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In the Matter of Severo Cordero.


June 19, 2012


On appeal the Board of Trustees, Public Employees' Retirement System, PERS #2-10-216693.

Per curiam.


Submitted May 8, 2012 -

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 1999 incident, while Hasson related Dr. Rothman's findings to the March 1999 incident.

In an initial decision dated September 20, 2010, the ALJ found that appellant's physical permanent and total disability was not the direct result of one specific traumatic event, but rather a combination of incidents. The ALJ further concluded that appellant's orthopedic conditions did not result from the September 2003 incident.

As to appellant's mental disability, the only issue contested on appeal, the ALJ found that: (1) the Board failed to establish that appellant had a pre-existing psychological condition; and (2) appellant's mental disability was a direct result of the March 1999 incident. The ALJ further concluded that appellant is mentally disabled as a result of the incident and that there was a delayed manifestation of the condition.

At its meeting of December 9, 2010, the Board voted to reject the ALJ's initial decision as to appellant's mental disability. Specifically, the Board rejected the ALJ's finding that appellant's mental disability was a direct result of the March 1999 incident and that he is entitled to accidental disability retirement benefits. The Board found that the ALJ's discussion of the expert testimony demonstrated an application of an incorrect legal standard as to causation. The Board also noted that the ALJ improperly weighed overwhelming evidence that the March 1999 incident did not directly result in appellant's disability and furthermore improperly shifted the burden of proof to the Board to demonstrate that appellant had a pre-existing condition before the March 1999 incident. The Board also found that appellant failed to meet his burden of proof establishing causation.

In considering the experts, the Board noted that Dr. Semel is a licensed medical doctor while Hasson, a psychologist, is not. Dr. Semel found, within a reasonable degree of medical certainty, that appellant is disabled, but that there was no evidence to establish that the March 1999 incident directly resulted in his disability.

The Board observed that the medical evidence supported Dr. Semel's opinion that appellant's injuries from the March 1999 incident resolved over time. An MRI taken just five days after the incident was "essentially normal." In addition, an MRI taken about a month after the incident was also negative. As a result, the Board agreed with Dr. Semel that, while appellant is disabled, the March 1999 incident was not the direct cause of that disability.

The Board found that Hasson, although not a medical doctor, reviewed and relied on the medical reports of Drs. Frankel and Rothman. Hasson gave little consideration to the report of Dr. Frankel, which showed no permanent neurological impairment due to the incident, but rather focused heavily on the later report of Dr. Rothman, which attributed appellant's disability to both the March 1999 incident and the October 1999 incidents. Yet, Hasson "simply ignored" the October 1999 incident, as well as Dr. Rothman's attribution of appellant's disability to that incident in part. The Board found that Hasson's testimony is consistent with Dr. Semel's conclusion that appellant's disability did not directly result from the incident of March 12, 1999.

The Board further remarked that the ALJ ignored Dr. Semel's and Hasson's agreement that appellant's disability was impacted by many intervening causes or incidents. The ALJ also failed to recognize that Hasson's opinion was founded upon the premise that the March 1999 incident did not directly result in appellant's disability but was a "triggering" event. In other words, the ALJ's decision relied upon Hasson's improper use of a "but for" test, rather than the required "direct result" standard.

The Board concluded that the ALJ improperly weighed the medical evidence and further concluded that Dr. Semel's opinion was predicated on the experience and training of a licensed, board certified medical doctor. It also found that Semel's opinion, unrefuted by any medical testimony, was more reliable than that of Hasson, who is not a medical doctor. Other than opining that the March 1999 incident preceded his disability, Hasson failed to provide the "why" and "wherefore" of how this incident caused his disability. As a result, according to the Board, Hasson's testimony could not be given any weight.

Regarding the issue of delayed manifestation, the Board rejected the ALJ's legal conclusions. The Board found that the ALJ cited to Hasson's testimony that "his condition worsened over the years," but failed to address the evidence presented, or analyze what Hasson admitted -- that the condition worsened because of intervening causes. Accordingly, the Board rejected the erroneous application of the facts to the law and reaffirmed its original determination that appellant failed to establish that his untimely filing resulted from a delayed manifestation of the disability. This appeal followed.

On appeal, appellant asserts that the Board improperly rejected the ALJ's decision and improperly "second-guessed" the ALJ's factual findings, which were based on sufficient credible evidence.

Critical to our analysis of the issues raised on this appeal is our standard of review. "On judicial review of an administrative agency determination, courts have but a limited role to perform." Gerba v. Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 189 (1980). An administrative agency's determination is presumptively correct and, on review of the facts, a court will not substitute its own judgment for that of an agency where the agency's findings are supported by sufficient credible evidence. Ibid. See also Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). Further, "[i]f the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result[]." In re Young, 202 N.J. 50, 70 (2010) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)) (internal quotation marks omitted).

Only where an agency's decision is arbitrary, capricious or unreasonable, or unsupported by sufficient credible evidence in the record, may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Atkinson, supra, 37 N.J. at 149. The party challenging the validity of the administrative decision bears the burden of showing that it is unreasonable. Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980).

To obtain accidental disability benefits, a claimant must prove:

1. that he is permanently and totally disabled;

2. as a direct result of a traumatic event that is

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

4. that the disability was not a result of member's willful negligence; and

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Richardson, supra, 192 N.J. at 213-14.]

To obtain accidental disability benefits for a mental injury precipitated by an exclusively mental stressor, a member must not only satisfy the standards in Richardson, but must also establish that the disability "result[s] from direct personal experience of a terrifying or horror-inducing event[.]" Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 50 (2008).

N.J.S.A. 43:15A-43 mandates that a member of the PERS seeking accidental disability retirement benefits be permanently and totally disabled "as a direct result of a traumatic event."

This court has observed that "'the word "direct" connotes relative freedom from remoteness, whether in terms of time, intervention of other attributive causes or the like, or a combination of such factors.'" Hillman v. Bd. of Trs., Pub. Employees' Ret. Sys., 109 N.J. Super. 449, 461 (App. Div. 1970) (quoting Titman v. Bd. of Trs., Teachers' Pension & Annuity Fund, 107 N.J. Super. 244, 247 (App. Div. 1969)).

We agree with the Board that appellant failed to meet his burden of proof. His "medical" submissions were submitted ten years after the assault incident, and Hasson's opinion contradicted both Drs. Rothman and Frankel, who found no direct causation.

The proofs indicate that appellant was involved in numerous orthopedic and psychological incidents both pre- and post-dating the March 1999 incident. He underwent a significant number of surgical procedures during the ensuing years. Ultimately, there was no showing that his disability was the direct result of the March 1999 incident.

The issue of direct result was further addressed by the New Jersey Supreme Court in Gerba, supra, 83 N.J. 174, and Korelnia v. Board of Trustees of the Public Employees' Retirement System, 83 N.J. 163 (1980). The Court noted that the legislative purpose of the amendment imposing the "direct result" requirement was to apply a more exacting standard of medical causation, thereby rejecting the worker's compensation concept that an "accident" can be found in the impact of ordinary work effort upon a progressive disease. Gerba, supra, 83 N.J. at 185-86. The Court went on to state that what is now required is a "traumatic event" that constitutes "the essential significant or the substantial contributing cause" of the applicant's disability. Id. at 186.

In Cruz-Mendez v. ISU/Insurance Services of San Francisco, 156 N.J. 556, 575 (1999), the Court found that "'[p]roximate cause' although a basic element of tort law, 'defies precise definition.'" The Court noted that, in the model jury instructions, proximate cause was defined as a "'cause which naturally and probably led to and might have been expected to produce the accident complained of.'" Ibid. See also Scafidi v. Seiler, 119 N.J. 93, 101 (1990) (quoting Model Jury Charges (Civil), § 7.10)). Acknowledging the disparity among definitions, the Court observed that, "[o]ther courts have defined 'proximate cause' as a 'cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.'" Cruz-Mendez, supra, 156 N.J. at 575 (quoting Daniel v. Dep't of Transp., 239 N.J. Super. 563, 595 (App. Div.), certif. denied, 122 N.J. 325 (1990)).

In contrast, the essential significant or substantial cause of a disability requires far more demanding proof than a standard which requires a cause that "probably led to and might have been expected to produce the accident complained of." Rather, appellant must establish by expert medical opinion that the incident of March 12, 1999 directly resulted in his total and permanent disability. See Gerba, supra, 83 N.J. at 185-86; Korelnia, supra, 83 N.J. at 170. Generally, the weight given to expert testimony depends on such factors as whether the expert witness testified in his specialty and whether the expert's conclusions are based only on the subjective complaints of a patient. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961).

Because the ALJ used the incorrect legal standard, the Board properly rejected her decision. As noted above, appellant must satisfy his burden by proving that the March 1999 incident was the essential significant or substantial contributing cause of his disability. Gerba, supra, 83 N.J. at 186. This direct result standard is far more exacting than appellant's "proximate cause" standard and, as explained in Gerba, was purposely made to be so by the Legislature. We accept that the Board correctly rejected the ALJ's finding regarding the element of direct causation.

Finally, we note that the claim was not filed within the five year limitations period prescribed in N.J.S.A. 43:15A-43. Although the Board addressed the merits of appellant's claim, we note that during the ensuing ten years following the March 1999 incident, appellant was examined and determinations were made as to both his physical and psychological condition, with neither Drs. Frankel nor Rothman making the observations that became the opinion of Dr. Hasson.

We are satisfied that the Board correctly determined that appellant was not entitled to accidental disability benefits.



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