WITHEY MILES VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM(BOARD OF TRUSTESS AND POLICE AND FIREMEN'SRETIREMENT 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NOT FOR PUBLICATION WITHOUT THE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-5622-15T1

WITHEY MILES,

Petitioner-Appellant,

v.

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

Respondent-Respondent.
______________________________

Argued October 2, 2017 – Decided October 19, 2017

Before Judges Messano and Vernoia.

On appeal from the Board of Trustees of the
Police and Firemen's Retirement System, Docket
No. 17661-2013.

Luretha M. Stribling argued the cause for
appellant.

Christina Levecchia, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Ms. Levecchia, on the
brief).

PER CURIAM
 Appellant Withey Miles appeals from the final agency decision

of the Board of Trustees, Police and Firemen's Retirement System

(Board) denying his application for accidental disability

retirement benefits. Having reviewed the record in the light of

the applicable law, we affirm.

I.

Appellant was employed as a police officer by the University

of Medicine and Dentistry of New Jersey. In 2007, he was kicked

by a patient and suffered an injury to his left knee. He was out

of work for three months and then returned to full-time work duty.

In 2011, he twisted his left knee and was struck in the left knee

by a fellow officer during their interaction with an unruly

patient. Appellant first sought treatment for an injury to his

left knee one month later.

In September 2012, appellant applied for accidental

disability retirement benefits, claiming a disability based on the

2007 and 2011 incidents. Appellant required a left knee

replacement and claimed he could not perform his duties as a police

officer. The Board denied the application for accidental

disability benefits, finding that appellant was "not considered

totally and permanently disabled" from the 2007 and 2011 incidents,

and that appellant's disability was the result of a "pre-existing

disease alone or a pre-existing disease that is aggravated or

2 A-5622-15T1
accelerated by work effort." The Board, however, determined

appellant was totally and permanently disabled "based on other

medical reasons than those filed on [appellant's] disability

application," and granted him ordinary disability retirement

benefits.

Appellant appealed the Board's denial of accidental

disability benefits.

At a hearing before an administrative law judge, the Board's

expert in orthopedic surgery, Dr. Richard Rosa, testified

defendant suffered from severe tricompartmental arthritis in his

left knee prior to the 2007 incident. He described the arthritis

as a chronic condition that developed over a ten to fifteen-year

period. He further opined that defendant's inability to work as

a police officer "was the result of an aggravation of

osteoarthritis and not a direct result of" any injury sustained

during the 2007 or 2011 incidents.

Appellant called Dr. Arthur Becan as an expert in the area

of orthopedics. Dr. Becan opined that appellant could not perform

his job duties due to an injury to his left knee. He testified

that he reviewed films of defendant's knee made immediately

following the 2007 incident and they showed "advanced arthritis

involving the patella femoral joint and medial compartment and

3 A-5622-15T1
only a mild arthritis involving the lateral compartment." Dr.

Becan said the conditions predated the 2007 incident.

When asked about the cause of appellant's current disability,

Dr. Becan testified that the 2011 incident caused an "aggravation

and acceleration of [appellant's] pre-existing" arthritis in his

left knee. Dr. Becan explained that the films of appellant's knee

following the 2011 incident showed that the "arthritis had

increased significantly" and appellant had "further degenerative

changes to the medial meniscus, . . . progressive chondromalacia

of the patella femoral joint, which is degeneration of the

articular cartilage underneath the kneecap." Dr. Becan opined

that the December 2011 incident did not cause the conditions in

appellant's knee, but instead the incident "caused an aggravation

and acceleration of the underlying condition."

The administrative law judge issued a written decision

finding appellant was not entitled to accidental disability

benefits. The judge noted that the experts agreed the 2011

incident did not cause defendant's disability. Instead, they

testified his disability resulted from a pre-existing and

degenerative osteoarthritis in his left knee that was aggravated

by the 2011 incident. Based on that testimony, the administrative

law judge determined the 2011 incident was not the "essential

significant or substantial contributing cause" of the disability.

4 A-5622-15T1
 The Board adopted the administrative law judge's findings of

fact and conclusion of law, and issued a final decision denying

appellant's application for accidental disability payments. This

appeal followed.

II.

"Our review of administrative agency action is limited."

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

27 (2011). Indeed, we 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. for a Certificate of Need,

194 N.J. 413, 422 (2008). "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). We review de novo an agency's

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interpretation of a statute or case law. Russo, supra, 206 N.J.

at 27.

"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.), certif. denied, 188 N.J. 219

(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 Review, 152 N.J. 197,

210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74,

79 (App. Div. 1985)).

N.J.S.A. 45:16-7(1) provides that a member of the Police &

Firemen's Retirement System1 is entitled to accidental disability

retirement benefits if he or she "is permanently and totally

disabled as a direct result of a traumatic event occurring during

and as a result of the performance of his [or her] regular or

1
"Accidental disability pensions are also offered under the Public
Employees' Retirement System (PERS), N.J.S.A. 43:15A-43; State
Police Retirement System, N.J.S.A. 53:5A-10; Prison Officers'
Pension Fund, N.J.S.A. 43:7-12; and the Teachers' Pension and
Annuity Fund (TPAF), N.J.S.A. 18A:66-39." Richardson v. Bd. of
Trs., 192 N.J. 189, 192 n.1 (2007) The grant of accidental
disability retirement benefits in those pension systems is
conditioned on "identical standards to those in N.J.S.A. 43:16A-
7." Ibid.

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assigned duties . . . ." The statute expressly provides that a

disability resulting from a "musculo-skeletal condition that was

not a direct result of a traumatic event occurring in the

performance of duty shall be deemed an ordinary disability."

N.J.S.A. 45:16A-7(4).

Our Supreme Court has explained that the terms "traumatic

event" and "direct result" reflect the Legislature's intent "to

make the granting of an accidental disability pension more

difficult." Gerba, supra, 83 N.J. at 183 (quoting Cattani v. Bd.

of Trs., Police & Fireman's Ret. Sys., 69 N.J. 578, 584 (1976)).

The Court has explained that

to obtain accidental disability benefits, a
member [of the pension system] 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);

3. that the traumatic event occurred during
and as a result of the member's regular or
assigned duties;

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 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.

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

The petitioner 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). To establish that a disability is

the "direct result" of traumatic event, it must be proven that

event was "the direct cause, i.e., the essential significant or

substantial contributing cause of the disability. . . ." Gerba,

supra, 83 N.J. at 187.

Here, appellant did not satisfy his burden. As the Board

correctly determined, although appellant showed that the 2011

incident was a traumatic event,2 he failed to demonstrate that his

disability was the direct result of the event. To the contrary,

2
We reject appellant's reliance on his claim that the Board erred
in finding that the 2011 incident was not a traumatic event under
N.J.S.A. 45:16-7(1). The Board did not deny appellant's
application for accidental disability retirement benefits because
it determined that the 2011 incident was not a traumatic event.
The Board denied the application because it determined appellant's
disability was not the direct result of the 2011 incident.

8 A-5622-15T1
the substantial credible medical evidence established that his

disability was the direct result of the pre-existing

osteoarthritis in his left knee, which was only aggravated by the

2011 incident.

Under essentially identical circumstances, the Court affirmed

the denial of accidental disability benefits in Gerba, supra, 83

N.J. 174. The Court held that "[w]here there exists an underlying

condition such as osteoarthritis which itself 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."

Id. at 186.

Here, the medical evidence the Board determined was credible

established that the 2011 incident was not the "essential

significant or substantial contributing cause," see id. at 187,

of appellant's disability. Dr. Rosa and Dr. Becan testified that

it was appellant's osteoarthritis, and not the 2011 incident, that

resulted in his disability.

The Board's findings are supported by substantial credible

evidence in the record and its determination is consistent with

the Court's interpretation of the requirements for accidental

disability benefits under N.J.S.A. 45:16-7. See Richardson,

supra, 192 N.J. at 212-13; Gerba, supra, 83 N.J. at 186.

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Affirmed.

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