rendered his decision on November 24, 2014, denied petitioner's appeal, and dismissed it with prejudice.
On January 12, 2015, the Board voted to adopt the ALJ's decision denying petitioner's application for accidental disability retirement benefits. On January 13, 2015, the Board's secretary sent a letter to petitioner and his counsel, notifying them of the Board's final agency decision. Petitioner appealed.
The parties' primary dispute before the ALJ was whether petitioner was permanently and totally disabled as a direct result of a traumatic event that occurred on June 24, 2010, while he was working; or whether his disability was caused by an accident that occurred on November 25, 2011, on his home's stairway, while he was not working. Petitioner's medical expert opined petitioner was disabled as a direct result of the June 24, 2010 accident; the Board's expert disagreed, opining petitioner's disability was caused by the November 25, 2011 accident. The ALJ found the Board's medical expert's opinion more credible.
Three people testified at the hearing before the ALJ: petitioner and the two medical experts. Additionally, the parties entered into eight stipulations and submitted documentary evidence. Petitioner testified he was working as a North Brunswick Township patrolman on June 24, 2010, when he injured his right knee. He was searching a house when he tripped over a landscaping block and fell to the ground. Petitioner first received treatment at Robert Wood Johnson University Hospital in New Brunswick and thereafter was treated at Princeton Orthopaedic Associates, P.A., by Dr. Brian Vannozzi, the physician to whom he was referred by his employer's workers' compensation carrier. Following a "short stint" of physical therapy, petitioner underwent surgery on his right knee in August 2010.
Petitioner recuperated from the surgery, returned to work, and was able to perform his job without restrictions. He was not pain free, however. He had pain, tightness, and discomfort in the right knee. Despite returning to full duty, he did not believe he was ever the same physically. He did not run as much, and when he did run, his knee would hurt. He described running as "more hobble of a run than a full run." When he would go to the range and get into a squatting position, it was difficult for him to kneel down and shoot. According to petitioner, at no time after the June 24, 2010 accident was he entirely symptom free.
Petitioner testified his knee injury also affected the activities he enjoyed when he was not working. He stopped jogging and playing softball with his daughter. He did not bowl, play golf, or play tennis with his wife anymore. He had engaged in all these activities before June 24, 2010.
Petitioner had also injured his knee in an accident in September 2001 when he stepped off a tow truck and fell. Neither party contends the 2001 accident contributed to petitioner's disability. --------
Petitioner's symptoms following the August 2010 surgery did not improve or worsen, but stayed about the same. Yet, he returned to full duty and worked for approximately one year following the knee surgery.
On November 25, 2011, petitioner was walking down steps at his home when his right knee popped and he fell. He was doing nothing unusual at the time: he was carrying nothing and was not turning around. He went to the hospital and received emergency treatment.
Following his treatment in the hospital emergency room, petitioner followed up with a doctor at Mercer-Bucks Orthopaedics and thereafter returned to Princeton Orthopaedic Associates at the direction of his employer's workers' compensation carrier. Although he initially came under Dr. Vannozzi's care when he returned to Princeton Orthopaedic Associates, he later came under the care of Dr. Vannozzi's partner, Dr. Steven Gecha. Petitioner returned to work for a short time, but in March 2012 underwent surgery on his right knee. He never returned to full duty.
Following the March 2012 surgery, petitioner continued to experience tightness, "locking up," discomfort, and pain in his right knee. There were no days when he was completely symptom free. As of the date of his testimony, January 27, 2014, he continued to experience constant pain and stiffness in his right knee. The knee also lacked flexibility. Petitioner could not completely straighten his leg or bend it all the way back, and he could not squat without help.
Petitioner's medical expert, Dr. Gecha, was qualified as an orthopedic surgeon with a specialization in knees. Dr. Gecha opined that even if the November 2011 event had never occurred, petitioner would ultimately have been totally disabled from the June 2010 accident. Dr. Gecha explained that petitioner continued to have "episodes" and complaints from the time of the June 2010 accident until he returned to Dr. Vannozzi in January 2012. Doctor Gecha testified that because petitioner injured his knee in June 2010, thereafter had the appropriate surgery done, but continued to have problems with his knee, the problems culminated "with his knee bu[ckl]ing out from under him, which necessitated the second surgical intervention."
In preparing to testify, Dr. Gecha reviewed petitioner's relevant medical records, including the records related to his June 24, 2010 accident. Dr. Gecha recounted from the records that following the June 24, 2010 accident, petitioner had pain and swelling in his knee and difficulty with range of motion. He was treated at the emergency room where a knee mobilizer was provided and he was recommended to follow up with an orthopedic surgeon. Petitioner followed up with Dr. Vannozzi.
Dr. Vannozzi first saw petitioner on June 28, 2010. Based on the doctor's clinical examination, he ordered an MRI scan. Although the radiologist who read the MRI films noted in his report, "[t]he proximal portion of the anterior cruciate ligament is poorly visualized[,]" when Dr. Gecha looked at it in preparation for his testimony he was "very suspicious for an [anterior cruciate ligament (ACL)] tear[.]" He conferred with the radiologist, who then added an addendum to his report "saying that's certainly . . . something that it could have been."
Following the June 2010 accident, Dr. Vannozzi performed arthroscopic surgery on petitioner's knee on August 3, 2010. Dr. Gecha read Dr. Vannozzi's operative report and viewed the "interoperable" pictures. Dr. Gecha testified that two of the images looked to him "like a frayed ACL and when you see sort of that bulbous expansion, to me that's very significant." Dr. Gecha was suspicious of an ACL tear.
Dr. Gecha acknowledged that on August 3, 2010, his partner performed a partial meniscectomy on petitioner. Dr. Vannozzi noted in his report that petitioner's ACL showed some fraying, but appeared to be intact. The doctor further noted the ACL "did have slightly less tension than expected, but was present both in the footprint and on the lateral wall." Dr. Vannozzi's notes further documented that on December 9, 2010, petitioner had reached "maximum medical improvement." According to Dr. Vannozzi's report, petitioner was still having some "episodes" involving the knee that were "slightly concerning," but the doctor expected them to "resolve spontaneously." Dr. Vannozzi discharged petitioner with the expectation that petitioner would continue with a home exercise program and "continue with full duty."
Petitioner saw Dr. Gecha on March 1, 2012, for treatment of the knee injury he sustained at his home in November 2011. According to the history in his medical records, petitioner "had another episode where he hurt himself." He had returned to Dr. Vannozzi on January 26, 2012. The records reflected petitioner had "an acute episode . . . around the time . . . of Thanksgiving" while descending the stairs at his home. His knee buckled, he heard a pop, and he had significant swelling and discomfort. He underwent an MRI scan, which showed a "[n]ew tear of the posterior horn of the meniscus, a complete ACL tear with . . . mild articular cartilage loss involving the medial joint compartment and the lateral patel facet which was probably present previously[.]" On March 21, 2012, Dr. Gecha performed an ACL reconstruction and a lateral meniscal repair.
As previously noted, Dr. Gecha opined that even if the November 2011 event had not occurred, petitioner would ultimately have been disabled from the June 2010 accident.
The Board's expert, Dr. Jeffrey F. Lakin, was also qualified as an expert in orthopedic surgery. He examined petitioner, took a history from him, and reviewed his medical records, including the MRI reports, though he had not reviewed the radiologist's addendum to the MRI report. Dr. Lakin concluded petitioner was totally and permanently disabled from performing his normal job duties. According to Dr. Lakin, the cause of petitioner's disability was the November 11, 2011 injury petitioner sustained on the stairs at his home.
Dr. Lakin gave considerable testimony about the ACL. He explained that if more than fifty percent of the ACL is torn, it is considered a significant partial tear, but if less than fifty percent is torn, the tear is usually unaccompanied by any symptomatology. Dr. Lakin further explained that an ACL does not degenerate; rather, a tear is caused by a traumatic injury. Most of the time, the ligament is injured through a non-contact injury, though sometimes it can be caused by a contact injury. Either way, the injury is traumatic and it causes the ligament to bleed or tear. Dr. Lakin explained that with a complete tear, a person has instability of the knee; the knee will buckle and give out.
The gold standard for determining whether an ACL is torn or intact, according to Dr. Lakin, is an MRI. Insofar as invasive procedures are concerned, an arthroscopy permits a doctor to view the ACL. Petitioner underwent both.
Dr. Lakin found it significant that petitioner returned to work as a police officer and performed well for a year after suffering the work-related accident. Had petitioner's ACL been compromised, one would expect that it would tear within three months due to the high-stress nature of petitioner's job.
Focusing on petitioner's accident at home in November 2011, Dr. Lakin explained that the pop and immediate pain petitioner experienced were evidence of an ACL tear. People who hear a pop and have immediate pain in the knee have a forty-five percent chance of having a torn ACL. Immediate swelling further suggests a torn ACL, because when an ACL tears, it bleeds, the blood goes to the joint, and there is swelling in the knee.
Commenting on petitioner's 2010 knee injury, the doctor explained that fraying of the ACL and less tension in the ACL could have been normal findings. According to Dr. Lakin, the doctor who made those findings "could find the same appearance on the left knee." Dr. Lakin noted that when he examined petitioner, he examined petitioner's left knee as well as the right knee, and his left knee "was a little bit lax."
Dr. Lakin also found significant that petitioner's knee surgery following the 2010 accident was performed to repair a torn meniscus, that is, "the cushion inside of his knee." The surgery did not in any way affect petitioner's ACL. Of greater significance, the operative report concerning petitioner's surgery in 2010, which was based on the surgeon's ability to view the knee, showed petitioner's ACL was "intact from top to bottom." On the other hand, Dr. Gecha's operative report of the March 2012 surgery confirmed a complete tear of petitioner's ACL, as well as tears in his inner meniscus and outer meniscus.
Based on all the evidence considered by Dr. Lakin, he opined that the direct cause of petitioner's ACL tear was the November 28, 2011 accident that occurred when petitioner was descending the stairway in his home. Dr. Lakin testified that ACL injuries do not happen from degeneration; rather, they usually occur from a non-contact misstep. Dr. Lakin concluded: "With reasonable medical certainty, [petitioner]'s total disability is not a result of the work related accident of [June 24, 2010], as he had subsequent trauma to his knee."
The ALJ gave greater weight to Dr. Lakin's opinion than that of Dr. Gecha. The ALJ carefully and comprehensively reviewed the material each doctor relied upon and the reasons underlying each doctor's opinion. The ALJ concluded:
Both Dr. Lakin and Dr. Gecha are board-certified orthopedic surgeons, and both were credible, competent witnesses. Both made objective findings, and concluded that petitioner was not capable of resuming his normal job duties. In forming their opinions on the issue of direct result, both Dr. Gecha and Dr. Lakin reviewed the operative reports; Dr. Gecha also reviewed the MRI reports, but Dr. Lakin did not have those reports to review at the time of his examination of petitioner. He received and reviewed the MRI reports several months later, and his opinion remained unchanged. Based on the documents in the record and the credible testimony, I find that Dr. Lakin's reasoning and ultimate conclusion regarding the issue of "direct result" outweighed those offered by Dr. Gecha.
The Board adopted the ALJ's decision denying petitioner's application for accidental disability retirement benefits. Specifically, the Board adopted "the findings of fact and the conclusions of law of the ALJ's Initial Decision." Petitioner filed this appeal from the Board's final decision.
Our standard of review requires us to sustain an agency's decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Saccone v. Bd. of Trs. of Police and Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).
A member of the Police and Firemen's Retirement System (PFRS)
may be retired on an accidental disability retirement allowance; provided, that the medical board, after a medical examination of such member, shall certify that the member 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 and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him.
[N. J.S.A. 43:16A-7(1).]
Thus, to qualify for retirement on an accidental retirement allowance, a PFRS 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; an[d]
5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
[Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007).]
Petitioner contends the Board and ALJ "misapplie[d] the test for obtaining accidental disability benefits." He asserts the ALJ and Board's expert "focused, incorrectly, on when petitioner's ACL clinically or medically 'tore,' rather than on the correct issue of petitioner's disability." Petitioner claims the Board and the ALJ "substituted 'medical injury' for 'disability.'" The record belies petitioner's contention.
In his written opinion, the ALJ framed the issue as "whether petitioner became totally and permanently disabled as a result of the accident that petitioner alleged was the cause of his injuries, and, if so, whether all the elements enunciated in [Richardson, supra, 192 N.J. at 212-13] have been satisfied." Although both medical experts testified extensively about whether petitioner's ACL was torn when he underwent surgery following the June 2010 accident, Dr. Lakin testified, in accordance with his report, that petitioner's total disability was not a result of the work-related accident of June 24, 2010. The ALJ found Dr. Lakin's testimony credible and more persuasive than that of Dr. Gecha.
Petitioner's argument is based on a myopic view of the record rather than consideration of the record as a whole. We must give "due regard to the opportunity of the one who heard the witnesses to judge . . . their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Here, the ALJ's findings of fact and conclusions of law — which the Board adopted — were supported by substantial credible evidence in the record as a whole. We decline to disturb the ALJ's fact and credibility findings based on petitioner's selective references to the record.
We have considered petitioner's remaining arguments and find them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
Petitioner claims the Board and ALJ's decision contravened a stipulation the parties had entered into at the hearing before the ALJ. The stipulation provided: "The Board determined that, although the June 24, 2010 event was caused by an external circumstance, [p]etitioner's reported disability was the result of a pre-existing disease alone or a pre-existing disease that was aggravated or accelerated by the work effort." Petitioner also argues the Board should have been bound by the reasons stated in its preliminary denial of petitioner's application.
Petitioner's argument overlooks his burden of proving the criteria entitling him to accidental disability retirement benefits. Even assuming the Board's preliminary determination was inconsistent with the proofs that were presented to the ALJ, such inconsistency does not translate into petitioner carrying his burden of proving his entitlement to disability retirement benefits. Petitioner does not attempt to explain how the Board's preliminary decision denying accidental disability retirement benefits equates to his sustaining his burden of proof. Petitioner's argument, if accepted, would enable him to avoid not only the statutory requirements for PFRS accidental disability benefits, but also the Supreme Court's pronouncements on the issue.
The ALJ's findings of fact were supported by substantial credible evidence in the record. The Board did not act in an arbitrary, capricious, or unreasonable manner in adopting the ALJ's findings and conclusions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION