                        NOT FOR PUBLICATION WITHOUT THE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-5622-15T1

WITHEY MILES,

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,

     Respondent-Respondent.
______________________________

              Argued October 2, 2017 – Decided October 19, 2017

              Before Judges Messano and Vernoia.

              On appeal from the Board of Trustees of the
              Police and Firemen's Retirement System, Docket
              No. 17661-2013.

              Luretha M. Stribling argued the cause for
              appellant.

              Christina Levecchia, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney;
              Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Ms. Levecchia, on the
              brief).

PER CURIAM
       Appellant Withey Miles appeals from the final agency decision

of the Board of Trustees, Police and Firemen's Retirement System

(Board)      denying     his    application    for   accidental     disability

retirement benefits.           Having reviewed the record in the light of

the applicable law, we affirm.

                                         I.

       Appellant was employed as a police officer by the University

of Medicine and Dentistry of New Jersey.             In 2007, he was kicked

by a patient and suffered an injury to his left knee.               He was out

of work for three months and then returned to full-time work duty.

In 2011, he twisted his left knee and was struck in the left knee

by a fellow officer during their interaction with an unruly

patient.      Appellant first sought treatment for an injury to his

left knee one month later.

       In    September     2012,     appellant    applied    for    accidental

disability retirement benefits, claiming a disability based on the

2007   and    2011     incidents.        Appellant   required   a   left   knee

replacement and claimed he could not perform his duties as a police

officer.       The     Board    denied   the   application   for    accidental

disability benefits, finding that appellant was "not considered

totally and permanently disabled" from the 2007 and 2011 incidents,

and that appellant's disability was the result of a "pre-existing

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

                                          2                            A-5622-15T1
accelerated by work effort."                       The Board, however, determined

appellant was totally and permanently disabled "based on other

medical     reasons   than    those       filed       on    [appellant's]         disability

application,"       and    granted       him       ordinary       disability      retirement

benefits.

       Appellant      appealed       the       Board's        denial       of     accidental

disability benefits.

       At a hearing before an administrative law judge, the Board's

expert      in   orthopedic        surgery,         Dr.    Richard       Rosa,     testified

defendant suffered from severe tricompartmental arthritis in his

left knee prior to the 2007 incident.                      He described the arthritis

as a chronic condition that developed over a ten to fifteen-year

period.      He further opined that defendant's inability to work as

a   police       officer    "was     the       result        of     an    aggravation       of

osteoarthritis and not a direct result of" any injury sustained

during the 2007 or 2011 incidents.

       Appellant called Dr. Arthur Becan as an expert in the area

of orthopedics.       Dr. Becan opined that appellant could not perform

his job duties due to an injury to his left knee.                               He testified

that   he    reviewed      films    of    defendant's         knee       made    immediately

following the 2007 incident and they showed "advanced arthritis

involving the patella femoral joint and medial compartment and



                                               3                                     A-5622-15T1
only a mild arthritis involving the lateral compartment."                         Dr.

Becan said the conditions predated the 2007 incident.

      When asked about the cause of appellant's current disability,

Dr. Becan testified that the 2011 incident caused an "aggravation

and acceleration of [appellant's] pre-existing" arthritis in his

left knee.     Dr. Becan explained that the films of appellant's knee

following     the     2011   incident     showed      that    the    "arthritis   had

increased significantly" and appellant had "further degenerative

changes to the medial meniscus, . . . progressive chondromalacia

of   the    patella    femoral    joint,      which    is    degeneration    of   the

articular cartilage underneath the kneecap."                        Dr. Becan opined

that the December 2011 incident did not cause the conditions in

appellant's knee, but instead the incident "caused an aggravation

and acceleration of the underlying condition."

      The    administrative       law    judge    issued      a   written   decision

finding     appellant    was     not    entitled      to    accidental    disability

benefits.      The judge noted that the experts agreed the 2011

incident did not cause defendant's disability.                         Instead, they

testified     his     disability       resulted    from      a    pre-existing    and

degenerative osteoarthritis in his left knee that was aggravated

by the 2011 incident.        Based on that testimony, the administrative

law judge determined the 2011 incident was not the "essential

significant or substantial contributing cause" of the disability.

                                          4                                  A-5622-15T1
      The Board adopted the administrative law judge's findings of

fact and conclusion of law, and issued a final decision denying

appellant's application for accidental disability payments.              This

appeal followed.

                                         II.

      "Our review of administrative agency action is limited."

Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

27 (2011).    Indeed, we presume the validity of the "administrative

agency's exercise of its statutorily delegated responsibilities."

Lavezzi v. State, 219 N.J. 163, 171 (2014).             For those reasons,

"an   appellate     court   ordinarily         should   not    disturb      an

administrative agency's determinations or findings unless there

is a clear showing that (1) the agency did not follow the law; (2)

the decision was arbitrary, capricious, or unreasonable; or (3)

the decision was not supported by substantial evidence."               In re

Application of Virtua-West Jersey Hosp. for a Certificate of Need,

194 N.J. 413, 422 (2008).       "Where . . . the determination is

founded upon sufficient credible evidence seen from the totality

of the record and on that record findings have been made and

conclusions    reached   involving       agency   expertise,   the    agency

decision should be sustained."       Gerba v. Bd. of Trs., Pub. Emps.'

Ret. Sys., 83 N.J. 174, 189 (1980).        We review de novo an agency's



                                     5                               A-5622-15T1
interpretation of a statute or case law.          Russo, supra, 206 N.J.

at 27.

     "The burden of demonstrating that the agency's action was

arbitrary,     capricious   or    unreasonable   rests   upon   the   [party]

challenging the administrative action."           In re Arenas, 385 N.J.

Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219

(2006).    "'[T]he test is not whether an appellate court would come

to the same conclusion if the original determination was its to

make,    but   rather   whether   the   factfinder   could   reasonably      so

conclude upon the proofs.'"        Brady v. Bd. of Review, 152 N.J. 197,

210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74,

79 (App. Div. 1985)).

     N.J.S.A. 45:16-7(1) provides that a member of the Police &

Firemen's Retirement System1 is entitled to accidental disability

retirement benefits if 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



1
 "Accidental disability pensions are also offered under the Public
Employees' Retirement System (PERS), N.J.S.A. 43:15A-43; State
Police Retirement System, N.J.S.A. 53:5A-10; Prison Officers'
Pension Fund, N.J.S.A. 43:7-12; and the Teachers' Pension and
Annuity Fund (TPAF), N.J.S.A. 18A:66-39." Richardson v. Bd. of
Trs., 192 N.J. 189, 192 n.1 (2007)       The grant of accidental
disability retirement benefits in those pension systems is
conditioned on "identical standards to those in N.J.S.A. 43:16A-
7." Ibid.

                                        6                             A-5622-15T1
assigned duties . . . ."               The statute expressly provides that a

disability resulting from a "musculo-skeletal condition that was

not    a    direct    result     of    a    traumatic    event   occurring   in   the

performance of duty shall be deemed an ordinary disability."

N.J.S.A. 45:16A-7(4).

       Our Supreme Court has explained that the terms "traumatic

event" and "direct result" reflect the Legislature's intent "to

make       the   granting   of    an       accidental   disability   pension      more

difficult."        Gerba, supra, 83 N.J. at 183 (quoting Cattani v. Bd.

of Trs., Police & Fireman's Ret. Sys., 69 N.J. 578, 584 (1976)).

The Court has explained that

                 to obtain accidental disability benefits, a
                 member [of the pension system] 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;



                                              7                              A-5622-15T1
          4. that the disability was not the result of
          the member's willful negligence; and

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

          [Richardson v. Bd. of Trs., 192 N.J. 189, 212-
          13 (2007) (emphasis added).]

     The petitioner bears the burden of establishing a direct

connection   between    a   work-related        injury    and   the   claimed

disability   by   a   preponderance       of   the   evidence   supported    by

competent medical evidence.     Russo v. Teachers' Pension & Annuity

Fund, 62 N.J. 142, 147 (1973).        To establish that a disability is

the "direct result" of traumatic event, it must be proven that

event was "the direct cause, i.e., the essential significant or

substantial contributing cause of the disability. . . ."               Gerba,

supra, 83 N.J. at 187.

     Here, appellant did not satisfy his burden.                As the Board

correctly determined, although appellant showed that the 2011

incident was a traumatic event,2 he failed to demonstrate that his

disability was the direct result of the event.             To the contrary,



2
  We reject appellant's reliance on his claim that the Board erred
in finding that the 2011 incident was not a traumatic event under
N.J.S.A. 45:16-7(1).      The Board did not deny appellant's
application for accidental disability retirement benefits because
it determined that the 2011 incident was not a traumatic event.
The Board denied the application because it determined appellant's
disability was not the direct result of the 2011 incident.

                                      8                               A-5622-15T1
the substantial credible medical evidence established that his

disability     was    the   direct         result     of     the       pre-existing

osteoarthritis in his left knee, which was only aggravated by the

2011 incident.

     Under essentially identical circumstances, the Court affirmed

the denial of accidental disability benefits in Gerba, supra, 83

N.J. 174.    The Court held that "[w]here there exists an underlying

condition such as osteoarthritis which itself has not been directly

caused, but is only aggravated or ignited, by the trauma, then the

resulting disability is, in statutory parlance, 'ordinary' rather

than 'accidental' and gives rise to 'ordinary' pension benefits."

Id. at 186.

     Here, the medical evidence the Board determined was credible

established    that   the   2011    incident        was    not   the     "essential

significant or substantial contributing cause," see id. at 187,

of appellant's disability.         Dr. Rosa and Dr. Becan testified that

it was appellant's osteoarthritis, and not the 2011 incident, that

resulted in his disability.

     The Board's findings are supported by substantial credible

evidence in the record and its determination is consistent with

the Court's interpretation of the requirements for accidental

disability    benefits   under     N.J.S.A.    45:16-7.          See   Richardson,

supra, 192 N.J. at 212-13; Gerba, supra, 83 N.J. at 186.

                                       9                                    A-5622-15T1
Affirmed.




            10   A-5622-15T1
