Opinion
DOCKET NO. A-4241-13T1
01-13-2016
DENNIS SCHUCK, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
Connell Foley LLP, attorneys for appellant (Timothy E. Corriston, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas and Robert E. Kelly, Deputy Attorneys General, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS #2-10-272635. Connell Foley LLP, attorneys for appellant (Timothy E. Corriston, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas and Robert E. Kelly, Deputy Attorneys General, on the briefs). PER CURIAM
Appellant Dennis Schuck appeals from the April 16, 2014 final decision of respondent Board of Trustees, Public Employees' Retirement System (Board), which adopted the March 6, 2013 decision of an Administrative Law Judge (ALJ) affirming the Board's denial of Schuck's application for accidental disability retirement benefits. The ALJ found, and the Board agreed, that Schuck's permanent and total disability was not the "direct result" of a traumatic event. We affirm.
We derive the following facts from the record. In 1995, Schuck became employed as a laborer for the Borough of Leonia Department of Public Works. His duties included "anything from garbage to recycling to black top to tak[ing] care of the parks, the baseballs field, anything, maintenance on the buildings."
While at work on December 8, 2008, Schuck, then forty years old, tripped over a stack of steel plow blades and fell into a parked vehicle, injuring his lower back. A December 11, 2008 MRI showed he had "disc degeneration and right paracentral herniation at L5-S1 with compression of the right S1 nerve root." He had no radiculopathy or neurologic deficits, did not require surgery or other invasive procedures, and was treated conservatively with medications and physical therapy. He received workers' compensation benefits during his period of temporary disability.
There was no dispute that the incident on December 8, 2008 constituted a "traumatic event" within the meaning of N.J.S.A. 43:15A-43; however, Schuck was not declared totally and permanently disabled as a result of that event and returned to work in February 2009 on full, unrestricted duty. On February 17, 2009, he told his treating doctor that "he felt that the problem was completely resolved . . . [and] [h]e had done reasonably well at work." He worked thereafter without incident or further medical treatment.
Nearly two years later, in September 2010, Schuck awoke one evening with severe lower back pain that radiated down his right leg. He never returned to work and was found eligible for workers' compensation benefits. A September 8, 2010, MRI showed he had disc degeneration and a right of center herniation at L5-S1, but the herniation now "extruded" and "cau[sed] compression upon the thecal sac and right lateral recess." Schuck had right radiculopathy, a partial foot drop, and required surgery.
On December 9, 2010, Schuck underwent a right L5-S1 laminectomy and micro-discectomy. The surgery was successful and Schuck's condition improved. However, sometime after the surgery, he sneezed while standing and felt severe pain in his lower back that was much worse than before the surgery. A January 10, 2011 MRI showed Schuck had disc degeneration at L5-S1, and now had a "[r]ecurrent right posterolateral disc extrusion with a 7 ml disc fragment compressing the origin of the right S1 nerve root . . . [and] lateral foraminal stenosis." His surgeon and expert, Bernard P. Newman, M.D., explained that the sneeze caused "another" herniation at L5-S1 and "actually shoved another piece of disc out of [place] and . . . up against the nerve again." The doctor testified that the surgery placed Schuck at increased risk of re-injury of the disc due to a sneeze, and re-injury occurs in one to two percent of surgery patients.
On January 28, 2011, Schuck underwent a second laminectomy and micro-discectomy. His symptoms worsened after the surgery. A May 18, 2011 lumbar CT scan showed he now had "severe degenerative disc disease with air in the disc space at L5-S1." Dr. Newman testified that "the disc space was largely empty, meaning that there was no support between the two vertebrae[.]" He explained that "[e]verbody who has a laminectomy will have an accelerated process of degeneration of the [disc] space," and Schuck's degeneration was more drastic than expected because he had two laminectomies.
On July 26, 2011, Schuck underwent an anterior lumbar inter-body fusion. The surgery was successful and some of Schuck's symptoms improved thereafter. However, he continued to have some lower back pain, but primarily had hamstring discomfort related to the disc surgery. Dr. Newman ultimately diagnosed Schuck with "herniated nucleus pulposus L5-S1," and opined that Schuck was totally disabled and unable to perform the duties of his or any other occupation and his permanent disability and the three surgeries were related to the 2008 traumatic event.
The Board's expert, Andrew M. Hutter, M.D., agreed that Schuck was totally and permanently disabled and unable to perform the duties of his or any other occupation. He disagreed that Schuck's permanent disability and the three surgeries were directly related to the 2008 traumatic event and opined there was no objective medical evidence supporting Dr. Newman's opinion to the contrary. He noted that Dr. Newman did not treat Schuck for the 2008 injury and emphasized that Schuck required no surgery as a result of that injury, the injury fully resolved, and Schuck returned to work full-duty and without restriction, received no medical treatment thereafter for the injury, and had no gradual progression of problems after he returned to work.
Dr. Hutter explained that Schuck's sudden, unexplained incident in September 2010 caused drastic changes in his clinical condition that were not present after or caused by the 2008 traumatic event, specifically, acute neurologic deficits, right radiculopathy and an extruded disc herniation, and these new conditions required three surgeries The doctor opined that the combined cause of Schuck's permanent and total disability was his long-standing disc degeneration, which existed before 2008 and was not caused by the 2008 traumatic event, and the three surgeries.
The ALJ found Dr. Hutter's testimony credible and determined there was no competent evidence that Schuck's permanent and total disability was the direct result of the 2008 traumatic event. The ALJ found that Schuck was not declared permanently and totally disabled after the 2008 traumatic event; he fully recovered from his injury and returned to work full duty with no restrictions; and he had no lower back problems until he suffered the unexplained incident nearly two years later that caused new conditions requiring surgery. The ALJ determined that Schuck's permanent and total disability was directly caused by his pre-existing disc degeneration aggravated by his normal job labors, and by subsequent "repetitive herniation trauma to the root nerve at L5[-]S1 directly related to the three surgeries and [the ]rare post-surgery re-herniation when he violently sneezed." The Board adopted the ALJ's decision, thereby reaffirming its decision to deny Schuck accidental disability retirement benefits.
On appeal, Schuck contends that the ALJ ignored relevant facts, failed to give reasonable and proportionate weight to all of the evidence, relied on an incorrect standard for direct cause, and failed to give greater weight to Dr. Newman's testimony. Schuck also contends that the ALJ should have admitted evidence of the continuation of his workers' compensation benefits.
We decline to address Schuck's additional contention that Dr. Hutter rendered an impermissible net opinion. Schuck did not raise this issue before the ALJ and it is not jurisdictional in nature nor does it substantially implicate the public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997). --------
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)). However, we are not bound by the Board's interpretation of a statute or its determination of a strictly legal issue. Ibid. Applying these standards, we discern no reason to disturb the Board's decision.
In 1966, the Legislature amended the accidental disability provisions of N.J.S.A. 43:15A-43 to require a member of the pension system to show that 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[.]" N.J.S.A. 43:15A-43. The amendment also provided that "[p]ermanent and total disability resulting from a cardiovascular, pulmonary or musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability." Ibid.
Our courts have concluded that the words "traumatic event" and "direct result" in the amended statute reflected the Legislature's intent "'to make the granting of an accidental disability pension more difficult.'" Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 174, 183 (1980) (quoting Cattani v. Bd. of Trs., Police & Fireman's Ret. Sys., 69 N.J. 587, 584 (1976)). "These amendments were also designed to distinguish the application of the pension retirement systems from the workers' compensation field and to repudiate reliance upon workers' compensation standards." Ibid.; see also Hillman v. Bd. of Trs., Public Employees' Ret. Sys. 109 N.J. Super. 449, 460 (App. Div. 1970) (stating that "[t]he 1966 amendment was intended to avoid this [workers' compensation] result by introducing a new term, 'traumatic event'"). Accordingly, "a preexisting condition or disease in combination with other employment-related factors might not constitute an 'accidental disability' for pension retirement purposes even though such a disability might satisfy workers' compensation requirements." Gerba, supra, 83 N.J. at 184.
In 2007, our Supreme Court revisited the test for determining whether a work-connected event that resulted in the total and permanent disability of a State employee constituted a "traumatic event" that qualified for accidental disability retirement benefits. The Court held as follows:
[T]o obtain accidental disability benefits, a member [of the pension system] 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
5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
[Richardson v. Bd. of Trs., Police & Fireman's Ret. Sys., 192 N.J. 189, 212-13 (2007).]The Richardson test "is an extraordinarily high threshold that culls out all minor injuries; all major injuries that have fully resolved; all partial or temporary disabilities; and all cases in which a member can continue to work in some other capacity." Id. at 195.
Summarizing, the Court stated that "[t]he polestar of the inquiry is whether, during the regular performance of his job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member." Id. at 214. If the cause of the member's disability is an underlying condition or disease, the member has not established that his disability is the "direct result of a traumatic event" even if usual or unusual work effort or accident exacerbated that medical condition. Id. at 202; see also Cattani, supra, 69 N.J. at 586 (holding that "[w]here . . . the disability is the end result of a preexisting . . . condition, work effort alone whether unusual or excessive, cannot be considered a traumatic event, even though it may have aggravated or accelerated the preexisting condition").
With regard to the "direct result" requirement, the Court has stated that "[t]he word 'direct' connotes relative freedom from remoteness, whether in terms of time, intervention of other contributive causes or the like, or a combination of such factors." Gerba, supra, 83 N.J. at 186 (quoting Titman v. Bd. of Trs., Teacher's Pension & Annuity Fund, 107 N.J. Super. 244, 247 (App. Div. 1969)). "[W]here to draw the line along the continuum between causative relations which will be characterized as 'direct' and those which will be characterized as less than 'direct' for purposes of N.J.S.A. 43:15A-43 is a policy determination which the legislature has delegated in the first instance to the Board." Quigley v. Bd. of Trs., Public Employees' Ret. Sys., 231 N.J. Super. 211, 221 (App. Div. 1989), certif. denied, Hilsman v. Bd. of Trs., Public Employees' Ret. Sys., 117 N.J. 153 (1989).
The member bears the burden of establishing a direct connection between a work-related injury and a current disability by a preponderance of the evidence supported by competent medical evidence. Russo v. Teachers' Pension & Annuity Fund, 62 N.J. 142, 147 (1973). A member need not prove that a traumatic event is the "sole or exclusive cause of the disability." Gerba, supra, 83 N.J. at 187. To satisfy the "direct result" requirement, the alleged traumatic event must be "the direct cause, i.e., the essential significant or substantial contributing cause of the disability[.]" Id. at 187.
In Gerba, the employee sustained injuries to his back and shoulder prior to his employment with the City of Bayonne in 1960. Id. at 176. In 1964, he sustained a work-related injury to his neck and back, but returned to work. Id. at 177. In 1973, he slipped while inspecting vehicles at a municipal garage and fell against a parked truck, injuring his lower back. Ibid. He took pain medication but missed no time from work and remained employed with the City until 1975. Ibid. He worked thereafter for a private employer until 1978. Id. at 178.
In 1976, the employee applied for accidental disability retirement benefits. Ibid. The Board denied the application based on medical evidence that the employee's ultimate permanent disability was not the direct result of a traumatic event, but rather, resulted from a pre-existing arthritic condition not caused by the 1964 and 1973 traumatic events. Id. at 189. The Court agreed that the two events constituted a "traumatic event" within the meaning of N.J.S.A. 43:15A-43, but found there was sufficient medical evidence in the record supporting the Board's determination that the ultimate disability was not the direct result of those events. Id. at 188-89. The Court held that
[w]here there exists an underlying condition such as osteoarthritis which itself has not been directly caused, but is only aggravated or ignited, by the trauma, then the resulting disability is, in statutory parlance, "ordinary" rather than "accidental" and gives rise to "ordinary" pension benefits. Hence, in terms of a traumatic event equating with a statutorily sufficient medical cause of an "accidental" disability, what is now required by N.J.S.A. 43:15A-43 is a traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.
[Id. at 186.]
In Quigley, supra, 231 N.J. Super. at 215, the employee, a maintenance worker, suffered a work-related injury to his lower back. His condition improved and he returned to work. Id. at 221. Approximately one year later, he was involved in a non-work-connected car accident, which exacerbated his preexisting condition. Id. at 222. The medical evidence revealed that his current disability was the result of degenerative changes and those changes were caused by a combination of the work-related injury and the automobile accident. Ibid. We affirmed the Board's denial of accidental disability retirement benefits, finding that the evidence amply supported the finding that the employee's current disability was not the "direct result" of the work-related accident. Id. at 223-24.
Here, the record amply supports the ALJ's findings and conclusion that Schuck's permanent and total disability was not the direct result of the 2008 traumatic event. The injury Schuck sustained in 2008 fully resolved and he worked as a manual laborer for nearly two years on full, unrestricted duty. He provided no medical evidence that what happened in September 2010, which led to the three surgeries and resulted in his permanent and total disability, was the direct result of the 2008 traumatic event. Rather, the evidence confirms that his ultimate permanent and total disability resulted from a pre-existing disc degeneration condition not caused by the 2008 traumatic event, which, at best, was aggravated or accelerated by his work, and the three surgeries. He, thus, was not entitled to accidental disability benefits. See Richardson, supra, 192 N.J. at 213.
We have considered Schuck's remaining arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). However, we add the following brief comments.
Dr. Newman did not treat Schuck for his 2008 injury, he and Dr. Hutter relied on the same medical evidence in rendering their opinions, and he offered no objective medical evidence directly connecting Schuck's permanent and total disability to the 2008 traumatic event. Accordingly, his testimony was entitled to no greater weight than Dr. Hutter's testimony.
Evidence of Schuck's entitlement to continued workers' compensation benefits was irrelevant to whether he was entitled to accidental disability benefits. While a work-related injury may satisfy workers' compensation requirements, it does not constitute an "accidental disability" for pension retirement purposes where, as here, it was not the direct result of a traumatic event. Gerba, supra, 83 N.J. at 184.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION