                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3671-16T3

DAVID SMOLENSKI,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES, STATE
POLICE RETIREMENT SYSTEM,

     Respondent-Respondent.
___________________________________

                   Argued October 15, 2018 – Decided November 14, 2018

                   Before Judges Haas and Sumners.

                   On appeal from the Board of Trustees of the State
                   Police Retirement System, SPRS No. 4848.

                   Herbert J. Stayton, Jr., argued the cause for appellant
                   (Ridgway & Stayton, attorneys; Herbert J. Stayton, Jr.,
                   on the brief).

                   Robert S. Garrison, Jr., Deputy Attorney General,
                   argued the cause for respondent (Gurbir S. Grewal,
                   Attorney General, attorney; Melissa Dutton Schaffer,
                   Assistant Attorney General, of counsel; Robert S.
                   Garrison, Jr., on the brief).
PER CURIAM

      Petitioner David Smolenski, a former State Police detective, appeals from a

final agency decision by the Board of Trustees, State Police Retirement System (the

Board) denying him accidental disability benefits under N.J.S.A. 53:5A-10(a). To

secure accidental disability benefits under the statute, an applicant must prove

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

14, 30 (2011). The only element in dispute is whether Smolenski's permanent

and total disability from performing his duties as a state trooper is a direct result

of a traumatic event. N.J.S.A. 53:5A-10(a). Because we conclude the Board

properly applied the statute and there is sufficient credible evidence in the record

to support its findings, we affirm.

      On March 10, 2010, Smolenski was stopped at a stop sign while driving

his undercover vehicle back to the State Police Headquarters, when he was rear-

ended by another vehicle. He did not report any injuries at the scene and did

not seek immediate medical treatment following the accident. Later that day,

after he returned to work, his back went out. In an employer's accident report,

Smolenski stated he was "having back and neck pain running down to [his] right

shoulder." He did not return to work, and retired on October 1, 2013, claiming




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his back injury rendered him totally and permanently disabled from performing

his job duties.

      Claiming the accident caused his disability, Smolenski applied for

accidental disability benefits. The Board agreed that his disability prevented

him from performing his job as a state trooper, and that the accident was an

undersigned and unexpected traumatic event and not the result of his negligence,

but ultimately determined that his disability was not the direct result of the

traumatic event. The Board instead decided that Smolenski's disability was

caused by a "pre-existing disease alone or a pre-existing disease that is

aggravated or accelerated by the work effort," and was thus eligible for the lesser

benefit of ordinary disability benefits. He appealed the Board's decision, and

the matter was transferred to the Office of Administrative Law for a fact -finding

hearing.

      In her initial decision, the Administrative Law Judge (ALJ) found that the

accident aggravated his pre-existing back injury, and, therefore, was not a direct

cause of his debilitating injury to entitle him to accidental disability retirement

benefits. The ALJ's decision boiled down to her evaluation of the testimony of

the parties' respective orthopedic medical experts who both examined

Smolenski, reviewed his medical records, and found that he was totally and


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                                        3
permanently disabled due to his back injury, but differed as to the impact the

accident had on his disability.

      Gregory S. Maslow, M.D. testified on behalf of Smolenski. He stated

Smolenski's disability was mainly back pain, but that he also suffered severe leg

pain. The doctor acknowledged that Smolenski had a pre-existing back injury

dating back to 2006, but that there was no evidence of radiculopathy to L-5 prior

to the accident. He noted that, based upon a prior MRI, radiculopathy had

existed only at L-3/L-4, along with degenerative abnormalities at L-4/L-5. Thus,

Dr. Maslow opined that the L-5 radiculopathy was a new injury caused by the

accident and a direct cause of his disability.

      Jeffrey F. Lakin, M.D., testified on behalf of the Board. Like Dr. Maslow,

he noted Smolenski's documented history of back injury prior to the accident.

The doctor deduced that, based upon his review of x-rays from 2006 and an MRI

from 2009, Smolenski had herniated discs at L-3/L-4/L-5.              He opined

Smolenski's lumbar spine was worsened by the accident, but emphasized that

Smolenski's disability was the result of a pre-existing back injury to L-3/L-4 and

not a result of the accident.

      Finding both experts knowledgeable and their testimony credible, the ALJ

found Dr. Lakin's testimony more persuasive. In finding Smolenski's disability


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                                         4
was the result of a pre-existing medical condition that was aggravated by the

accident, the ALJ reasoned:

            On balance, I was better persuaded by, and give greater
            weight to, the testimony of Dr. Lakin on this issue,
            specifically crediting his detailed tying of
            [Smolenski's] conditions and injuries to specific
            incidents, treatments, and notations in [Smolenski's]
            medical history. This includes his conclusion that
            [Smolenski's] disability was not caused by the March
            10, 2010[] accident.        Conversely, Dr. Maslow's
            conclusion that [Smolenski's] disability was caused by
            the accident, was not as similarly detailed in [his]
            analysis and seemed to be more rooted in his
            observation that [Smolenski] was always able to return
            to work after previous injuries and treatments, and that
            he was only not able to do so after the event at-issue in
            this proceeding. Dr. Maslow credits the accident with
            causing a new radiculopathy without tying it to a
            similarly new objective finding or pathology. Dr.
            Lakin on the other hand, ably testified as to how the
            previously     identified     objective     findings    in
            [Smolenski's] history could evolve, and be aggravated
            by the incident in question, to the point of [Smolenski's]
            disability from performing his regular and assigned job
            duties.

      Citing Titman v. Bd. of Trs. of Teachers' Pension & Annuity Fund, 107

N.J. Super. 244 (App. Div. 1969), the ALJ upheld the Board's decision that

Smolenski's "disability was not a direct result of the alleged traumatic event of

March 10, 2010, and that [he was] not eligible for accidental disability

retirement benefits." Id. at 247 (holding direct result means a "relative freedom


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                                        5
from remoteness, whether in terms of time, intervention of other contributive

causes or the like, or a combination of such factors"); Petrucelli v. Bd. of Trs.,

211 N.J. Super. 280, 288 (App. Div. 1986) (ruling that to qualify for accidental

disability retirement, the traumatic event must be shown to cause symptoms

where none previously existed); Richardson v. Bd. of Trs., 192 N.J. 189 (2007)

(holding that the presence of a pre-existing condition will generally result in the

denial of accidental disability benefits). She stated:

            [T]he credible expert testimony of Dr. Lakin
            establishes that there was significant medical history of
            lower-back injury and disease which could cause
            radiculopathy. While the March 10, 2010[] accident
            may have aggravated or accelerated these conditions,
            the accident was not the essential significant or
            substantial contributing cause of petitioner's inability to
            perform his regular and assigned duties.

The Board subsequently adopted the ALJ's decision.

      Before us, Smolenski argues the Board misapplied Richardson and

Petrucelli in denying him accidental disability retirement benefits. We disagree.

      According deference to the Board's fact-finding, Circus Liquors, Inc. v.

Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009), we conclude its

decision is neither "arbitrary, capricious, or unreasonable, or . . . lacks fair

support in the record." Russo, 206 N.J. at 27 (quoting In re Herrmann, 192 N.J.

19, 27-28 (2007)). Under Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J.

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                                        6
174 (1980), our Supreme Court held that to qualify for accidental disability

retirement benefits, it need not be shown that the traumatic event is the "sole or

exclusive cause of the disability," but that the alleged traumatic event is "the

direct cause, i.e., the essential significant or substantial contributing cause of the

disability[.]" Id. at 187.

      We are satisfied "that the evidence and the inferences to be drawn

therefrom support" the Board's decision that Smolenski's back injury was not

the direct result of the accident, but from a pre-existing history of back injury.

Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). Thus, we will not

disturb the Board's determination that Smolenski is not entitled to accidental

disability retirement benefits.

      Affirmed.




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