On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, Agency Docket No. PERS #2-10-225355.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and C.L. Miniman.
Petitioner James Henderson (Henderson) appeals the final agency decision of respondent Board of Trustees (the Board) of the Public Employees' Retirement System (PERS) denying his application for accidental disability retirement (ADR) benefits under N.J.S.A. 43:15A-43. We reverse and remand for award of ADR benefits to Henderson.
Henderson applied for ADR benefits on June 25, 2007. The Board determined at its November 7, 2007, meeting that Henderson was totally and permanently disabled from the performance of his regular and assigned job duties as a result of injuries that occurred on April 7, 2003, and June 13, 2006. It found that the April 7, 2003, injuries were sustained as a result of a "traumatic event" under N.J.S.A. 43:15A-43 and relevant case law. However, it found that the June 13, 2006, injuries did not result from a "traumatic event" because the event on June 13, 2006, "was not undesigned and unexpected and the event was not caused by an external circumstance." Because both events had to be considered "traumatic events" in order to qualify for ADR benefits, the Board denied Henderson's application and awarded him ordinary disability retirement benefits effective July 1, 2007.
On December 17, 2007, Henderson timely appealed the denial of ADR benefits. The Board referred the matter to the Office of Administrative Law, and it was assigned to an Administrative Law Judge (ALJ) for a hearing, which took place on November 14 and 17, 2008. The ALJ rendered her initial decision on May 5, 2009.
The parties had stipulated to the following facts: Henderson was born on July 5, 1961. He began working for the Princeton Regional Schools in Mercer County as a maintenance technician on July 1, 1990, and was employed as supervisor of buildings and grounds for the Mercer County Special Services School District when he filed his application for ADR benefits. He was injured on April 7, 2003, when he was pinned between a sport utility vehicle (SUV) and a snow blower, and injured again on June 13, 2006, when he removed an access panel from the compressor compartment of an air-conditioning unit.
The ALJ found the following facts, most of which were not in dispute, from the evidence presented at the hearing by Henderson; his examining physician, Dr. David Weiss; and the Board's examining physician, Dr. Zohar Stark. Henderson had been enrolled in PERS since 1990. As supervisor of buildings and grounds, Henderson "was required to prepare purchase orders and requisitions, supervise custodial staff and maintain the physical plant."
On April 7, 2003, Henderson was using a snow blower in the school parking lot, a regular and assigned duty. While doing so, he was struck by an SUV and pinned between it and the snow blower. The accident pushed his spine forward, and he suffered a serious injury to the lumbar region of his spine. He was seen at Robert Wood Johnson University Hospital and then treated by Dr. Marc Levine at Trenton Orthopedic Group. After reviewing X-rays, an MRI, and a CT-scan, Dr. Levine diagnosed him with grade one spondylolisthesis*fn1 at L5-S1 and a bulging disc at L5-S1. There was also age-related disc desiccation at L3-L4 and L4-L5. Dr. Levine supervised Henderson's physical therapy and recommended surgery when he was not improving. "Henderson declined surgery, despite Dr. Levine's warning that without surgery his condition would likely deteriorate."
Henderson was out of work on disability for some time. When he returned to work, he was placed on light duty, but experienced a tremendous amount of pain in his back and down his left leg, pain in his neck, and headaches. He returned to full duty in July 2003 and performed all of his assigned duties except for those requiring heavy lifting, such as off-loading trucks. "He returned to work because he is the sole provider for his family of four, which includes two special needs children." When his pain flared, "he would walk it off."
On June 13, 2006, Henderson, who was still in daily continuous pain, was repairing an air-conditioning unit in a class- room that was having temperature-control problems. The unit had a two-foot-square panel weighing fifteen to twenty pounds, which he unscrewed and removed. "When he turned slightly to set the unit down, he immediately felt a click in his low back and experienced a sharp pain." He kept working until the end of his shift despite the pain.
The pain worsened when he returned home, and he awoke the next morning with increased pain and stiffness. The pain was the same as that he had experienced since 2003, only worse. Nonetheless, he went to work for three more days with ever-increasing pain. He then saw a doctor, who examined him and prescribed pain medication, muscle relaxants, and anti-inflammatory medication.
Henderson was eventually referred to Dr. Levine, who ordered physical therapy. Dr. Levine again recommended surgery, and Henderson sought a second opinion from Dr. Tydings, who concurred. On November 1, 2006, Dr. Tydings performed complex spinal-fusion surgery on Henderson, who then received postoperative physical therapy and rehabilitation. Henderson never returned to work.
The ALJ found that Dr. Weiss described the 2006 injury as a "'tortional and axial' injury in which one picks up and twists." An MRI conducted on June 29, 2006, "revealed grade 1 listhesis of L5-S1 secondary to L5 spondolysis, a disc bulge at L3-L4 and disc herniation at L4-L5." A CT-scan on October 4, 2006, "revealed a bilateral L5 spondolysis with a grade 1 spondylolis-thesis and disc pathology at L3-L4, L4-L5 and L5-S1." Dr. Weiss opined that
Henderson was 100 percent disabled in terms of being able to perform his previous employment. The competent producing factor was the initial event of April 7, 2003, at which time he sustained traumatic spondylolisthesis, and the subsequent aggravation and acceleration of the lumbar spine pathology in the June 13, 2006, event, which led to the complex surgery and medication of class II opioids.
The ALJ described Dr. Stark's testimony respecting his examination of Henderson, who told the doctor that his hands and lower back were numb and that he had radiating pain, although no local back pain. Henderson had a hard time getting up from the examination table and walked with a limp. Dr. Stark opined:
Henderson was disabled because of degenerative disease of the lower back and the injury sustained on June 13, 2006. The places that he had injured in the first accident were the same places in which he had injury after the second. The second accident put him over the edge. He agreed with Dr. Weiss' diagnosis and conclusion and shares his opinion. The prior records from Henderson's treating physicians referenced degenerative changes. The accident did not cause spondylolisthesis. He testified that, in summary, the disability is caused by degeneration coupled with the injuries sustained in June 2006 and April 2003.
On cross-examination, Dr. Stark acknowledged that he did not mention degenerative disc disease in his report. Rather, he said that the disability was directly related to the accidents. Nonetheless, Dr. Stark testified that his diagnosis was degenerative disc disease from the first accident and that Henderson's disability was a result of the June 13, 2006, accident "that put him over the edge."
The ALJ found that Henderson's 2003 injury "was aggravated and accelerated by the June 2006 accident in which Henderson, in attempting to perform an ordinary task, incurred an extraordinary consequence, leaving him permanently disabled." She found that Henderson "is permanently and totally disabled from events occurring during and as a result of his regular duties without any negligence on his part and he is physically incapacitated from performing his usual or any other dut[ies]."
The ALJ concluded that Henderson, thus, satisfied prongs one, three, four, and five for determining whether an event was traumatic, as identified in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), leaving only the issue of prong two, which requires a disabled worker to prove permanent and total disability as a direct result of an identifiable, undesigned, and unexpected traumatic event caused by a circumstance external to the member, that is, "not the result of pre-existing disease that is aggravated or accelerated by the work."
As to that prong, the Board urged that Henderson's 2006 injury was the result of pre-existing disease aggravated by work. The ALJ then discussed governing case law and found that Henderson "had no pre-existing disease; he suffered an injury as a result of a 'traumatic event' in April 2003, but his permanent disability did not manifest immediately." It only became manifest when the 2003 injury was aggravated and accelerated by the 2006 incident.
The ALJ found no dispute existed with respect to whether the 2006 incident was identifiable as to time and place. As to whether the event was undesigned and unexpected and caused by a circumstance external to the member, she found:
In keeping with the Russo*fn2 analysis, looking at the acts preceding Henderson's 2006 injury, nothing unexpected or unforeseen occurred. However, Henderson did not expect that the act of lifting and setting down the access panel, which was not of excessive weight, while turning, would create the injury that it did. Henderson's injury was an unanticipated, extraordinary and unusual consequence of an intended ...