May 31, 2013
HOPE WRIGHT, Petitioner-Appellant,
PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2012
On appeal from the Board of Trustees, Public Employees' Retirement System, PERS No. 2-1019796.
Hope Wright, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).
Before Judges Alvarez and St. John.
Appellant Hope Wright appeals from the final decision of the Board of Trustees of the Public Employees' Retirement System (Board), which denied her application for accidental disability retirement benefits. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The record discloses the following facts and procedural history leading to the administrative determination under review.
In February 1997, Wright began working for the Englewood Board of Education as a non-certified computer specialist. On July 26, 2006, Wright injured her hand when she was standing in the bathroom at work and a bathroom stall door fell towards her. Wright allegedly lifted her left arm to protect herself and a small metal piece from the top of the door pressed into her hand between her palm and thumb. Due to the incident, Wright says that she suffers pain, drops things, and cannot do things she used to be able to do with both her hands. Additionally, she wears a brace for support and takes over-the-counter medication for pain.
As a result of the incident, Wright filed an application for accidental disability retirement benefits with the Board. In her application, Wright claimed she was permanently disabled as a result of the July 26, 2006 incident. Thereafter, Wright's employer, the Englewood Board of Education, filed an employer certification for disability retirement. The Board referred Wright for an independent medical examination which was performed by Dr. Jeffrey Lakin. Dr. Lakin concluded that Wright was "not totally and permanently disabled from the performance of her job duties." On June 18, 2008, the Board denied Wright's application. Wright appealed the Board's decision and the Board transferred the matter to the Office of Administrative Law pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13 where it was filed for determination as a contested case. Hearings were conducted before an administrative law judge (ALJ), and, on October 14, 2011, the ALJ issued an initial decision affirming the Board's denial of Wright's petition and dismissing Wright's appeal. Exceptions were filed by Wright and reply exceptions were filed by the Deputy Attorney General. The Board adopted the initial decision and recommendations of the ALJ. This appeal ensued.
Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). The burden is on Wright in her appeal to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J.Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).
"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious and unreasonable standard, the reviewing court is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, the reviewing court accords substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). A reviewing court should not substitute its own judgment for the agency's even though it might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).
With those principles in mind, we turn to Wright's contentions. Wright argues that she satisfactorily proved that she was totally and permanently disabled, and further that the Board improperly denied her disability benefit application because of Dr. Lakin's inaccurate and incomplete expert reports.
A member of the public employees' retirement system is entitled to accidental disability retirement benefits if she establishes, by a preponderance of the credible evidence, that she is "totally and permanently disabled as a direct result of a traumatic event[.]" N.J.S.A. 43:15A-43. A "traumatic event" need not be the sole or exclusive cause of a member's disability. Gerba v. Bd. of Trustees, Pub. Emps.' Ret. Sys., 83 N.J. 174, 187 (1980). Rather, "the traumatic event" must be the "essential significant or substantial contributing cause of the disability[.]" Ibid. The precise language articulating this standard is as follows:
A member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application or the application of one acting in his behalf, be retired by the board of trustees, if said employee is 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, on an accidental disability allowance.
We are satisfied that there is sufficient credible evidence in the record to support the Board's finding that Wright was not totally and permanently disabled as a result of her hand injury sustained on July 26, 2006. Although Wright's expert, Dr. Renata Weber, testified that Wright was permanently and totally disabled as a result of that injury, the Board's expert, Dr. Lakin, offered a contrary opinion.
Dr. Weber was of the view that Wright's injury was consistent with a scapholunate ligament tear. She further opined that the injury was progressive and that "it will never go back to normal, and so as [of] right now, [Wright's] disabled, and even fixing the ligament doesn't necessarily predict or guarantee that [she] will become no longer disabled and able to do the same kind of work that [she was] doing before." Dr. Weber did not view Wright's magnetic resonance imaging (MRI) films or any x-rays. Dr. Weber performed a shift test and Watson test to check the stability of the carpal ligaments. The shift test was negative while the Watson test was positive. When examining Wright, Dr. Weber did not "ask her in great detail about how exactly the door fell or where her hand ended up, or was it crushed between the door and the side of the bathroom door."
Alternatively, Dr. Lakin opined that Wright did not have a scapholunate tear "[b]ased upon the fact that [Wright] has no clinical symptoms over the scapho-lunate area, . . . and two, the mechanism of injury doesn't support an injury to the scapho-lunate area." Dr. Lakin also performed a shift test and Watson test, both were negative. After examining Wright, Dr. Lakin determined that,
[t]he scaphoid bone had no tenderness. . . . Her range of motion was 75 degrees of extension, which is excellent, 60 degrees of flexion, 20 degrees of ulnar deviation, which is going towards the pinky, and then she had 15 degrees of radial deviation, and when measured her sensation of her finger, they were all noted to be normal. . . . She had no signs of any carpel tunnel . . ., and no signs of any decor veins, which is tendinitis, and then her strength was full, and there was no signs of any nerve entrapments in the — for the medical nerve in the proximal form.
Dr. Lakin concluded that Wright was "not totally and permanently disabled from the performance of her job duties."
The ALJ found that Dr. Lakin's testimony on this issue was more persuasive than that of Dr. Weber. The ALJ stated:
Considering the testimonies of Drs. Weber and Lakin, the position of Lakin appears more plausible. Dr. Weber, for example, concluded that the severity of the "crush injury" would cause a disruption of the scapholunate ligament in Wright. However, Dr. Weber testified that she did not ask Wright in great detail about "how exactly the door fell or where her hand ended up, or was it crushed between the door and the side of the bathroom door." Without this important information, one of Dr. Weber's core reasons for believing that Wright's main injury was a direct result of the falling door becomes significantly tenuous. In addition, Dr. Weber's reliance on an MRI report of Wright's left hand without having viewed either X-rays or the corresponding MRI films raise questions, as noted by Dr. Lakin, regarding which part of the scapholunate ligament the alleged tear is to, as well as, whether the scapholunate widening as noted in the MRI report of the left hand is present in the right hand as well.
The ALJ went on to state:
In this matter, the Board determined that the incident described as occurring on July 26, 2006, was identifiable as to time and place and that this incident was undersigned and unexpected. The issue of direct result was not definitively resolved by petitioner. Dr. Weber's testimony and conclusions regarded the July 26, 2006, event, as involving a crushing between two surfaces. Wright's testimony, however, made no mention of a "crushing" incident or that her hand or wrist were caught between surfaces. And, although it is undisputed that an October 5, 2007, MRI report regarding Wright's left wrist and hand indicates a tear of the scapholunate ligament both the specific part of the scapholunate ligament in which the tear was found and the nature and potential significance of the tear were not addressed by Wright Without more the evidence for a finding of disability is inadequate
The Board agreed with the ALJ's finding on this point and the record supports the Board's determination The ALJ weighed the expert testimony and concluded that Dr Lakin's opinion regarding Wright's injury was more accurate It was Wright's burden to prove by a preponderance of the credible evidence that she is "totally and permanently disabled as a direct result of a traumatic event" NJSA 43:15A-43 The Board's determination based on the expert evidence presented that Wright did not satisfy her burden was amply supported by credible evidence Our review is limited and Wright has not demonstrated grounds for reversal
The Board's decision to deny Wright's application for accidental disability retirement benefits was not arbitrary capricious or unreasonable