On appeal from the final decision of the Board of Trustees, Police and Firemen's Retirement System, PFRS #3-10-35600.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 12, 2009
Before Judges Rodríguez and LeWinn.
Raymond Joseph Foster, III, a member of the Police and Firemen's Retirement System (PFRS), appeals from the final decision of the Board of Trustees (Board), upholding the May 5, 2008 initial decision by Administrative Law Judge (ALJ) Jeff S. Masin, finding that Foster "has failed to meet his burden to prove that the total and permanent disability from which he suffers is the direct result of the injuries received in the traumatic event [Foster suffered on March 5, 2002]." We affirm.
These are the salient facts. Foster started working as a Bordentown Township police officer in February 1998. On March 5, 2002 at 9:51 p.m., Foster was injured in a motor vehicle accident, while working as a police officer. The police report indicates that this was a one-vehicle accident. Foster was responding to the ACME supermarket. As he entered the parking lot, he turned right, but missed the entrance and struck a light pole to the left of the entrance. At the time, Foster was thirty-seven years old.
Immediately after the accident, he experienced neck and back pain. Foster was taken to the emergency room of Helene Fuld Hospital. He was examined and X-rays were taken. Thereafter, he was seen by a neurologist and an MRI of his lower back was taken. Foster was diagnosed with a ruptured disc at L4-5. He was given pain medication and a neck brace. He had no prior history of back pain.
More than four years later, in September 2006, Foster stopped working. It is undisputed that Foster is now totally and permanently disabled. He is unable to perform his work duties. Foster applied to the Board for accidental disability retirement benefits. The Board denied the application on the grounds that Foster's disability was not a direct result of the automobile accident, thus he did not qualify for accidental disability benefits.
Foster challenged this decision. The matter was transferred to the Office of Administrative Law as a contested case. Foster testified that he served as a Sheriff's Officer for two years before becoming a Burlington County Bordentown patrolman. Foster is 6'3" tall and weighs 290 pounds. Prior to the automobile accident, he had no difficulty performing his job.
After the accident, Foster was treated for one-and-one-half to two months for the pain in the lower back, neck and head. His treatment included physical therapy, stretching and moist heat. He went back to work as a patrolman but was in "constant pain," in the lower back, with pain down both legs, which he had first experienced right after the accident. While he was able to work with discomfort, he did have difficulty sitting in a patrol car and standing for long periods of time, such as in a courtroom or on a post. He experienced numbness from the knee to his foot. He began to miss work sporadically. Traction was utilized to try to pull his disc away from the nerve upon which it was impinging.
In September 2006, he stopped working, as he could no longer tolerate the pain, which had become more constant and by about February 2006, had become "excruciating." Since September 2006, he has seen Dr. Goldstein, an orthopedic surgeon, and received physical therapy.
Foster could not recall how the accident had occurred. He only remembered that he was making a right turn and the next thing he recalls is "coming to." He knows that his vehicle struck a telephone pole.
Besides Foster, two witnesses, both experts, testified at the hearing. Ralph B. Cataldo, D.O., an osteopath who specializes in pain management, testified for Foster. He examined Foster on two occasions, eleven months after the accident and then seven months later. A CT scan of the cervical spine revealed widening of the C4-5 foramen, probably developmental. A March 20, 2002 MRI of the lumbar spine showed herniated nucleus pulpous L4-5 left with bulging annulus L5-S1 and disc degeneration at both levels. The physical examination revealed muscle spasm and tenderness of the posterior cervical musculature and both trapezii muscles. There was a reduced range of motion. Flexion was thirty degrees, normal is forty-five. Extension was twenty-five degrees, normal is forty-five. Rotation was bilaterally fifty degrees, sixty is normal. Side bending was bilaterally thirty-five degrees, forty-five normal. All motions were painful. Muscle spasm and tenderness of the paravertebral musculature and interspinous tenderness were appreciated at the L4-5 and L5-S1 interspaces. Leg raising in the supine position was limited, with straight leg raising through fifty-five degrees on the right and sixty-five on the left, while the normal range would be ninety degrees.
Foster complained of back pain without radiation. The Bragard's sign*fn1 was positive on the right. In the erect position, flexion was fifty degrees, ninety is normal, extension fifteen, thirty is normal, rotation fifteen, thirty is normal, and side bending, ...