                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2061-17T2

DIONISIO RAMOS,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
_____________________________

                    Submitted March 4, 2019 – Decided April 3, 2019

                    Before Judges Messano and Fasciale.

                    On appeal from the Board of Trustees of the Public
                    Employees' Retirement System, Department of the
                    Treasury, PERS No. 2-10-308765.

                    Feeley & LaRocca, LLC, attorneys for appellant (Pablo
                    N. Blanco, of counsel and on the brief; John D. Feeley,
                    on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Juliana C. DeAngelis, Deputy
                    Attorney General, on the brief).
PER CURIAM

      Pursuant to N.J.S.A. 43:15A-43, a member of the Public Employees'

Retirement System (PERS) is eligible for accidental disability retirement if he

"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 . . . ." (emphasis added). In Richardson v. Board of Trustees, Police &

Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), interpreting

N.J.S.A. 43:16A-7, a similar provision of the Police and Firemen's Retirement

System, the Court held that to obtain accidental disability benefits a member

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 the result of the member's
              willful negligence; and

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                                           2
            5. that the member is mentally or physically
            incapacitated from performing his usual or any other
            duty.

We have held the same test applies under the PERS statutory scheme. Brooks

v. Bd. of Trs., Pub. Emps.' Ret. Sys., 425 N.J. Super. 277, 281 (App. Div. 2012).

      Appellant Dionisio Ramos was employed by the City of Newark as a truck

driver. In February 2014, his snowplow struck a "concrete barrier or wall"

obscured by snow. Ramos injured his right thigh and back and received epidural

injections to relieve pain caused by a herniated disc. He returned to work.

      However, in October 2014, when he again experienced pain, Ramos

underwent a microdiscectomy to repair the herniation. His treating doctor

examined Ramos in December and concluded he was progressing well and could

return to work in six-to-eight weeks. Sometime between then and January,

however, Ramos slipped on some ice, twisting his back in the process. Another

MRI revealed a "recurrent herniated disc" at the same level. Two months later,

Ramos underwent spinal fusion surgery and never returned to work.

      Ramos applied for accidental disability benefits. The Board of Trustees

(the Board) of PERS determined that Ramos satisfied most of the standards set

forth in Richardson. However, the Board concluded the disability was "the

result of a pre-existing disease alone or a pre-existing disease that is aggravated


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                                        3
or accelerated by the work effort."      It awarded Ramos ordinary disability

benefits.   He appealed, and the matter was transferred to the Office of

Administrative Law as a contested case.

      The Administrative Law Judge considered the testimony of Ramos, Dr.

David Weiss, a board-certified orthopedist called as a witness by Ramos, and

Dr. Andrew Hutter, an orthopedic surgeon who testified on behalf of the Boar d.

The ALJ made factual findings, which the Board later accepted and adopted.

      The ALJ found the facts we outlined above. She also found that Ramos

did not need fusion surgery prior to the January 2015 slip on ice, and that, while

spontaneous recurring disc herniations may occur in between nine-and-twenty-

one percent of the cases, trauma can cause a recurrent herniation. The ALJ

framed the "issue" as "whether Ramos['s] disability is the direct result of the

February 2014 snow[]plow accident or the twisting injury of January 2015." The

ALJ distinguished the case from the Court's decision in Gerba v. Board of

Trustees, Public Employees' Retirement System, 83 N.J. 174 (1980), and our

decision in Petrucelli v. Board of Trustees, Public Employees' Retirement

System, 211 N.J. Super. 280 (App. Div. 1986), noting those cases dealt with the

effect of workplace accidental injuries upon pre-existing conditions or injuries.




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                                        4
Here, the issue was simply whether the earlier snowplow accident caused

Ramos's disability.

      The ALJ noted the doctors' differing opinions but found Dr. Hutter "more

persuasive." She concluded:

            Prior to the twisting injury . . . , [Ramos] was improving
            and would have been able to return to work according
            to [his treating doctor]. The evidence and testimony did
            not show that the February 2014 snow[]plow accident
            was the essential significant or substantial contributing
            cause of the disability because Ramos was recovering
            from the October 2014 surgery and it was anticipated
            that he would return to work in six[-]to[-]eight weeks
            ....

The ALJ affirmed the Board's denial of accidental disability benefits, and the

Board, in turn, adopted the ALJ's decision in its final administrative decision.

This appeal followed.

      Unlike several other decisions that involve a workplace injury aggravating

a pre-existing injury or condition, Ramos argues this appeal presents a "purely

legal issue" never addressed before, i.e., "whether a public employee who

sustains a subsequent aggravation of an injury initially suffered in a workplace

accident should . . . be denied an accidental disability pension." We agree this

case presents factual circumstances converse to those in most reported decisions.




                                                                         A-2061-17T2
                                        5
However, we find nothing particularly unique about the legal analysis required

to resolve this appeal. We affirm.

      Our review of the Board's decision is limited. Russo v. Bd. of Trs., Police

& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). We will sustain the Board's

decision "unless there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record." Ibid. (quoting In re

Herrmann, 192 N.J. 19, 27-28 (2007)). "A reviewing court 'must be mindful of,

and deferential to, the agency's expertise and superior knowledge of a particular

field.'" Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150,

158 (2018) (quoting Circus Liquors, Inc. v. Governing Body of Middletown

Twp., 199 N.J. 1, 10 (2009)). "Moreover, '[a] reviewing court may not substitute

its own judgment for the agency's, even though the court might have reached a

different result.'" Ibid. (alteration in orginal) (quoting In re Stallworth, 208 N.J.

182, 194 (2011)). We are not, however, bound by the agency's interpretation of

a statute, which, along with relevant case law, we review de novo. Mount v. Bd.

of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 418-19 (2018).

      "[T]he choice of accepting or rejecting testimony from witnesses resides

with the administrative agency, and so long as that choice is reasonably made it




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                                         6
is accorded deference on appeal." In re Young, 202 N.J. 50, 70-71 (2010)

(quoting Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001)).

      Here, the ALJ and the Board found Dr. Hutter more credible. His opinion

was that Ramos's spine was "compromised by the initial injury and was

improving after he had surgery to correct the weakened condition." According

to Dr. Hutter, Ramos would have had the same treatment after the January 2015

twisting injury — spinal fusion surgery — even if the first trauma — the

snowplow accident — had not occurred. Dr. Hutter opined that the second

incident was the cause of Ramos's recurrent disc herniation. We defer to the

Board's acceptance of these opinions.

      In order to prove his eligibility for accidental disability pension benefits,

Ramos needed to prove that his disability was the "direct result of [the 2014]

traumatic event." Richardson, 192 N.J. at 212.

            [T]he purpose behind the Legislature's change of the
            term "result" to "direct result" was "intended to impose
            a stringent test of medical causation and . . . that the
            trauma . . . must at the very least be the essential
            significant or the substantial contributing cause of the
            disability."

            [Kasper v. Bd. of Trs. of the Teachers' Pension &
            Annuity Fund, 164 N.J. 564, 577 (2000) (alteration in
            original) (quoting Korelnia v. Bd. of Trs., Pub. Emps.'
            Ret. Sys., 83 N.J. 163, 170 (1980))].


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                                        7
      Having accepted Dr. Hutter's opinions, the Board's conclusion that

Ramos's disability was not the "direct result" of the 2014 snowplow incident

naturally followed. Under our highly deferential standard of review, we find no

basis to disturb that decision.

      Affirmed.




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