TARA SASSAMAN VS. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM(PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-2543-15T1

TARA SASSAMAN,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE
PUBLIC EMPLOYEES' RETIREMENT
SYSTEM,

Respondent-Respondent.

____________________________________________

Submitted February 16, 2017 – Decided August 9, 2017

Before Judges O'Connor and Whipple.

On appeal from the Board of Trustees of the
Public Employees' Retirement System, Docket
No. PERS #2-10-281978.

Springstead & Maurice, attorneys for
appellant (Harold N. Springstead, on the
brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Jeff
S. Ignatowitz, Deputy Attorney General, on
the brief).

PER CURIAM
 Petitioner Tara Sassaman appeals from the January 21, 2016

final decision of respondent, the Board of Trustees of the

Public Employees' Retirement System (Board), which adopted the

December 3, 2015 decision of an Administrative Law Judge (ALJ)

affirming the Board's denial of petitioner's application for

accidental disability retirement benefits. We affirm.

The salient facts are as follows. In 2012, the then sixty-

one-year-old petitioner was employed as a teacher's assistant

for autistic children for the Bergen County Board of Special

Services. Her job duties included assisting students with

disabilities and behavioral problems. In July 2012, a student

pushed petitioner to the floor. She reported her right shoulder

felt very painful immediately after she hit the floor. She

treated the shoulder with ice but, by the following day, she was

unable to move her right arm.

Petitioner went to the "workmen's compensation clinic" for

treatment. An x-ray of her shoulder was unremarkable, but a

subsequent MRI revealed a torn rotator cuff in that shoulder,

which was surgically repaired in October 2012. Notwithstanding,

petitioner claimed she was unable to return to her job because

her ability to move her arm was restricted. She asserted that,

but for the injury, she would have continued working.

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 Petitioner applied for but the Board denied her accidental

disability retirement benefits. The Board did approve her

application for ordinary disability retirement, however, finding

she was totally and permanently disabled.1 Petitioner appealed

the Board's determination, and the matter was referred to the

Office of Administrative Law for a hearing before an ALJ.

During the hearing before the ALJ, petitioner's treating

orthopedist, Frank Alberta, M.D., testified he discovered a full

thickness tear in the rotator cuff during surgery, as well as a

fair amount of degeneration within the tendon itself. He stated

the tear probably existed before the fall, noting tears are

common for individuals of petitioner's age and may exist without

causing a patient any symptoms. However, he opined the tear was

smaller before the fall, and that it was the fall that caused

the full tear, which in turn was a substantial cause of her

ultimate disability.

The Board's orthopedist, Richard Rosa, M.D., testified

that, "without a doubt," the full thickness tear existed before

the fall. He noted the MRI revealed atrophy in the rotator cuff

and medial retraction of the tendon. If there had been an acute

1
An accidental disability pension provides approximately two-
thirds of a member's annual compensation in benefits. N.J.S.A.
43:16A-7(2)(b). An ordinary disability retirement allowance
awards approximately forty percent of the member's final
compensation. N.J.S.A. 43:16A-6(2)(b).
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tear at the time of the fall, there would not have been any

retraction of the tendon; instead, the tendon would have been in

position. He commented one can have a complete tear and not

have any symptoms for a long period of time, although eventually

one will experience symptoms. He opined the full tear was the

result of chronic wear and tear of the rotator cuff over the

years, and the fall merely caused the tear to increase "a little

bit," which was what caused her pain.

The ALJ credited Dr. Rosa's testimony and found

petitioner's disability was not caused by the subject incident.

The Board in turn adopted the ALJ's recommendation to deny

petitioner accidental disability retirement benefits.

On appeal, petitioner presents the following arguments for

our consideration:

POINT I: THE ALJ AND THE BOARD DEMONSTRATED
A FUNDAMENTAL MISUNDERSTANDING OF THE
CORRECT LEGAL STANDARD TO BE APPLIED TO
PETITIONER'S PROOFS WHICH RENDER THOSE
DECISIONS ARBITRARY AND UNREASONABLE.

POINT II: PETITIONER HAS SUSTAINED HER
BURDEN OF PROOF THAT HER SHOULDER INJURY WAS
A SIGNIFICANT OR SUBSTANTIAL CONTRIBUTING
CAUSE OF HER DISABILITY EVEN IF IT WAS
COMBINED WITH A PRIOR UNDERLYING CONDITION.

Our review of the Board's decision is limited. Russo v.

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

(2011). We will sustain the Board's decision "unless there is a
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A-2543-15T1
clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." Ibid. (quoting In

re Herrmann, 192 N.J. 19, 27-28 (2007)). It is not our place to

second-guess or substitute our judgment for that of the agency

and, therefore, we do not "engage in an independent assessment

of the evidence as if [we] were the court of first instance."

In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v.

Locurto, 157 N.J. 463, 471 (1999)). We are not, however, in any

way "bound by the agency's . . . determination of a strictly

legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85,

93 (1973).

Applying these standards, we discern no reason to disturb

the Board's decision. The ALJ's finding petitioner's fall was

not the direct cause of her disability, subsequently adopted by

the Board, is supported by substantial credible evidence in the

record.

Pursuant to N.J.S.A. 43:15A-43, a member of the Public

Employees' Retirement System may be retired on an accidental

disability pension if 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." In Richardson v. Board of Trustees, the Court

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held in order to qualify for accidental disability retirement

benefits, a member of the retirement system must establish:

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;

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.

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

The principal dispute on appeal is the application of 2c

listed above. The Court has recognized:

[A]n accidental disability in some
circumstances may arise even though an
employee is afflicted with an underlying
physical disease bearing causally upon the
resulting disability. In such cases, the
traumatic event need not be the sole or
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 exclusive cause of the disability. As long
as 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.

[Gerba v. Bd. of Trs., 83 N.J. 174, 187
(third emphasis added).]

The member 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).

Here, petitioner failed to meet that burden. She provided

insufficient evidence the fall was the substantial contributing

cause of her disability. The ALJ found credible Dr. Rosa's

testimony the tear in petitioner's rotator cuff was complete

before the fall, and it is that tear which is the cause of her

disability. The tear was aggravated as a result of the incident

"by a little bit" and produced pain, but the fall itself did not

cause the complete tear and resultant disability. Because the

ALJ's determination is founded upon sufficient credible

evidence, the agency decision must be sustained. Gerba, supra,

83 N.J. at 189.

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Affirmed.

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