WANDA SLATER VS. BOARD OF TRUSTEES (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0755-18T3
WANDA SLATER,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,
Respondent-Respondent.
_____________________________
Argued March 10, 2020 – Decided June 24, 2020
Before Judges Ostrer and Susswein.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-10-053314.
Samuel Michael Gaylord argued the cause for appellant
(Gaylord Popp LLC, attorneys; Samuel Michael
Gaylord, of counsel and on the brief).
Christopher Robert Meyer, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Christopher
Robert Meyer, on the brief).
PER CURIAM
Petitioner, Wanda Slater, is a former corrections officer who appeals from
a final agency decision by the Police and Firemen's Retirement System (PFRS)
Board denying her request for accidental disability benefits. The Board instead
awarded ordinary disability benefits. The key issue in dispute is whether her
disability is a direct result of traumatic work-related events. Slater contends the
Board erred by modifying the findings of an Administrative Law Judge (ALJ)
and by rejecting his recommendation to award her accidental disability benefits.
We have reviewed the record and the arguments of the parties in light of the
governing legal principles and affirm the Board's decision.
I.
Slater served as a corrections officer in the Department of Corrections
(DOC) from 2000 to 2015. In January 2006, she slipped and fell during a prison
riot at Northern State Prison. The fall caused her to twist and injure her right
ankle. She began treatment under workers' compensation with Dr. Sheldon Lin,
an orthopedic surgeon who specializes in foot and ankle care. Dr. Lin diagnosed
Slater with internal derangement of the right ankle and recommended physical
therapy and nonsteroidal anti-inflammatory medication.
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During a subsequent visit to Dr. Lin, Slater reported a popping sensation
in her right ankle. An MRI revealed a subluxing peroneal tendon and the lack
of a groove in petitioner's distal fibula. Slater's distal fibula lacked a groove
from the time of her birth.
In June 2006, Dr. Lin performed surgery to create a groove in petitioner 's
right ankle, providing stability to petitioner's peroneal tendon and preventing it
from subluxing. Slater's condition steadily improved during the course of
follow-up treatment and in April 2007, Dr. Lin cleared petitioner to return to
work.
In April 2009, Slater slipped and fell on her back and buttocks while
assisting an inmate to get out of a vehicle. She was transported to the emergency
room, where medical personnel x-rayed her lumbar spine and pelvis. Slater
reported ankle pain, although the emergency room personnel reported no
deformity regarding her ankles, did not note which ankle she reported to be
painful, and did not x-ray her ankles.
Slater initially received care for her 2009 injury from Dr. Schob. Shortly
after the accident, Dr. Schob performed an ankle exam and determined Slater's
ankles were normal. She returned to work within a few months after the 2009
accident.
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Starting in June 2010, petitioner went back to Dr. Lin. He ordered an MRI
on her left ankle in October 2014 and in January 2015, he diagnosed a peroneal
tendonitis split tear. After non-surgical treatment failed to remedy her
symptoms, Dr. Lin performed surgery to fix the torn tendon in her left ankle.
This procedure was more substantial than the surgery he had previously
performed on her right ankle. While recovering, she suffered a pulmonary
embolism. She was not able to return to work following the second surgery.
Slater filed an application for accidental disability benefits in July 2016.
In December 2016, the Board denied her application and instead granted
ordinary disability benefits. The Board determined she was not disabled as a
direct result of the slip-and-fall accidents that occurred in 2006 and 2009 but
rather as a result of complications arising from the surgery performed in 2015.
The Board declined to characterize the surgery as a work-related injury. The
Board also found there was no evidence to support Slater's contention that her
disability was a result of delayed manifestation of the injuries sustained in the
2006 and 2009 incidents.
Slater filed an administrative appeal and in February 2017, the Board
transferred the case to the Office of Administrative Law for a hearing. The
evidentiary hearing was conducted over the course of two days in February
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2018. The ALJ closed the record on June 15, 2018, and on July 3, 2018, he
rendered an initial decision, recommending Slater be granted accidental
disability benefits.
On July 27, 2018, the Board filed exceptions to the ALJ's opinion. In
August 2018, the Board voted to modify the ALJ's factual findings and rejected
the ALJ's legal conclusions. The Board issued its final factual findings and legal
conclusions on September 14, 2018. This appeal follows.
II.
Slater's treating physician, Dr. Lin, testified as her expert. He stated that
it would be an "honest assessment" to conclude that the shallow or non-existent
groove in the distal fibula of her right ankle placed her at a much higher risk of
having a subluxation. Dr. Lin testified that because she was asymptomatic prior
to the 2006 accident, there was a reasonable probability that "but for the work
accident" she could have lived her whole life without suffering problems from
the lack of a groove in her right distal fibula. Dr. Lin acknowledged that in
making this assessment, he did not review any medical records to determine
whether Slater had suffered injuries to her right ankle prior to the 2006 accident.
Rather, his knowledge of her medical history and the facts concerning her fall
in 2006 was based on her self-reporting.
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As we have noted, Slater returned to Dr. Lin's care in 2010. He ordered
an MRI on Slater's left ankle in October 2014. The MRI revealed a split tear in
the peroneal tendon of her left ankle. Dr. Lin testified a split tear only occurs
after a traumatic event and does not develop over time. He further testified that
he "could see how" the split tear was causally related to the 2009 accident. 1 He
acknowledged that he reviewed no medical documentation suggesting that Slater
had a history of problems with her left ankle.
In sum, Dr. Lin opined that the injuries to Slater's ankles related to the
2006 accident. He added that the 2009 accident was also a substantial cause of
her disability. He also opined that Slater's pulmonary embolism was causally
related to her surgery in 2015.
Dr. James Lamprakos testified for the Board. He examined petitioner in
March 2016. He was provided notes and records concerning the 2006 and 2009
incidents, and he interviewed Slater about both slip-and-fall accidents.
Dr. Lamprakos expressed concern with the time gap in the records that
had been provided to him. He noted that after Dr. Schob's note in 2009, the next
records provided to him related to petitioner's surgery in 2015. Dr. Lamprakos
1
It is not clear from Dr. Lin's testimony whether petitioner's left ankle also
lacks a groove in her distal fibula.
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testified he felt the records concerning petitioner's injuries were disjointed and
missing certain information.
Dr. Lamprakos concluded that Slater was totally disabled from performing
her duties as a corrections officer. However, he opined that the 2009 incident
was not the direct cause of her disability because although she reported pain in
the emergency room, the emergency room documented no ankle deformity and
Dr. Schob noted petitioner's ankles appeared normal. He also opined that Slater
was not disabled as a direct result of the 2006 incident.
After reviewing the testimony from Slater and the two experts, the ALJ
found that Slater's permanent disability was the direct result of her 2006 and
2009 work-related injuries. The ALJ also found that petitioner's 2015 surgery
was a result of her work-related injuries. 2 As a result of these findings, the ALJ
recommended petitioner be awarded accidental disability retirement benefits.
2
The ALJ also departed from the Board's initial decision by finding that Slater's
attempts to return to work constituted a circumstance preventing her from
applying for disability retirement within five years of the 2006 or 2009
incidents. As a general rule, an applicant seeking accidental disability benefits
must file their application within five years of the traumatic event that caused
the disability. N.J.S.A. 43:16A-7. However, the five-year statute of limitations
may be waived by a demonstration from the applicant that "the disability is due
to the accident and the filing was not accomplished within the five-year period
due to a delayed manifestation of the disability or to other circumstances beyond
the control of the member." Ibid. When an applicant's disability manifests
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After exceptions were filed, the Board issued a final decision deviating
from the ALJ's decision both factually and legally. Noting that Slater could not
provide any details about her 2006 accident, the Board concluded she failed to
prove that event was the cause of her disability.
Regarding the 2009 incident, the Board emphasized the lack of
contemporaneous medical records pertaining to any ankle injuries. The Board
found that the only records that had been produced were the emergency room
records and Dr. Schob's note, both of which reported petitioner's ankles were
normal. The Board noted that Dr. Lin's opinion relied on Slater's self-reporting
concerning the 2009 slip-and-fall. The Board found that her summary of the
2009 accident was too vague to allow Dr. Lin to make a reliable determination
outside the five-year window, the applicant must file for accidental disability
"within a reasonable period." In re Crimaldi, 396 N.J. Super. 599, 605–06 (App.
Div. 2007).
The ALJ found that Slater sought medical attention promptly after the
2006 and 2009 accidents. He further found that she continued to receive care
from multiple physicians in an attempt to continue working as a corrections
officer. The ALJ concluded it would be illogical and impractical for Slater to
have filed for disability retirement while undergoing treatment and attempting
to return to work.
In its final decision, the Board did not address whether petitioner's
disability would qualify as a delayed manifestation. In these circumstances, we
consider Slater's application for accidental disability benefits to have been
timely filed. We therefore address her contentions on the merits.
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concerning causation. The Board also noted that Dr. Schob's report, prepared
shortly after the 2009 accident, stated that her ankles were normal.
Finally, the Board rejected petitioner's contention that her 2015 left-ankle
surgery resulted from her injuries in 2006 or 2009. The Board noted that Slater
had stated she had the surgery because of dried blood after years of improper
medical treatment. Accordingly, the Board found that there was no support in
the record for Slater's claim that the accidents caused her to have surgery in
2015.
Upon making these factual findings, the Board rejected the ALJ's legal
conclusion that petitioner was entitled to accidental disability benefits. The
Board concluded that Slater failed to establish that her work-related accidents
directly resulted in her orthopedic disability. 3
III.
Slater contends the Board abused its discretion in making its factual
findings and that she presented adequate proofs to warrant accidental disability
benefits. We begin our analysis of Slater's contentions by acknowledging
certain legal principles that constrain the scope and nature of our review. As the
3
The Board also found that because Slater failed to present testimony from a
pulmonary expert, she failed to carry her burden of proof with respect to her
alleged pulmonary disability.
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New Jersey Supreme Court has made clear, appellate review of an agency's final
decision is limited. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).
Courts presume agency actions are valid and reasonable, and the burden is on
the plaintiff to overcome that presumption. Bergen Pines Cty. Hosp. v. N.J.
Dep't of Human Servs., 96 N.J. 456, 477 (1984) (citations omitted). Typically,
an appellate court will only reverse a decision of an administrative agency if it
is "arbitrary, capricious, or unreasonable, or if it is not supported by substantial
credible evidence in the record as a whole." P.F. v. N.J. Div. of Developmental
Disabilities, 139 N.J. 522, 529–30 (1995) (citations omitted).
Importantly, a reviewing court cannot substitute its own judgment in place
of the agency judgment, even if the court would have reached a different result.
In re Stallworth, 208 N.J. 182, 194 (2011) (citing In re Carter, 191 N.J. 474, 483
(2007)). Rather, when "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 itself." Clowes, 109 N.J. at 588 (citations omitted). This is
particularly true when we are reviewing an issue related to an agency's special
"expertise and superior knowledge of a particular field." Stallworth, 208 N.J. at
194–95 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
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There are limits, however, on an agency's discretion to deviate from
credibility findings made by an ALJ. N.J.S.A. 52:14B-10(c), for example,
provides in pertinent part that,
[t]he agency head may not reject or modify any findings
of fact as to issues of credibility of lay witness
testimony unless it is first determined from a review of
the record that the findings are arbitrary, capricious or
unreasonable or are not supported by sufficient,
competent, and credible evidence in the record.
Accordingly, an agency is "not at liberty to simply substitute its judgment
for that of the ALJ's." ZRB, LLC v. N.J. Dep't of Envtl. Prot., 403 N.J. Super.
531, 561 (App. Div. 2008) (quoting Cavalieri v. Bd. of Trs. of the Pub. Emps.
Ret. Sys., 368 N.J. Super. 527, 534 (App.Div.2004)). However, the testimony
of expert witnesses is not subject to the constraints of N.J.S.A. 52:14B-10(c).
Ibid.IV.
We turn next to the substantive legal principles we must apply in this
appeal. Accidental disability benefits under PFRS are more generous than
ordinary disability benefits. Kasper v. Bd. of Trs. of Teachers' Pension &
Annuity Fund, 164 N.J. 564, 573–74 (2000) (citations omitted). That more
generous level of compensation comes with a cost—applicants must satisfy a
more stringent eligibility standard. Id. at 574.
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In order to qualify for accidental disability benefits, an applicant must
demonstrate he or she "is permanently and totally disabled as a direct result of
a traumatic event occurring during and as a result of the performance of his [or
her] regular or assigned duties and that such disability was not the result of the
member's willful negligence." N.J.S.A. 43:16A-7. In Richardson v. Board of
Trustees, Police & Firemen's Retirement System, our Supreme Court distilled
N.J.S.A. 43:16A-7 into a five-factor standard that an applicant must demonstrate
to obtain accidental disability benefits. 192 N.J. 189, 212–13 (2007). As
outlined in Richardson, an applicant must prove:
1. that he [or she] 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 the result of the member's
willful negligence; and
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5. that the member is mentally or physically
incapacitated from his usual or any other duty.
[Ibid.]
In this case, only a portion of the second Richardson factor is at issue.
The Board in its initial decision found that the 2006 and 2009 slip-and-fall
accidents were identifiable as to place and time, undesigned and unexpected,
occurred during and as a result of the performance of petitioner's duties, and
were not the result of her willful negligence. Both experts testified that
petitioner was totally disabled and unable to perform her duties as a corrections
officer. The critical issue in dispute is whether petitioner's disability is a direct
result of the 2006 or 2009 work-related accidents.
The direct result standard is satisfied where the applicant demonstrates a
traumatic event was "the essential significant or the substantial contributing
cause of the resultant disability." Gerba v. Bd. of Trs. of Pub. Emps.' Ret. Sys.,
83 N.J. 174, 186 (1980). This fact-sensitive assessment becomes more
complicated when the applicant has a preexisting disease or underlying medical
condition. "Where there exists an underlying condition . . . which itself has not
been directly caused, but is only aggravated or ignited, by the trauma, then the
resulting disability is . . . 'ordinary' rather than 'accidental' . . . ." Ibid.; see also
N.J.S.A. 43:15A-43(a) ("Permanent and total disability resulting from a
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cardiovascular, pulmonary or musculo-skeletal condition which was not a direct
result of a traumatic event occurring in the performance of duty shall be deemed
an ordinary disability.").
This standard, however, is not so stringent as to require an applicant to
establish that the traumatic event is the "sole or exclusive causative agent" of
the applicant's disability. Korelnia v. Bd. of Trs. of Pub. Emps.' Ret. Sys., 83
N.J. 163, 170 (1980) (citing Gerba, 83 N.J. at 186). "[A]n accidental disability
may under certain circumstances involve a combination of both traumatic and
pathological origins." Ibid. (citing Cattani v. Bd. of Trs., Police & Firemen's
Ret. Sys., 69 N.J. 578, 586 (1976)). Ultimately, in a case involving the
combined effect of a preexisting condition and a traumatic event, the lodestar of
the direct result inquiry is simply whether the traumatic event is "the essential
significant or the substantial contributing cause of the resultant disability. "
Gerba, 83 N.J. at 186. The burden of establishing direct causation between total
disability and a traumatic event rests with the applicant, who must make the
requisite causal showing by a preponderance of the evidence. Atkinson v.
Parsekian, 37 N.J. 143, 149 (1962) (citations omitted) (applying the
preponderance standard in agency proceedings).
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V.
Applying the foregoing principles to the record before us, we are
constrained to defer to the Board's findings. We appreciate Slater's argument
that Dr. Lin, an orthopedic surgeon, was her treating physician and had the
opportunity to actually observe the condition of her ankles while performing two
surgeries. We nonetheless reject her contention that the Board abused its
discretion in discounting his opinion on the issue of causation in favor of the
opinion rendered by Dr. Lamprakos.
We note with respect to the slip-and-fall accident in 2006, Slater
recovered from her right ankle injury and returned to work in 2007. Slater did
not return to Dr. Lin's care until June 2010. The record does not show why or
how problems resurfaced with her right ankle. As Dr. Lamprakos noted when
rendering his expert opinion, there are significant gaps in the treatment records
adduced at the hearing. In these circumstances, we do not believe the Board
acted unreasonably in finding that the 2006 right ankle injury did not cause her
present disability.
So too, the Board acted reasonably in discounting Dr. Lin's opinion that
the 2009 slip-and-fall incident directly caused petitioner's left-ankle disability.
Dr. Lin testified that Slater's left ankle injury, a peroneal brevis split tear, is an
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acute injury that develops only after an inciting incident. Accordingly, this
injury would have been present while she was receiving treatment immediately
after the 2009 accident. However, both the emergency room records and Dr.
Schob's notes indicate that petitioner's ankles appeared normal and lacked any
visible deformity.
In sum, we conclude the Board acted reasonably in finding, ultimately,
that Slater has not sustained her burden to establish that her orthopedic disability
was the result of a work-related incident, or that the 2015 surgery was the result
of a work-related incident. We decline to substitute our judgment for the
judgment of the Board. Stallworth, 208 N.J. at 194 (citing Carter, 191 N.J. at
483).
Nor did the Board abuse its discretion in determining that petitioner failed
to prove her alleged pulmonary disability was a direct result of the 2006 or 2009
work-related injuries. The Board acted reasonably in discounting Dr. Lin's
expert opinion concerning petitioner's pulmonary disability because this opinion
was rendered on a topic outside of his specialty, orthopedics. Cf. Angel v. Rand
Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961) (noting that a
physician's experiential weakness may be exposed by showing he is a general
practitioner rendering an opinion on a specialized area of medicine).
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Furthermore, petitioner underwent surgery in 2015 in order to repair her left
ankle injury. As we have held, the Board reasonably concluded this surgery was
not the direct result of her work-related accidents. Accordingly, the Board
reasonably concluded that her accidents were not a substantial contributing
cause of her pulmonary disability resulting from the surgery.
To the extent that we have not addressed them, any other contentions
raised by Slater lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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