NOT FOR PUBLICATION WITHOUT THE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-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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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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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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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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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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