On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 2-10-191635.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
Robert Grimaldi appeals from a final decision of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), denying his application for accidental disability retirement benefits. In denying the request, the Board relied upon the recommendation of an Administrative Law Judge who, after conducting an evidentiary hearing, concluded Grimaldi's disabling condition did not result from his work related injury. We affirm.
The facts are taken from the agency record. Grimaldi was employed by the Old Bridge Township Public Works Department. He performed physical duties as a trash collector, which included running between stops; jumping on and off the truck; and lifting loads weighing between 80 to 100 pounds. He also patched roads and performed recycling collections.
On September 21, 2001, while assisting a co-worker in carrying boxes down a flight of stairs, Grimaldi slipped and fell, hitting head first into a wall at the base of the steps. Grimaldi suffered a torn right anterior cruciate ligament and disc herniations at C4-C5 and C6-C7. He underwent an open procedure on his right knee, and a plate was inserted to fix the herniated discs.
Grimaldi attempted to return to work, but was unable to perform his duties and applied for accidental disability retirement benefits. Upon review of the request, the Board determined Grimaldi was totally and permanently disabled and awarded him an ordinary disability pension. However, the Board found his fall did not constitute a traumatic event and, also that his disability was not the direct result of the fall, but the cumulative result of both past and present injuries. Consequently, the Board determined Grimaldi was ineligible for accidental disability retirement benefits.
Grimaldi appealed and the matter was transferred to the Office of Administrative Law (OAL) for a hearing. Prior to the hearing, the Supreme Court issued its opinion in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007). In light of the Court's instruction in Richardson, PERS agreed to reconsider its prior determination.
Upon further review, PERS found Grimaldi's fall was a traumatic event. However, it found no basis to alter its prior finding that Grimaldi's permanent disability was not the direct result of the fall, but a culmination of several injuries. The matter was returned to the OAL for a hearing.
Grimaldi testified regarding his 2001 fall, prior injuries, accidents, and past surgeries affecting his knee and spine. He stated he was injured in a car accident and underwent cervical fusion in 1991 to repair the resulting herniated discs at C5-C6. After a six-month absence, he resumed full-time employment and participated in his extra curricular activities, which included softball, hunting, and weight lifting. In 1994, his work duties were restricted because of a knee injury. In 1999, two years prior to the subject fall, he injured his knees, right shoulder, left elbow, and left bicep, when he was struck by a vehicle after he fell in a parking lot. He underwent arthroscopic surgery on his right shoulder and both knees to repair meniscus tears. After a six-month healing period, he returned to work, initially on restricted duty, but continued to refrain from playing softball and hunting. An orthopedic specialist recommended Grimaldi stop working.
During the administrative hearing, each side offered expert testimony. Grimaldi presented David Weiss, MD, an orthopedic surgeon, who conducted a February 4, 2009 physical examination and review of Grimaldi's medical records and opined "as to prognosis, diagnosis and causation." Dr. Weiss noted spasm and tenderness in Grimaldi's neck, as well as a reduced range of motion, both of which, he acknowledged, could have predated the injuries suffered from the fall. Dr. Weiss affirmed herniation of cervical discs other than those fused in 1991. He also recorded Grimaldi's current complaints of sensory deficits following the recent injury, which Dr. Weiss suggested were not previously recorded following Grimaldi's prior neck injury. Dr. Weiss concluded Grimaldi experienced an "[a]ggravation of pre-existing cervical spine pathology." Although Dr. Weiss, in reviewing Grimaldi's MRI films, observed osteoarthritis, namely, osteophytes located at C4 to C7 likely caused by aging, and narrowing of the disc spaces between C4-C5 and C6-C7 predating the fall, he nevertheless suggested Grimaldi remained fully able to perform his employment duties before he fell.
Dr. Weiss did concede there were inconsistencies in some past medical reports. Specifically, a 1992 post-operative report stated Grimaldi suffered a "large disc rupture at C5[-C]6 with significant compression and distortion of the spinal cord[,]" which likely would cause "neck and shoulder pain on a permanent basis." Nevertheless, Dr. Weiss did not alter his diagnosis of "a strained and sprained pattern to the cervical spine[,]" confirmed by MRIs; "cervical radiculitis[,]" not confirmed by an EMG study; and "aggravation of pre-existing cervical pathology."
Dr. Weiss also acknowledged Grimaldi's knee was not pristine as he experienced chondramalacia on the right knee, that is, a softening of the under surface of the patella, which can cause instability. However, Dr. Weiss found no prior records revealing complaints of problems with Grimaldi's right knee after the prior ...