                                 NOT FOR PUBLICATION WITHOUT THE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-1541-17T1

DON JOHNSON,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
_____________________________________

                   Argued telephonically February 6, 2019 – Decided August 8, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the Board of Trustees of the Public
                   Employees' Retirement System, Department of the
                   Treasury, PERS No. 2-1150929.

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

                   Stephanie Kozic, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Stephanie Kozic, on the
            brief).

PER CURIAM

      Don Johnson appeals from the October 18, 2017 final agency decision of

the Board of Trustees of the Public Employees' Retirement System ("the Board")

denying his claim for accidental disability retirement benefits under N.J.S.A.

43:16A-7, and instead granting him ordinary disability. The Board determined

that Johnson's injury from a work-related motor vehicle accident was not the

direct result of his total and permanent disability but was due to a pre-existing

degenerative condition. Considering the substantial deference that must be

accorded to the Board in such administrative matters when it applies the

pertinent statutes within its area of expertise, we affirm.

      Johnson was employed by the State of New Jersey as a Motor Vehicle

Operator I, driving trucks for the Woodbine Developmental Center. On July 29,

2014, while working, he was driving a minivan that was involved in a head-on

collision with another vehicle that entered his lane of traffic. Johnson was

transported to the hospital via ambulance.        He was released that day and

prescribed medication after x-rays and a CT scan were negative or unremarkable

for any injury to his head, neck, lower back and left wrist. Under the direction

of Dr. Steven B. Kirshner, M.D., he thereafter received physical therapy for

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                                         2
sprains to his cervical spine and lumbar spine until March 2015. He also

received a cortisone shot to his left wrist during that time.

      In March 2015, Dr. Kirshner placed Johnson on permanent light duty for

work due to a twenty-pound lift restriction based upon the results of a Functional

Capacity Evaluation and Work Ability Assessment. He opined that Johnson's

restriction was related to the July 2014 motor vehicle accident.         Because

Johnson's position did not allow for light duty, he did not return to work.

      On June 29, 2015, Johnson, who was fifty-nine years old at the time,

applied for accidental retirement disability arising from the motor vehicle

accident.

      On March 16, 2016, the Board denied Johnson's application but granted

him deferred retirement, which provides lesser compensation, based upon his

fourteen years of service. The Board determined the motor vehicle accident was

undesigned and unexpected, but that he was not totally and permanently disabled

from performing his job.         Johnson disagreed with the Board's initial

determination, so the matter was transmitted to the Office of Administrative Law

for a fact-finding hearing.

      In January 2017, two-and-a-half years after the accident and prior to the

February 14 hearing, MRIs of Johnson's lumbar and cervical spine were


                                                                          A-1541-17T1
                                         3
performed. As to the former, it revealed disc protrusions at L3-4 and L5-S1,

degenerative disc disease at L3-4, L4-5 and L5-S1, and an enlargement of the

facet joints at multiple levels. As to the latter, it revealed: herniated discs at C3-

4, C4-5, C5-6, and C6-7; unconverted hypertrophy at C3-4; bilateral foraminal

narrowing at C4-5; and central canal stenosis as well as bilateral uncontroverted

hypertrophy at C5-6.

       In addition, x-rays of Johnson's left wrist taken on February 1, revealed a

radial scaphoid joint deformity in conjunction with cartilage loss, positive ulnar

variance, and stable osteoarthritis to the distal lateral radius and scaphoid. There

was also evidence of a prior left elbow/arm surgery from 1987.

       At the hearing, Johnson testified, as did Dr. David O. Weiss, D.O., his

medical expert. The Board presented the testimony of its medical expert , Dr.

Arnold T. Berman, M.D. Both doctors examined Johnson and reviewed his

medical records, and were determined by the Administrative Law Judge (ALJ)

to be experts in orthopedics.1

       On September 11, 2017, applying the standard set forth in Richardson v.

Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189, 212-

13 (2007), the ALJ denied Johnson's application for accidental disability


1
    Dr. Berman was also qualified as an expert in orthopedic surgery.
                                                                              A-1541-17T1
                                          4
retirement benefits. The ALJ determined that the July 2014 motor vehicle

accident was undesigned and unexpected, and that Johnson was totally and

permanently disabled from performing his job, but that the accident was not the

direct result of his disability.     The ALJ found that Johnson gave credible

testimony as did the two competing expert witness.

      Dr. Weiss opined that Johnson was totally and permanently disabled from

performing his job as a truck driver because of the motor vehicle accident. In

support, he referenced his examination of Johnson, Dr. Kirshner's records, and

the recent MRI and x-ray results.

      Dr. Berman disagreed, opining that Johnson was not totally and

permanently disabled from performing his job, and that his injury was the result

of a pre-existing degenerative condition. He believed the MRIs showed a false

positive and were consistent with a person of Johnson's age. He further pointed

out that given that the MRIs were taken over two years after the accident and

not used to treat Johnson, there was no clinical correlation to the accident in

question.

      The ALJ's decision accepted some of both of the doctors' opinions. In

reaching his ruling, he explained:

                I FIND that Dr. Weiss was particularly
            CREDIBLE and BELIEVABLE.   In addition to

                                                                        A-1541-17T1
                                         5
reviewing all of the medical reports as well as
comparing them to one another, he performed his own
independent examination[,] which was consistent with
the findings of the treating physicians. Also, Dr. Weiss
examined [Johnson] about two and a half years after the
incident, and determined that many of [Johnson's]
complaints were still unresolved.         Also, various
objective tests supported his findings.

       Matters of safety are implicated, given the nature
of [Johnson's] job duties. If [Johnson] were called upon
to perform the duties as presented in [his job
description], his safety and/or that of others could be
compromised. Accordingly, I FIND that [Johnson's]
injuries do render him totally and permanently disabled
from the performance of his job duties and that he is
physically incapacitated from performing his usual or
any other duty, given the parameters imposed by his
employer.

       As to the cause of [Johnson's] injuries, however,
I give more weight to Dr. Berman's testimony. While
acknowledging that he and Dr. Weiss made similar
findings subsequent to their respective examinations of
[Johnson], he underscored that they came to different
conclusions. His analysis and explanations regarding
the nature of [Johnson's] injuries and conditions were
more persuasive; specifically that [Johnson's]
multilevel herniated discs were more likely caused by a
chronic degenerative condition and repetitive motion
rather than trauma.        The degenerative changes,
observed also by Dr. Weiss in the MRI films, were
consistent with findings in a similarly aged individual.
His conclusion drew on his experience and knowledge
of the condition but was also tailored to findings in
[Johnson's] medical history and findings of his treating
physician. Dr. Weiss, while ably offering his opinion
to the contrary, was simply successfully rebutted in this

                                                            A-1541-17T1
                           6
            regard. Accordingly, I FIND that [Johnson's] condition
            responsible for his disability was not traumatically
            induced but rather is the result of pre[-]existing
            degenerative conditions and repetitive motion.

      Johnson filed exceptions with the Board to the ALJ's decision.           On

October 18, 2017, the Board adopted the ALJ's initial decision as its final agency

decision and denied Johnson's application for accidental disability retirement,

and approved him for deferred retirement. This appeal ensued.

      The sole issue before us is whether the record supports the Board's

findings, as adopted from the ALJ's decision, that Johnson's total and permanent

disability is not a direct result of the July 2014 motor vehicle accident but the

result of a pre-existing condition.

      In Richardson, the Court held that a public employee who seeks accidental

disability retirement benefits 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);



                                                                          A-1541-17T1
                                         7
            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

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

            [192 N.J. at 212-13 (emphasis added).]

      Before us, Johnson challenges the Board's factual findings. He argues the

Board's ruling that his physical inability to perform his job was not the direct

result of the 2014 motor vehicle accident but the result of a pre-existing

degenerative condition, was not supported by the credible evidence in the

record. He specifically contends that the testimony of Dr. Berman should have

been disregarded. We are unpersuaded.

      Absent arbitrary, unreasonable, or capricious action, or a lack of support

in the record, "[a]n administrative agency's final quasi-judicial decision will be

sustained . . . ." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v.

Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an

agency determination because of doubts as to its wisdom or because the record

may support more than one result," but is "obliged to give due deference to the

view of those charged with the responsibility of implementing legislative


                                                                          A-1541-17T1
                                        8
programs." In re N.J. Pinelands Comm'n Resolution, 356 N.J. Super. 363, 372

(App. Div. 2003).

      A "strong presumption of reasonableness attaches" to the agency's

decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In

re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). The burden is upon the

appellant to demonstrate grounds for reversal by showing "the agency's action

was arbitrary, unreasonable[,] or capricious . . . ." Bowden v. Bayside State

Prison, 268 N.J. Super. 301, 304 (App. Div. 1993).

      In reviewing administrative adjudications, an appellate court must

undertake a "careful and principled consideration of the agency record and

findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n., 98 N.J.

458, 468 (1985) (citing Mayflower Sec. Co. v. Bureau of Sec. in Div. of

Consumer Affairs of Dep't of Law & Pub. Safety, 64 N.J. 85, 93 (1973)). If our

review of the record leads us to conclude that the agency's finding is clearly

erroneous, the decision is not entitled to judicial deference and must be set aside.

L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We

may not simply rubber stamp an agency's decision. In re Taylor, 158 N.J. 644,

657 (1999).




                                                                            A-1541-17T1
                                         9
      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 v. Bd. of Trustees, Police & Firemen's Ret. Sys.,

206 N.J. 14, 27 (2011) (quoting Herrmann, 192 N.J. at 27-28). From our review

of the record, the ALJ thoroughly evaluated Johnson's testimony, the medical

records, and most importantly, the competing opinions of the parties' medical

experts – neither of whom treated Johnson – as to whether his total and

permanent disability from performing his job disability was the direct result of

the 2014 motor vehicle accident. We are convinced there is substantial evidence

in the record supporting the Board's final agency decision adopting the ALJ's

ruling.

      Affirmed.




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                                      10
