                                NOT FOR PUBLICATION WITHOUT THE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-3305-17T4

BRUCE BANKO,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
___________________________

                    Submitted March 13, 2019 – Decided March 27, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from the Board of Trustees of the Public
                    Employees' Retirement System, Department of the
                    Treasury, PERS No. 2-10285031.

                    Joseph P. Schiappa, attorney for appellant.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Austin J. Edwards, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant Bruce Banko appeals from a February 22, 2018 decision by the

Board of Trustees, Public Employees' Retirement System (Board), denying him

accidental disability retirement benefits. We affirm.

      We take the following facts from the record.        Banko worked for the

Woodbridge Township Sanitation Department from 1985 to June 20, 2013, in

various capacities. He began as a lifter, and was responsible for riding on the

back of garbage trucks, lifting garbage containers, and emptying them into the

trucks. Banko was promoted to driver, which still required he occasionally

assist the lifter with heavier garbage containers. In total, Banko worked for the

Township for twenty-eight years engaged in physical labor.

      As a result, beginning in 1985, Banko reported multiple lower back and

neck complaints to his supervisors. Within the first decade of service, he began

experiencing cervical spine problems and injuries for which he received

workers' compensation benefits. In 2002, he filed for benefits as a result of neck

and back injuries caused by riding in a garbage truck. Banko also filed claims

in 2008, for work-related injuries, including his back. In 2010, Banko's doctor

treated him with medication and physical therapy for cervical spine injuries.

      On February 15, 2011, Banko observed that an automobile was about to

strike his garbage truck. As a result, he unbuckled his seat belt, stood up in the

                                                                          A-3305-17T4
                                        2
truck's cab, and attempted to move into the passenger seat.        The resulting

collision threw Banko into the passenger seat of the cab, injuring him. Banko

saw an orthopedist who treated him with physical therapy and medication. After

eight weeks, he returned to work, and in April 2011, injured his back while

lifting bulk garbage. In February 2012, Banko drove his truck under a low

overpass, causing it to strike the overpass and flip onto its side. He was not

wearing a seatbelt. Banko missed work for three days as a result of the incident.

      In February 2013, Dr. Hoan-Vu Nguyen performed neck surgery on

Banko. Dr. Nguyen's operative report noted Banko's neck injury existed for

decades prior to the February 2011, and resulted from degenerative changes.

Banko returned to work six weeks after the surgery and continued to perform

manual labor. On June 20, 2013, Banko was assigned to operate a jackhammer,

but could not complete his task due to neck pain. This proved to be his final day

of work.

      In October 2013, Banko applied for accidental disability retirement

benefits based on the February 2011 accident. He claimed the accident caused

him to suffer from neck and lower back pain, headaches, and weakness in his

right hand. The Board awarded Banko ordinary disability retirement benefits,

but denied him accidental disability retirement benefits, reasoning his disability


                                                                          A-3305-17T4
                                        3
was the result of a pre-existing condition or a pre-existing condition aggravated

or accelerated by his work.

      Banko appealed and a hearing occurred before an administrative law judge

(ALJ). The ALJ considered testimony from Banko's expert, Dr. Cary Skolnick,

and the Board's expert, Dr. Richard Rosa.

      The experts agreed Banko had experienced neck and back problems prior

to the February 2011 accident. However, after reviewing the 2011 report from

an MRI taken following the accident, Dr. Skolnick testified the accident caused

Banko to develop myelomalacia, or a softening of the spinal cord. Dr. Skolnick

identified the myelomalacia as the reason for Banko's surgery. Notably, Dr.

Skolnick's report made no mention of myelomalacia. Additionally, he was

unaware of the back injuries Banko suffered in 2008 and 2012, and the

jackhammer-related injury in 2013.

      Dr. Rosa reviewed Banko's MRI films, and reports of the neck and back

for 2010, 2011, and 2013. He opined Banko's disability was not the result of

acute trauma, but age-related degeneration. He noted no significant difference

in Banko's pre- and post-2011 accident MRIs.         Although the 2011 report

mentioned myelomalacia, he noted the surgery performed by Dr. Nguyen was

not to treat myelomalacia. He testified myelomalacia commonly manifests as a


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                                       4
degenerative condition and rarely as an acute, painful one requiring medical

intervention. Dr. Rosa concluded the myelomalacia was an incidental condition

and not the sole cause of Banko's disability, but rather, the result of several

incidents of minor injury to the spine over a lengthy period of time.

      The ALJ found both experts credible. However, he concluded "I am not

persuaded that the February 2011 accident is the essential and substantial

contributing cause of the disability. There is conflicting testimony as to what

the MRI results conclude." The ALJ concluded Banko had not met the burden

of proof by a preponderance of the evidence in order to receive accidental

disability retirement benefits.

      The Board affirmed the ALJ's decision. This appeal followed.

                                       I.

      "[We] have 'a limited role' in the review of [agency] decisions." In re

Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81

N.J. 571, 579 (1980)). "[A] 'strong presumption of reasonableness attaches to

[an agency 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)). "In order to

reverse an agency's judgment, [we] must find the agency's decision to be

'arbitrary, capricious, or unreasonable, or . . . not supported by substantial


                                                                        A-3305-17T4
                                       5
credible evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (quoting

Henry, 81 N.J. at 579-80). The burden of proving an agency action is arbitrary,

capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J.

Super. 227, 234 (App. Div. 2011) (citing McGowan v. N.J. State Parole Bd., 347

N.J. Super. 544, 563 (App. Div. 2002)).

      We "may not substitute [our] own judgment for the agency's, even though

[we] might have reached a different result." Stallworth, 208 N.J. at 194 (quoting

In re Carter, 191 N.J. 474, 483 (2007)). "It is settled that [a]n administrative

agency's interpretation of statutes and regulations within its implementing and

enforcing responsibility is ordinarily entitled to our deference." E.S v. Div. of

Med. Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010)

(alteration in original) (quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.

Super. 52, 56 (App. Div. 2001) (internal quotations omitted)). "[W]e are not

bound by the agency's legal opinions." A.B. v. Div. of Med. Assistance &

Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009) (quoting Levine v.

State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)). "Statutory

and regulatory construction is a purely legal issue subject to de novo review."

Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).




                                                                          A-3305-17T4
                                        6
      On appeal, Banko argues the Board erred because it ignored his expert's

testimony the myelomalacia resulted from the 2011 accident and combined with

his pre-existing condition to create the disability. He asserts the accident caused

the myelomalacia because the condition did not appear in his medical records

prior to the accident. Thus, Banko argues he sustained his burden of proof

because he adduced medical proof of a causal relationship between the accident

and the myelomalacia.      Banko also claims the ALJ admitted hearsay and

improperly decided the experts' credibility.

      In order

            to obtain accidental disability benefits, [an applicant]
            must prove:

                   1. that he [or she] 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 [applicant] (not the result of
                         pre-existing    disease    that    is
                         aggravated or accelerated by the
                         work);




                                                                           A-3305-17T4
                                         7
                   3. that the traumatic event occurred during and
                   as a result of the [applicant]'s regular or assigned
                   duties;

                   4. that the disability was not the result of the
                   [applicant]'s willful negligence; [and]

                   5. that the [applicant] is mentally or physically
                   incapacitated from performing his [or her] usual
                   or any other duty.

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

      The Supreme Court has held where an "underlying condition . . . 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." Gerba v. Bd. of Trs., 83 N.J. 174,

186 (1980); see also N.J.S.A. 43:15A-43. Conversely, if "the traumatic event is

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

of the disability, it is sufficient to satisfy the statutory standard of an accidental

disability even though it acts in combination with an underlying physical

disease." Id. at 187.

      Here, the record readily supports the conclusions reached by the ALJ and

affirmed by the Board, namely, that Banko did not meet his burden of proof to

establish the accident caused myelomalacia and that the condition was the


                                                                              A-3305-17T4
                                          8
reason for his disability. Faced with two equally plausible explanations for

Banko's disability, the ALJ, and then the Board, accepted Dr. Rosa's opinion,

which was supported by the credible evidence in the record. Banko's arguments

misapprehend our standard of review because they seek that we second-guess

the ALJ's fact finding and credibility determinations, which is not our role. The

Board's decision is supported by sufficient credible evidence in the record as a

whole. R. 2:11-3(e)(1)(D). Finally, Banko's argument regarding the alleged

improper admission of hearsay lacks sufficient merit to warrant discussion in a

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

      Affirmed.




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