MICHAEL MUSKA VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES'RETIREMENT SYSTEM(PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5723-14T2
    MICHAEL MUSKA,
    Petitioner-Appellant,
    v.
    BOARD OF TRUSTEES, PUBLIC
    EMPLOYEES' RETIREMENT SYSTEM,
    Respondent-Respondent.
    Argued April 26, 2017 – Decided July 11, 2017
    Before Judges Alvarez and Accurso.
    On appeal from the Board of Trustees of the
    Public Employees' Retirement System, Docket
    No. 725505.
    Meredith C. Sherman argued the cause for
    appellant (Pepper Hamilton LLP, attorneys;
    Angelo A. Stio, III and Thomas I. Plotkin, of
    counsel and on the brief).
    Robert E. Kelly, Deputy Attorney General,
    argued the cause for respondent (Christopher
    S. Porrino, Attorney General, attorney;
    Melissa H. Raksa, Assistant Attorney General,
    of counsel; Mr. Kelly, on the brief).
    PER CURIAM
    Michael    Muska     appeals     from    the   July    20,     2015     final
    determination   of      the   Board   of     Trustees,     Public    Employees'
    Retirement System (Board), denying his application for accidental
    disability retirement pursuant to N.J.S.A. 43:15A-43.                      We now
    affirm, essentially for the same reasons stated by the Board, with
    only the following brief comments.
    Muska, who was born in 1956, worked as a laborer for the
    Middlesex County Road Department from 1986 to 2009.                 On April 3,
    2008, while carrying some tools, he fell at an awkward angle into
    a deep hole, sustaining injuries to his back.              He was treated at
    a nearby medical office and sent for magnetic resonance imaging
    (MRI).   After months of physical therapy and cortisone injections,
    he ceased treatment for the injuries in February 2009. That month,
    he applied for accidental disability retirement, which was denied.
    The Board advised that because of his years of service, he was
    nonetheless eligible for deferred retirement.
    Muska appealed, and the matter was transmitted to the Office
    of Administrative Law (OAL) for a hearing as a contested case
    under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1
    to -15, and the Uniform Administrative Procedure Rules, N.J.A.C.
    1:1-1.1 to -21.6.
    During the hearing, Muska denied having had any medical issues
    with his back prior to the incident.            He also acknowledged that
    2                                   A-5723-14T2
    he received no additional treatment after February 2009.           He said
    that he merely "liv[ed] with the pain[.]"          The Administrative Law
    Judge (ALJ) also heard from two expert witnesses, Muska's treating
    physician via de bene esse deposition, and Arnold T. Berman, M.D.,
    the State's expert.      During his testimony, it became clear that
    Muska's treating physician was unaware of a 2002 MRI taken of
    Muska's back.     He also had not read the incident report nor the
    independent medical evaluation procured by the Board.             Thus the
    ALJ rejected the physician's conclusion that the injury was the
    cause of Muska's pain.
    Rather, the ALJ relied upon the report by the Board's expert,
    Dr. Berman, issued after a review of the 2002 MRI, the 2008 MRI,
    and the complete medical history.       Dr. Berman found that although
    the 2008 MRI depicted significant degeneration in the spine,
    including mild bulging of the discs, and disc desiccations, the
    same condition was depicted in the 2002 MRI.             As a result of
    comparing   the   MRIs   and   administering   a    number   of   tests    he
    characterized as objective, Dr. Berman opined that there was no
    significant difference in Muska's back between 2002 and 2008.              In
    fact, the 2002 MRI showed significant age-related degeneration and
    desiccation that was apparently untreated, and the 2008 MRI showed
    no changes.   He further testified that the most important findings
    on the MRIs "were high up in the lumbar area, and the degenerative
    3                               A-5723-14T2
    herniation   found    there   did   not       correspond    with   the    symptoms
    reported by [Muska.]"         As a result, Dr. Berman opined to a
    reasonable degree of medical certainty that the symptoms Muska
    reported    were   not   caused     by    the    fall,     but   rather    were    a
    continuation of a chronic back condition that was idiosyncratic
    and related to age.      Dr. Berman noted that in 2002 an MRI would
    not have been conducted unless Muska had experienced pain with his
    back that was unresolved after six weeks of treatment.
    The Board relied on the ALJ's extensive, detailed findings
    of fact, with two exceptions.                It rejected her statement that
    Muska's complaints of pain, as a result of the injury, were
    credible.    That statement was not corroborated, and was in fact
    contradicted, by the ALJ's other findings.                 The Board similarly
    noted that the ALJ mistakenly stated that both experts found Muska
    to be disabled.      To the contrary, Dr. Berman was "unambiguous" in
    his conclusion that Muska was not disabled.                Other than those two
    factual disagreements, the Board adopted the ALJ's ninety-nine
    specific findings of fact, and her initial decision as modified,
    including the recommendation that the application for accidental
    disability retirement be denied.              The Board again denied Muska's
    request, and this appeal followed.
    Muska raises the following points for our consideration:
    4                                 A-5723-14T2
    I.   Standard of Appellate Review.
    II. The PERS Board Erred in Denying Mr.
    Muska's Application for Disability Retirement
    Because Mr. Muska's April 3, 2008 Injury
    Directly Resulted in Permanent and Total
    Disability, Preventing Mr. Muska From Working
    as a Laborer.
    A.   Legal Standard for Accidental Disability
    Pension.
    B.   The Board Conferred Undue Weight to the
    Testimony of Dr. Berman, and its Factual
    Findings are thus Unreasonable and not
    Supported by Substantial Evidence.
    1.   Dr. Berman's findings        are the
    outlier   in    Mr.   Muska's      medical
    evaluations and treatments.
    2.   Dr. Berman's conclusions should not
    have been given more weight than Dr.
    Patti's.
    3.   Mr.   Muska's   2002   MRI   is   not
    Dispositive.
    C.   Mr. Muska is entitled to disability
    retirement as a matter of law.
    Our role in reviewing administrative agency decisions is
    limited.   In re Stallworth, 
    208 N.J. 182
    , 194 (2011).       We affirm
    such decisions where they are supported by the evidence, even if
    we may question the wisdom of the decision or would have reached
    a different result. 
    Ibid.
     A "strong presumption of reasonableness
    attaches to [an agency decision]."   In re Carroll, 
    339 N.J. Super. 5
                                 A-5723-14T2
    429, 437 (App. Div.) (internal quotation marks and citations
    omitted), certif. denied, 
    170 N.J. 85
     (2001).
    An   agency's   factual   findings       are   binding    upon     us   when
    supported by adequate, substantial, and credible evidence.                       We
    reverse an agency's decision only if we find it to be "arbitrary,
    capricious, or unreasonable, or [] not supported by substantial
    credible evidence in the record as a whole."                Stallworth, supra,
    208 N.J. at 194 (internal quotation marks and citations omitted).
    The   burden   of   establishing   that    agency     action    is     arbitrary,
    capricious, or unreasonable is on the appellant.               Bueno v. Bd. of
    Trs., 
    422 N.J. Super. 227
    , 234 (App. Div. 2011).
    In   determining     whether   agency          action    is      arbitrary,
    capricious, or unreasonable, we ask if it violates express or
    implied    legislative    policies       and    if    the     record     contains
    substantial evidence to support the findings on which the agency
    based its action. We also ask whether the agency erred in applying
    legislative policies to the facts.             Stallworth, supra, 208 N.J.
    at 194.
    Applying those standards to this dispute, we find no basis
    to reverse the Board's decision.           The record is clear that the
    Board's expert had more information available to him than did
    Muska's treating physician, who had not seen him for a number of
    years.     The fact the MRIs taken in 2002 and 2008 showed no
    6                                    A-5723-14T2
    significant difference, other than age-related degeneration that
    was not associated with Muska's complaints of pain, certainly
    bolster the ALJ's decision, and ultimately, the Board's, to credit
    the testimony of one expert over another.                State v. Cryan, 
    363 N.J. Super. 442
    , 457 (App. Div. 2003) ("A judge sitting as the
    trier of fact is free to reject any testimony, in whole or in
    part,   that   he   or   she    does   not    find   credible,   including     the
    testimony of an expert.").
    Furthermore,        that   Muska    denied      having   had     prior   back
    difficulties, when he obtained an MRI in 2002, raised a significant
    question as to his credibility.              That question is highlighted by
    the fact he has not received treatment since 2009.                  Thus there is
    no basis for reversing the Board's opinion; it is not arbitrary,
    capricious,    or   unreasonable.        It     is   supported   by    sufficient
    credible evidence on the record as a whole and accords with well-
    established law.     Therefore, we affirm.           See R. 2:11-3(e)(1)(D).
    Affirmed.
    7                                 A-5723-14T2
    

Document Info

Docket Number: A-5723-14T2

Filed Date: 7/11/2017

Precedential Status: Non-Precedential

Modified Date: 7/11/2017