                                 NOT FOR PUBLICATION WITHOUT THE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-1974-18T3

ELDRIDGE HAWKINS, JR.,

          Petitioner,

v.

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

     Respondent.
______________________________

                   Submitted March 30, 2020 – Decided April 22, 2020

                   Before Judges Fasciale and Mitterhoff.

                   On appeal from the Board of Trustees of the Police and
                   Fireman's Retirement System, Department of the
                   Treasury, PRFS No. 3-10-47790.

                   Eldridge T. Hawkins, Sr., attorney for appellant.

                   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
      Eldridge Hawkins, II, appeals from a November 13, 2018 decision by the

Board of Trustees (the Board) of the Police and Firemen's Retirement System

(PFRS), concluding that Hawkins was ineligible for accidental disability

retirement benefits because his disability was not the direct result of an October

2009 incident (the 2009 incident), but rather pre-existed it.1 The Board issued a

comprehensive eight-page written decision. We affirm.

      Hawkins applied for accidental disability in December 2010. The Board

determined that he was totally and permanently disabled, but denied his

application, relying on medical documentation demonstrating that his disability

was due to a pre-existing disease and not the direct result of the 2009 incident.

The Board, however, granted Hawkins ordinary disability retirement benefits

retroactive to March 2011. In reaching its final decision, the Board determined

that the Administrative Law Judge (ALJ) applied the wrong burden of proof,




1
   Hawkins filed a related complaint against numerous parties, including Board
members, alleging that Board members discriminated against him when they
initially denied his application for accidental disability benefits. The Board
transferred the matter to the Office of Administrative Law for a hearing. We
affirmed an order dismissing that Law Division complaint, indicating that
Hawkins could appeal the Board's final decision if it ruled against him. See
Hawkins v. Hutter, No. A-1783-14 (App. Div. Oct. 7, 2016). The Board
thereafter issued its final decision, which is the subject of this appeal.
                                                                          A-1974-18T3
                                        2
and therefore the Board rejected the ALJ's conclusion that Hawkins was entitled

to accidental disability benefits.

      The Board concluded the ALJ's findings were not supported by the

credible evidence. The Board noted that the ALJ's findings were based on the

report of Dr. Stephan Kosmorsky, who—in the Board's view—did not discuss

how Hawkins's injury was the direct result of the 2009 incident. And the Board

determined that the ALJ ignored Hawkins's lack of treatment after the 2009

incident, specifically that Hawkins waited for almost a year and a half after the

incident, and one year after seeing Dr. Lee, before getting treatment for his knee.

According to the Board, Dr. Lakin, who concluded Hawkins's knee problems

were not the direct result of the 2009 incident, offered the more reliable opinion

as to causation.

      The Board further concluded that the ALJ misapplied Richardson v. Board

of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), which

the Board said requires the disabling incident to be the "essential significant or

substantial contributing cause of the . . . disability." The ALJ, according to the

Board, failed to explain how Hawkins hitting his knee on the dashboard caused

a permanent injury. It is undisputed that Hawkins suffered a prior knee injury

requiring reconstructive ACL surgery in 2006.


                                                                           A-1974-18T3
                                        3
On appeal, Hawkins argues:

     POINT I

     THE . . . BOARD, IN ITS REJECTION OF THE ALJ
     TRIAL COURT DECISION DID NOT FOLLOW THE
     LAW BY IMPROPERLY ASSERTING THAT THE
     "ALJ APPLIED THE INCORRECT BURDEN OF
     PROOF" AND SHOULD BE REVERSED.

     POINT II

     THE [ALJ] DECISION WHICH WAS FAVORABLE
     TO [HAWKINS] RESTS ON THE ALJ CREDIBILITY
     FINDINGS OF WITNESSES WHICH THE . . .
     BOARD HAS IMPROPERLY DISTURBED IN
     VIOLATION OF LAW WITH ITS NOVEMBER 13,
     2018 DECISION AND SHOULD BE REVERSED AS
     A MATTER OF LAW.

     POINT III

     THE [BOARD], THROUGH MISAPPLICATION OF
     LAW,   IMPROPERLY     DENIED   HAWKINS'
     ACCIDENTAL     DISABILITY    RETIREMENT
     BENEFITS PRIOR TO GETTING REVERSED BY
     THE ALJ AND ITS SUBSEQUENT DENIAL WAS
     ARBITRARY[,] CAPRICIOUS, UNSUPPORTED BY
     THE RECORD AND SHOULD BE REVERSED.

     POINT IV

     HAWKINS'[S]    TOTAL   AND   PERMANENT
     DISABILITY IS THE DIRECT RESULT OF THE
     [2009 INCIDENT] AND NOT THE RESULT OF A
     PRE[-]EXISTING    DISEASE   AND    ANY
     SUGGESTION TO THE CONTRARY BY THE


                                                    A-1974-18T3
                             4
BOARD BELIES THE FACTUAL FINDINGS OF
THE ALJ AND IS PLAINLY UNREASONABLE.

POINT V

HAWKINS IS NOT REQUIRED TO PROVE THAT
THE [2009 INCIDENT] WAS THE SOLE CAUSE OF
HIS PERMANENT DISABILITY, ONLY THAT IT
WAS THE SUBSTANTIAL CONTRIBUTING
CAUSE OF HIS PERMANENT DISABILITY AND
ANY LEGAL ARGUMENT OR DECISION BY THE
BOARD TO THE CONTRARY IS WRONG AS A
MATTER OF LAW AND SHOULD BE REVERSED.

POINT VI

ALL   SUBSEQUENT     WRITTEN     MEDICAL
OPINIONS ISSUED BY DR. JEFFERY LAKIN, THE
STATE INDEPENDENT MEDICAL EXAMINER,
BEYOND THE INITIAL REPORT ISSUED BY HIM
ON MARCH 30, 2011 WERE GENERATED WITH
NEFARIOUS INTENT, ARE NET OPINIONS, NOT
LEGALLY SOUND, DEEMED NOT CREDIBLE BY
THE ALJ AND SHOULD BE DISREGARDED
LEAVING THE BOARD WITH A PLAINLY
UNREASONABLE      DECISION    WHICH     IS
UNSUPPORTED BY THE RECORD.

POINT VII

[HAWKINS] NEVER HAD A DISEASE PRE[-
]EXISTING OR OTHERWISE AND THUSLY DOES
NOT FALL WITHIN THE         RICHARDSON
STANDARD EXCLUSION FOR PRE[-]EXISTING




                                             A-1974-18T3
                    5
            DISEASES, THUS THE . . . BOARD SHOULD BE
            REVERSED AS A MATTER OF LAW[. 2]

      "Our review of [an] administrative agency action is limited." Russo v.

Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing

courts 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. Vorhees

for a Certificate of Need, 194 N.J. 413, 422 (2008).           "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. 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


2
  Hawkins also submitted a reply brief, dated December 16, 2019, which raises
largely the same arguments encompassed by his merits brief.
                                                                        A-1974-18T3
                                       6
Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J.

Super. 74, 79 (App. Div. 1985)). "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). That said, appellate courts review de

novo an agency's interpretation of a statute or case law. Russo, 206 N.J. at 27.

      A PFRS member is entitled to accidental disability benefits under N.J.S.A.

43:16A-7(a)(1). Under that provision, PFRS authorizes an award of accidental

disability benefits to a member provided that:

            [T]he medical board, after a medical examination of
            such member, shall certify that the member 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 and that
            such disability was not the result of the member's
            willful negligence and that such member is mentally or
            physically incapacitated for the performance of his
            usual duty and of any other available duty in the
            department which his employer is willing to assign to
            him.

            [N.J.S.A. 43:16A-7(a)(1).]




                                                                         A-1974-18T3
                                         7
In Richardson, the Court clarified the meaning of the term "traumatic event,"

and set forth a five-pronged standard mandating that a pension-system member

seeking accidental disability benefits prove:

            1. [T]hat 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; an[d]

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

            [192 N.J. at 212-13.]

The issue here is whether the Board's finding that Hawkins's injury/disability

was not directly caused by the 2009 incident⸻but rather pre-existed it⸻is

supported by the record.




                                                                        A-1974-18T3
                                         8
      At the outset, this was a contested case submitted to the ALJ.             In

accordance with N.J.S.A. 52:14B-10(c), "[a]ll hearings of a State agency

required to be conducted as a contested case under this act or any other law shall

be conducted by an [ALJ]."       The ALJ then files a report and a decision

containing the recommended findings of fact and conclusions of law with th e

agency. Ibid. Upon reviewing the record, the agency may either "adopt, reject

or modify the recommended report and decision." Ibid. Thus, the Board may

modify or reject any findings of fact, conclusions of law, or interpretations of

policy if the reasons for doing so are clearly stated. Ibid. If the Board modifies

or rejects the ALJ's findings of fact, it must state the reasons for rejecting the

findings and make new or modified findings that are supported by sufficient,

competent, and credible evidence in the record. Ibid.

      The Board adopted the ALJ's findings of fact with several modifications.

The Board emphasized that the ALJ incorrectly placed the burden of proof on

the Board rather than Hawkins. See Richardson, 192 N.J. at 212. The Board

further noted the ALJ ignored key facts in his credibility findings. While it is

true that an agency cannot reject or modify credibility findings of lay witness

testimony, this does not apply to the expert testimony at issue here. N.J.S.A.

52:14B-10(c); see also ZRB, LLC v. N.J. Dep't of Envtl. Prot., 403 N.J. Super.


                                                                          A-1974-18T3
                                        9
531, 561 (App. Div. 2008) (holding that lay testimony, but not expert testimony,

is subject to the constraints of N.J.S.A. 52:14B-10(c)).

      The ALJ " did not discuss how . . . Hawkins's 2009 injury [was] a direct

result of the 2009 incident – [Hawkins] simply stated, where asked about direct

result, that he is permanently disabled as a result of the incident." The Board

also faulted the ALJ for failing to address the lack of a treatment record for

Hawkins's knee for almost a year and a half after the 2009 incident. The Board

also explained that it found Dr. Lakin's testimony more reliable because he

explained the implications that the ACL reconstruction surgery had on

Hawkins's knee and the direct implications that an accident such as the 2009

incident would have had on a person's knee.

      Because the Board found that the ALJ did not address key facts and

questions as to the direct result of the 2009 incident, it rejected the ALJ's

conclusions of law. The ALJ failed to address basic questions, such as how

Hawkins hitting his knee on the dashboard would have caused a permanent knee

injury. The Board analyzed the facts under prior case law and explained how it

arrived at its decision.

      It is undisputed that the 2009 incident constitutes a traumatic event in

accordance with the statute. But the Board denied Hawkins accidental benefits


                                                                        A-1974-18T3
                                      10
because "there is no explanation of causation to establish that the 2009 incident

directly resulted in . . . Hawkins's disability." Hawkins conceded that he had

surgery on his knees after he was injured in a motorcycle accident in 2006.

      The Board found that the ALJ merely accepted Dr. Lee's testimony

without seeking further explanation. Dr. Lee opined that the 2009 incident

directly caused Hawkins's disability, but he never explained how hitting one's

knee on the dashboard could cause instability and laxity. Dr. Lee based his

opinion on Hawkins's subjective complaints, but Hawkins did not complain

about his knee pain until more than a year after the 2009 incident, despite

seeking treatment for his neck, shoulder and back just one month after the

incident. Hawkins sought treatment from Dr. Schob less than a month after the

2009 incident, and he did not complain about pain in his left knee at that time.

      Hawkins's argument essentially places the burden of proof on the Board.

He claims that "because the Board has not and cannot contradict [Hawkins's]

assertions . . . , the Board's denial is not supported by the record, is arbitrary,

capricious, plainly unreasonable and should be reversed." As the Board noted,

and established in Richardson, the petitioner seeking benefits bears the burden

of proof. See 192 N.J. at 212.




                                                                           A-1974-18T3
                                       11
      The Board found Dr. Lakin reliable because, unlike Dr. Lee, he explained

the basis of ACL laxity and knee instability. He explained that these injuries

are caused by "non-contact injury, twisting or turning. So a dashboard, you

wouldn't expect it." He further stated that his review of medical records revealed

that Hawkins endured contusions on his left knee as a result of the 2009 incident,

but contusions do not cause instability or laxity of the knee and usually take "[a]

period of days to a couple weeks" to heal. Dr. Lakin opined that Hawkins's ACL

reconstruction surgery left him with "structural weaknesses after the surgery."

Ultimately, Dr. Lakin concluded that Hawkins's disability was "not a direct

result of [the 2009 incident]."

      The Board's findings of fact and conclusions of law are clearly supported

by the record. As noted, the Board was not required to accept the ALJ's findings

of fact or conclusions of law. See N.J.S.A. 52:14B-10(c). The Board's decision

to modify the ALJ's findings of law and its ultimate conclusions of law are

adequately supported by the record. The Board found Dr. Lakin credible, as he

more fully explained Hawkins's condition. In finding Dr. Lakin credible, in

emphasizing the gaps in the ALJ's findings and conclusions, and in correctly

placing the burden on Hawkins, the Board's findings and conclusions are

supported by the record and are not arbitrary nor capricious.


                                                                           A-1974-18T3
                                       12
      Although Hawkins asserts that his permanent disability is a direct result

of the 2009 incident, the Board correctly rejected the ALJ's findings of fact and

conclusions of law. See N.J.S.A. 52:14B-10(c). The Board found Dr. Lakin

more credible than Dr. Lee and used his opinions in arriving at its own

conclusion of law. In its decision, the Board explained why it found Dr. Lakin

credible, and how it used his conclusions to arrive at its decision. See ZRB, 403

N.J. Super. at 561. Hawkins bore the burden of proof, and the Board could not

rectify why Hawkins waited over a year before complaining about kne e pain,

how hitting his knee caused permanent disability, and how the 2009 incident

was the direct cause of the permanent disability.        Thus, Hawkins has not

sufficiently established that his permanent disability was the direct result of the

2009 incident.

      We reject Hawkins's argument that he does not need to prove that his

permanent disability is the direct result of the 2009 incident. N.J.S.A. 43:16A-

7 explicitly states that to qualify, a member must certify that he is "permanently

and totally disabled as a direct result of a traumatic event occurring." The

Richardson Court reaffirmed "that the disability be a 'direct result of a traumatic

event.'" 192 N.J. at 195 (quoting N.J.S.A. 43:16A-7); see also Gerba, 83 N.J. at

186 (analyzing and upholding the direct result requirement); Patterson v. Bd. of


                                                                           A-1974-18T3
                                       13
Trs., State Police Ret. Sys., 194 N.J. 29, 42, 50 (2008) (quoting N.J.S.A.

43:16A-7(a)(1)) (imposing requirement that a member prove he or she is

"'permanently and totally disabled as a direct result of a traumatic event'");

Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 428 (2018)

(remanding on the issue of whether petitioner's disability directly resulted from

the incident). Hawkins must satisfy this burden of proof to qualify.

      Hawkins argues that Dr. Lakin's testimony and 2013 reports contain net

opinions and were submitted with "nefarious intent." Under Rule 1:7-2, to

properly preserve an issue for appeal, "a party, at the time the ruling or order is

made or sought, shall make known to the court specifically the action which the

party desires the court to take or the party's objection to the action taken and the

grounds therefor." If a party failed to raise an issue below, relief is not warranted

unless that party demonstrates plain error by showing that the error was "clearly

capable of producing an unjust result." R. 2:10-2; see also Jacobs v. Jersey Cent.

Power & Light Co., 452 N.J. Super. 494, 502 (App. Div. 2017). Hawkins failed

to object to both Dr. Lakin's testimony and the introduction of his reports at the

administrative hearing. In fact, the ALJ asked Hawkins whether he objected to

the admission of Dr. Lakin's 2013 reports, to which he replied, "I have no

objection."


                                                                             A-1974-18T3
                                        14
      Nevertheless, Dr. Lakin's testimony does not constitute a net opinion. The

net opinion rule "'forbids the admission into evidence of an expert's conclusions

that are not supported by factual evidence or other data.'" Townsend v. Pierre,

221 N.J. 36, 53-54 (2015) (quoting Polzo v. County of Essex, 196 N.J. 569, 583

(2008)).    A conclusion "'"based merely on unfounded speculation and

unquantified possibilities"'" is inadmissible.      Id. at 55 (quoting Grzanka v.

Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). The expert must "'give the

why and wherefore ' that supports the opinion, 'rather than a mere conclusion.'"

Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J.

115, 144 (2013)). However, the expert may not base their opinion solely on

their own subjective standard. Pomerantz Paper Corp. v. New Cmty. Corp., 207

N.J. 344, 373 (2011) (stating that "if an expert cannot offer objective support for

his or her opinions, but testifies only to a view about a standard that is 'personal,'

it fails because it is a mere net opinion").

      The Board found Dr. Lakin's testimony more credible because he

             reliably explained how the knee is different structurally
             and mechanically after an ACL reconstruction,
             explained how there could be laxity in the knee shortly
             after the surgery, took into consideration that the
             records are inconsistent as to . . . Hawkins's knee
             problems, and explained that laxity and instability are
             caused by twisting or turning injuries, not by hitting a
             knee on a dashboard.

                                                                              A-1974-18T3
                                         15
The Board relied on Dr. Lakin's testimony because he was able to adequately

explain the lack of causal connection between the accident and Hawkins's

injured knee. Cf. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) (finding an

expert opinion to be a net opinion where there was a "failure of the expert to

explain a causal connection between the act or incident complained of and the

injury or damage allegedly resulting therefrom"). In fact, the Board explicitly

rejected Dr. Lee's testimony and Dr. Kosmorsky's report because they failed to

explain how Hawkins's injury could be the direct result of the 2009 incident.

      To the extent that we have not addressed Hawkins's remaining

contentions, we conclude that they are without merit to warrant attention in a

written decision. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                        A-1974-18T3
                                        16
