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John Salvaggio v. Police and Firemen's Retirement System

May 24, 2012

JOHN SALVAGGIO, PETITIONER-APPELLANT,
v.
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, Division of Pensions and Benefits, Docket No. PFRS 3-10-40852.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 18, 2012

Before Judges Sapp-Peterson and Ostrer.

Petitioner, John Salvaggio, appeals from the final administrative decision of the Board of Trustees of the Police and Firemen's Retirement System (the Board). The Board adopted the findings of fact and conclusions of law of the Administrative Law Judge (ALJ), who determined in an initial decision that petitioner's total and permanent disability was not directly caused by an incident occurring in the course of his employment as a lieutenant at a youth correctional facility. We affirm.

I.

Petitioner was hired as a corrections officer recruit by the New Jersey Department of Corrections (DOC) on March 10, 1990. As such, he was a member of the Police and Firemen's Retirement System (PFRS), to which he made mandatory contributions. On July 13, 2009, while working at the Albert C. Wagner Youth Correctional Facility in Bordentown, petitioner was injured when he, along with other officers, responded to a Code 33 alarm, a call for assistance typically involving direct staff assault. X-rays taken later that day revealed petitioner suffered very mild disc space narrowing at L5-S1. He was diagnosed as suffering from a sprain or strain in his lower back and placed on a six-week course of physical therapy. Petitioner was also prescribed pain medication. He returned to work in late August with no restrictions.

On September 22, 2009, as he bent over to tie his shoes while at home, plaintiff experienced back pain as severe as he experienced on July 13. An MRI performed shortly thereafter revealed: (1) "annular bulging at L1-L2"; (2) "neural foraminal bulging at L3-L4, L4-L5[,] with some narrowing of the neural foramina at this level[,] most prominent at L4-L5"; (3) "L5-S1 annular bulging with central annular tear"; and (4) "encroachment and narrowing of the neural foramina at this level, left greater than right."

Petitioner consulted an orthopedic surgeon, Dr. Lawrence Barr, who recommended pain management. Based upon this recommendation, he came under the care of Dr. Adam Sackstein, a pain management specialist. Under Dr. Sackstein's care, petitioner received an epidural injection on November 5, 2009, and a sacroiliac joint injection on November 19, 2009. He returned to Dr. Barr, who discussed treatment options with him that included a possible discogram and surgical intervention. Petitioner did not elect either option but underwent a functional capacity evaluation. The evaluation found that petitioner did not meet the essential criteria to perform his duties as a corrections officer.

On March 18, 2010, petitioner filed an application for accidental disability retirement. On May 26, 2010, he underwent an independent medical examination performed by Dr. Aldo D. Iulo, an orthopedist, who opined that the injuries he sustained on September 22, 2009 were not causally related to the July 13, 2009 incident.

On August 10, 2010, the Board issued its decision. Although finding that petitioner was totally and permanently disabled, it denied his application for accidental disability benefits. Instead, it awarded him ordinary disability retirement benefits. In reaching its decision, the Board stated: "The basis for the Board's denial is that although the event is caused by an external circumstance, the medical documentation provided indicates that your disability is the result of a pre-existing disease alone or a pre-existing disease that is aggravated or accelerated by the work effort."

In a letter dated August 25, 2010, Salvaggio petitioned the Board for a hearing. The Board approved the request and transmitted the matter to the Office of Administrative Law (OAL) as a contested case pursuant to N.J.S.A. 52:14B-1 to -12. The matter was assigned to an ALJ for a hearing. At the hearing, in addition to petitioner, Dr. David Weiss, a board-certified orthopedist, testified on his behalf. The Board presented Dr. Iulo. At the conclusion of the hearing, the ALJ subsequently issued a written decision in which he ultimately concluded "petitioner has not met his burden of proof that the disability was caused by the July 13, 2009 incident."

In determining whether plaintiff's disability was caused by the July 13, 2009 incident, the ALJ weighed the testimony from both experts. Because the two expert witnesses based their testimony on identical undisputed facts, the ALJ acknowledged that assessing the credibility of the two witnesses was critical to resolving the dispute. After reviewing the substance of each expert's testimony, the ALJ found the testimony of Dr. Weiss more credible. Notwithstanding this finding, the ALJ concluded petitioner failed to satisfy his burden to prove that his disability was caused by the July 13, 2009 event.

Petitioner filed exceptions to the initial decision, and on August 8, 2011, the Board met to review the ALJ's decision. After its review of the exhibits, the initial decision and exceptions, the Board adopted the findings of ...


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