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JOSEPH SERVIDEO v. BOARD OF TRUSTEES

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 30, 2010

JOSEPH SERVIDEO, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS No. 3-10-32708.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2010 - Decided Before Judges Wefing and Baxter.

Joseph Servideo appeals from a Final Decision of the Board of Trustees of the Police and Firemen's Retirement System ("PFRS") denying his application for accidental disability retirement benefits. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Servideo worked with the Bergen County Sheriff's Department as a corrections officer for more than twenty-one years, attaining the rank of sergeant. On May 27, 2004, he was working at the Bergen County Correctional Facility when he was summoned to assist other officers in restraining an inmate. While Servideo was attempting to do so, the inmate stomped on Servideo's left foot, fracturing the second and third metatarsal bones and cracking the upper instep. Servideo collapsed on the floor in pain. He was later taken to Hackensack University Medical Center. He spent approximately four weeks in a cast and then underwent a long program of physical therapy and rehabilitation, which included a bone stimulator to facilitate healing of the fracture sites. He initially returned to work in August 2004, but the undersheriff ordered him to leave when he saw the extent to which Servideo was limping as he walked. Servideo said his limp and his pain persisted, to the extent that he was able to walk no more than one block without developing disabling pain. Contending he was no longer able to work as a corrections officer, he submitted an application for accidental disability retirement benefits.

The standard for determining if an individual is eligible for accidental disability retirement benefits is contained in N.J.S.A. 43:16A-7(1), which states in pertinent part that a member must be 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 him.

Initially, PFRS disputed both that Servideo had suffered a "traumatic" injury and the extent of his disability. The former issue was resolved by the Supreme Court's opinion in Richardson v. Bd. of Trs., Police and Firemen's Ret. Sys., 192 N.J. 189 (2007), leaving only the question of whether Servideo was totally and permanently disabled from his job as a corrections officer.

That question was tried before an administrative law judge. Only three witnesses testified, Servideo and two physicians, Michael Deehan, M.D., and David Rubinfeld, M.D. The reports of various treating and examining physicians were also received into evidence. Servideo testified of the pain and swelling he still experienced in his left foot and as to how that would prevent him from fulfilling the full range of duties as a corrections officer. Dr. Deehan testified that he observed that Servideo's left calf and quadriceps muscles showed signs of atrophy from disuse as a result of the injury to his foot. His conclusion of atrophy rested, however, entirely upon his observations; he conducted no measurements. Dr. Deehan also testified that Servideo suffered from reflex sympathetic dystrophy, causing his sensations of pain. He said that in his opinion, Servideo was unable to perform the duties of a corrections officer and was totally and permanently disabled.

Dr. Rubinfeld disagreed. He testified that he saw no signs of muscle atrophy and, in fact, measured both of Servideo's legs and found them to be of equal dimension. He found Servideo to have full range of motion in his left foot and ankle and found no evidence of swelling or tenderness. He found no objective basis to support Servideo's complaints of pain and concluded that he was not totally and permanently disabled from performing his duties as a corrections officer.

Among the medical reports that were received into evidence were reports from David Blady, M.D., and Luis Vassallo, M.D., both of whom expressed the opinion that Servideo had sympathetic dystrophy in his left foot, and reports from James Charles, M.D., and Cheryl Wong, M.D., both of whom found no evidence of sympathetic dystrophy. While Drs. Blady, Charles and Wong are all neurologists, only the report of Dr. Charles refers to having performed a full neurologic evaluation. The report of Dr. Blady contains no indication that he performed any diagnostic testing at all.

After hearing these witnesses, reviewing the reports submitted into evidence and considering the arguments of counsel, the administrative law judge issued an initial decision concluding that Servideo had not demonstrated by a preponderance of the evidence that he was totally and permanently disabled. The Board of Trustees of PFRS adopted this decision, and this appeal followed.

We note first the standard governing our review of this matter. "An appellate court's review of an administrative agency's findings of fact is limited to a determination of whether those findings are supported by 'sufficient credible evidence in the record.'" In re Lalama, 343 N.J. Super. 560, 564-65 (App. Div. 2001) (quoting In re Taylor, 158 N.J. 644, 657 (1999)). However, an "appellate court's review . . . is 'not simply a pro forma exercise in which [the court] rubber stamp[s] findings that are not reasonably supported by the evidence.'" Id. at 565 (quoting Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996)).

"Appellate courts must engage in a 'careful and principled consideration of the agency record and findings.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). If, after conducting that careful and principled review, an appellate court is satisfied that the findings and conclusions of the administrative body find support in the record, an affirmance is called for. An appellate court may not overturn the decision of the agency simply because it might have reached an opposite conclusion based upon that same evidence. Taylor, supra, 158 N.J. at 657.

Based upon those governing principles, we are satisfied that we must affirm the decision under review. The matter was presented upon the basis of two conflicting medical opinions. The Board accepted the position of the administrative law judge that Dr. Rubinfeld's opinion was the more persuasive and credible. That conclusion finds support within the record and is therefore affirmed.

Affirmed.

20101130

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