On appeal the Board of Trustees, Public Employees' Retirement System, PERS #2-10-216693.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Carchman.
Appellant Severo Cordero appeals from a final decision of respondent Board of Trustees (the Board) of the Public Employees' Retirement System (PERS) denying appellant's application for accidental disability retirement benefits. In denying these benefits, the Board rejected a contrary recommendation of the Administrative Law Judge (ALJ) and concluded that while appellant was entitled to disability benefits, he was not entitled to accidental disability benefits. We affirm.
While the conclusions to be drawn from the facts were significantly disputed, the facts derived from the record were not. Appellant was a maintenance worker employed by the Jersey City Housing Authority. In September 2006, the Board awarded appellant disability retirement benefits based on a finding of total and permanent orthopedic disability. At the same time, the Board rejected appellant's claim for accidental disability retirement benefits, concluding that the accident -- a knee injury appellant suffered in September 2003 when he lifted a cast iron sink -- did not qualify as a "traumatic event." See N.J.S.A. 43:15A-43. Appellant appealed, and the matter was transferred to the Office of Administrative Law (OAL).
While the appeal was pending, the Supreme Court decided Richardson v. Police and Firemen's Retirement System, 192 N.J. 189 (2007), where the Court abandoned the earlier traumatic event test enunciated in Kane v. Board of Trustees, Police and Firemen's Retirement System, 100 N.J. 651 (1985), and adopted a three-part test requiring a showing that the work-connected injury was identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member. Richardson, supra, 192 N.J. at 192.
Following the Court's decision in Richardson, appellant for the first time claimed that he was psychiatrically disabled from a mugging incident that occurred in March 1999. Although the Board accepted appellant's claim that he was totally and permanently disabled, psychiatrically, it rejected the claim that the March 1999 incident directly resulted in the disability. Appellant appealed to the OAL, and the matter was heard by an ALJ.
At the hearing, appellant established that although he had no memory of the event, he was assaulted in the basement of an apartment building where he was employed. After being found in the basement by co-workers, appellant was taken to the Jersey City Medical Center, but appellant left prior to treatment. He returned to work thereafter.
After returning to work, appellant was sent for medical treatment and was later admitted to the hospital. Various tests proved negative, and ultimately, the diagnosis was "resolving cerebral concussion and possible post[-]traumatic stress syndrome, rule out malingering."
The proofs further revealed that from March 1997 to August 2005, appellant had been hospitalized for various illnesses and depression. Prior to the March 1999 incident, appellant had been injured in a fall that resulted in two orthopedic surgeries. Subsequent to the March 1999 incident, appellant had been injured in other non-work-related incidents, including an assault in October 1999. As a result of the September 2003 incident involving the sink, appellant underwent at least eight or nine additional surgeries.
Appellant sought workers compensation and was examined by two physicians in relation to that claim. In 2000, one physician, Dr. Jeffrey Frankel, found no permanent neurological disability or depression, while the other physician, Dr. Arthur C. Rothman, in 2001, found post-concussion syndrome and a twenty-five percent disability "due to the incidents of March 12, 1999 and October 23, 1999." Critically, Dr. Rothman found that the disability resulted from both incidents and made no apportionment between them.
The Board presented an expert, Charles Semel, M.D., a psychiatrist and neurologist, who reviewed all of appellant's records as well as examined appellant, and concluded that appellant was permanently disabled from performing his regular duties. He further concluded that both the incidents of March 1999 and October 1999 "played a part" in appellant's disability, but "none by itself produced the psychiatric state." He further opined that appellant suffered from a "[d]ementing process," most likely Alzheimer's disease, and that the "pattern" of his disease and the dementing process were not consistent with the traumatic event. He also noted the significant delay between the incident and the disability.
Dr. Semel relied in part on the normal findings of an MRI taken shortly after the March 1999 incident as well as a later MRI that yielded negative results. Dr. Semel noted that there were no objective indicia of a serious head injury after the accident, such as a subdural hematoma, to support appellant's claim. He also concluded that the depressive disorder did not relate to the March 1999 incident and was instead related to appellant's various serious, chronic and debilitating conditions. He likewise rejected any claim of post-traumatic stress disorder and concluded that the March 1999 incident was not the direct cause of appellant's psychiatric disability.
Charles Hasson, Ph.D., a psychologist, was offered as an expert by appellant. He met with appellant in August 2009, ten years after the March 1999 incident. Hasson relied heavily on Dr. Rothman's report prepared in the workers' compensation litigation. However, Dr. Rothman related his findings to both the March 1999 and October ...