JOSE TORRES VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POICE AND FIREMEN'S 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NOT FOR PUBLICATION WITHOUT THE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-2388-15T3

JOSE TORRES,

Petitioner-Appellant,

v.

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

Respondent-Respondent.
_______________________________

Submitted September 12, 2017 – Decided August 3, 2018

Before Judges Yannotti and Leone.

On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 3-10-044925.

Michael J. Hanus, attorney for appellant
(Thomas De Seno, on the brief).

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

PER CURIAM

Petitioner Jose Torres appeals from the January 11, 2016

decision of the Board of Trustees (Board) of the Police and
Firemen's Retirement System (PFRS). The Board found Torres was

qualified for ordinary disability benefits, but was not qualified

for accidental disability benefits because his disability was not

the direct result of the traumatic event. We affirm.

I.

Except as noted, the following facts were found by the

Administrative Law Judge (ALJ) in her October 26, 2016 decision

and adopted by the Board. Torres was born in 1958. In 1997, he

became a corrections officer for the Department of Corrections

(DOC). He was later promoted to senior corrections officer (SCO).

On March 17, 2011, Torres was moving two inmates from a prison

to a youth correctional facility. Once at the facility, Torres

removed the handcuffs from the first inmate. While Torres was

removing the handcuffs from the second inmate, the first inmate

began punching the second inmate. As Torres and another

corrections officer struggled to control the first inmate, the

three fell together to the floor. With the assistance of other

officers, the two officers got control of the first inmate.

Torres immediately felt pain in his groin when he stood up.

In his report he wrote and signed that day, Torres stated: "In the

process of subduing the inmate I pulled something in my left leg."

In the portion of a State report he filled out and signed that

day, Torres wrote that when he "attempted to subdue inmate, I

2 A-2388-15T3
pulled something in my left leg." In the section asking him to

describe the injury or illness and part of the body affected,

Torres wrote "pulled my left leg groin area." In the DOC

supervisor's accident/illness investigation report that day, in

the portion asking him to describe in detail the injury or illness

as reported by the employee, his supervisor wrote that "Torres

injured his left groin area." When asked to describe Torres's

physical appearance, his supervisor wrote: "Injured his groin area

(left side)." Torres testified the supervisor's report reflected

what Torres was telling him.

After Torres was transported to the hospital, he complained

of pain in his groin and pain or soreness in his neck and shoulder

area. The Board cited Torres's testimony that "the groin area was

the one that was bothering [him] most at that time." The Board

also cited Torres's testimony that, when asked if he "ever ha[d]

a pain or stiffness in [his] neck before this incident," he

replied: "[s]oreness and all that stuff."

Torres saw workers' compensation doctors, and complained

about his neck area. In April 2011, he received an MRI, which

showed he was suffering from cervical compression. In November

2011, he had surgery to his cervical spine which fused three discs,

added a bone graft, and attached a titanium cage around the discs

to support them. He was never able to return to work.

3 A-2388-15T3
 Torres applied for accidental disability retirement benefits.

The Board determined Torres was totally and permanently disabled

from the performance of his regular and assigned job duties.

However, the Board also found his disability was not the direct

result of a traumatic event, but was the result of a pre-existing

disease. Consequently, the Board granted him ordinary disability

benefits but denied accidental disability benefits.

Torres sought a hearing. The Board transferred the matter

to the Office of Administrative Law, and an ALJ held hearings. On

October 26, 2015, the ALJ found that Torres had carried his burden,

and concluded he should be awarded accidental disability

retirement benefits.

The Board reviewed the ALJ's recommended decision. On January

11, 2016, the Board modified the ALJ's findings of fact, and

rejected the ALJ's determination that Torres was entitled to

accidental disability benefits. Torres appeals.

II.

We must hew to our standard of review. Judicial "review of

administrative agency action is limited. 'An administrative

agency's final quasi-judicial decision will be sustained unless

there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record.'" Russo

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

4 A-2388-15T3
(2011) (citations omitted). The Board and similar "agencies have

'expertise and superior knowledge . . . in their specialized

fields.'" Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys.,

198 N.J. 215, 223 (2009) (citation omitted). "An appellate court

affords a 'strong presumption of reasonableness' to an

administrative agency's exercise of its statutorily delegated

responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014)

(citation omitted). "A reviewing court 'may not substitute its

own judgment for the agency's, even though the court might have

reached a different result.'" In re Stallworth, 208 N.J. 182, 194

(2011) (citation omitted).

III.

The Board disagreed with and modified some of the ALJ's

factual findings. As a result, we must consider the Board's

standard of review over the ALJ's decision under the Administrative

Procedures Act, N.J.S.A. 52:14B-1 to -15. Union v. Police &

Firemen's Ret. Sys., 170 N.J. Super. 411, 414 (App. Div. 1979);

N.J.A.C. 17:4-1.7. N.J.S.A. 52:14B-10(c) provides:

In reviewing the decision of an administrative
law judge, the agency head may reject or
modify findings of fact, conclusions of law
or interpretations of agency policy in the
decision, but shall state clearly the reasons
for doing so. The agency head may not reject
or modify any findings of fact as to issues
of credibility of lay witness testimony unless
it is first determined from a review of the

5 A-2388-15T3
 record that the findings are arbitrary,
capricious or unreasonable or are not
supported by sufficient, competent, and
credible evidence in the record. In rejecting
or modifying any findings of fact, the agency
head shall state with particularity the
reasons for rejecting the findings and shall
make new or modified findings supported by
sufficient, competent, and credible evidence
in the record.

It is not contended that the Board rejected or modified the

ALJ's findings regarding the credibility of the only lay witness,

Torres. Rather, the Board simply cited and credited parts of

Torres's testimony the ALJ had not cited.

Thus, the Board need only "state clearly [its] reasons for"

rejecting or modifying the ALJ's "findings of fact, conclusions

of law or interpretations of agency policy," "state with

particularity the reasons for rejecting" any findings of fact, and

"make new or modified findings supported by sufficient, competent,

and credible evidence in the record." Ibid.

The ALJ found "that SCO Torres was not experiencing any kind

of symptoms before the fall occurred." The ALJ reached that

finding "based on the credible testimony of SCO Torres and the

lack of any medical documentation to support the existence of any

symptoms before the accident," and because "[h]e was living an

active life, which included running and gym work, along with the

physical demands of corrections work." The Board explained it

6 A-2388-15T3
rejected the ALJ's finding because Torres testified he had

"[s]oreness and all that stuff" in his neck prior to the incident.

Thus, the Board offered an adequate explanation based on

sufficient, competent, and credible evidence.

Torres notes there was no medical evidence the soreness in

his neck before the incident was more than the simple aches that

come with a physical job. However, the Board could draw a

reasonable inference that the "[s]oreness and all that stuff"

Torres suffered in his neck was the result of Torres's significant

degenerative cervical spinal stenosis, given the substantial post-

incident medical evidence of that pre-existing condition.

The ALJ also heard the testimony of Torres's orthopedics

expert, Dr. David Weiss, and the Board's expert in orthopedics

surgery, Dr. Arnold Berman. The Board found both experts agreed

that before the incident, Torres already had multi-level

degenerative disc disease in his neck and spinal stenosis, meaning

compression of the spinal cord, which Dr. Weiss termed significant

and Dr. Berman found was very advanced. The Board also found both

experts agreed Torres did not injure his spine or his spinal canal

during the incident, but just sustained a "strain and sprain" of

his neck, a "soft-tissue, muscular injury." Torres does not

challenge those findings.

7 A-2388-15T3
 Instead, Torres cites Dr. Weiss's testimony that Torres

"developed a post-traumatic myelopathy," meaning a softening of

the spinal cord. However, it was undisputed that the first post-

incident MRI did not show any evidence of myelopathy, and that he

did not develop myelopathy until a few months later. Dr. Weiss

testified that Torres could have developed myelopathy without the

trauma, but that the timing of its occurrence after the incident

led him to conclude it was related to the incident.

In adopting Dr. Weiss's conclusion, the ALJ cited Dr. Weiss's

reasoning that Torres was "asymptomatic" and he "never had a

problem or a diagnosis of a myelopathy before the injury. So as

such, the myelopathy follows the direct surgery" and is "directly

attributable to that." The ALJ stressed that "Torres had no

symptoms," and that "the absence of symptoms at the time of the

incident, the absence of myelopathy at the time of the accident,

and the fact that it took the significant problems some time to

develop after the accident all count as proof that the serious

problems were caused by" the incident. However, as the Board

found, Torres's testimony that he had had "[s]oreness and all that

stuff" in his neck showed he was not asymptomatic before the

incident, undermining Weiss's testimony and the ALJ's findings.

Dr. Berman testified that myelopathy would "almost never" be

caused by an acute injury, that it was caused by the degenerative

8 A-2388-15T3
spinal stenosis, and that surgery was needed because of the

structural changes to Torres's spine pre-dating the incident. Dr.

Berman stated it was a "most fortunate occurrence that he had this

soft tissue injury and they discovered this severe problem . . .

because otherwise it might have taken him years longer before he

had the operation and he would just have put up with it."

The ALJ found that Dr. Berman contradicted himself in that

statement, and "therefore" that degeneration was likely to be slow

absent the incident. The Board rejected those findings. The

Board cited the experts' agreement that "Torres had significant

or advanced pre-existing degenerative spinal stenosis or

compression of the spinal cord, and [that] the compression was the

reason for Torres's surgery." The Board also cited "Dr. Weiss's

own testimony that Torres's surgical procedure is performed to

preserve function rather than restore function." The Board added

that "the soft tissue injury led to the discovery of the advanced

or significant degenerative process of compression of Torres's

spine and the surgery was performed to preserve the level of

functioning" Torres had at the time of surgery. That was a

sufficient explanation for rejecting the ALJ's findings.

Torres argues Dr. Berman could not explain why Torres never

had a complaint in any medical record before the incident. To the

contrary, Berman believed that Torres had symptoms but was a "tough

9 A-2388-15T3
guy" who put up with them without seeking medical help. Torres's

testimony was consistent with Berman's view. Berman opined Torres

did not know how significant his spinal stenosis was or else "he

would have been taken care of a long time ago."

Torres contends Dr. Berman "truly contradicted himself" by

testifying the myelopathy pre-existed the incident. However,

Berman testified he viewed spinal stenosis and myelopathy as "the

same thing" in this case because they both involved pressure on

and compression of the spinal cord. Berman ultimately clarified

that the stenosis was the cause, the myelopathy was the result,

and the "cervical spine symptoms" pre-existed the incident. In

any event, the Board found the spinal stenosis pre-existed the

incident, and the myelopathy was diagnosed by the surgeon seven

months later.

Thus, the Board's detailed decision clearly stated with

particularity its reasons for rejecting or modifying the ALJ's

findings of fact, and its modified findings were supported by

sufficient, competent, and credible evidence in the record.

IV.

Based on its modified factual findings, the Board rejected

the ALJ's legal analysis and conclusion that Torres was eligible

for accidental disability retirement benefits. Courts "apply de

novo review to an agency's interpretation of a statute or case

10 A-2388-15T3
law." Russo, 206 N.J. at 27. However, "courts afford substantial

deference to an agency's interpretation of a statute that the

agency is charged with enforcing." Richardson v. Bd. of Trs.,

Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). "'Such

deference has been specifically extended to state agencies that

administer pension statutes,' because '"a state agency brings

experience and specialized knowledge to its task of administering

and regulating a legislative enactment within its field of

expertise."'" Thompson v. Bd. of Trs., Teachers' Pension & Annuity

Fund, 449 N.J. Super. 478, 483-84 (App. Div. 2017) (citation

omitted), aff'd o.b., __ N.J. __ (2018).

"[A]n accidental disability retirement entitles a member to

receive a higher level of benefits than those provided under an

ordinary disability retirement." Patterson v. Bd. of Trs., State

Police Ret. Sys., 194 N.J. 29, 43 (2008). A PFRS "member can

qualify for ordinary disability benefits if he is disabled for any

reason; the disability need not have a work connection." Russo,

206 N.J. at 28. By contrast, a PFRS member is not eligible to "be

retired on an accidental disability retirement allowance" unless

"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." N.J.S.A. 43:16A-

7(1).

11 A-2388-15T3
 In Richardson, our Supreme Court found that "the Legislature

intended in adopting the language of N.J.S.A. 43:16A-7[(1)] to

excise disabilities that result from pre-existing disease alone

or in combination with work effort from the sweep of the accidental

disability statutes." 192 N.J. at 192. Thus, the Court held

that, to obtain accidental disability benefits, a person 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;

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.

[Id. at 212-13.]

The only disputed prerequisite here is whether Torres was

permanently and totally disabled "as a direct result of a traumatic

12 A-2388-15T3
event that is . . . caused by a circumstance external to the member

(not the result of pre-existing disease that is aggravated or

accelerated by the work)." Ibid. Torres was required to prove

that his disability is "a direct result of [the] traumatic event"

and "is not the result of pre-existing disease alone or in

combination with work effort." Id. at 212.

The facts in Richardson involved a disability caused solely

by a traumatic event. "While performing the regular tasks of his

job as a corrections officer, subduing an inmate, Richardson was

thrown to the floor and hyperextended his wrist. As a direct

result, he became permanently and totally disabled." Id. at 214.

"[A]n MRI revealed a complete tear of the ligament. Surgery to

repair the ligament was unsuccessful," and Richardson was

disabled. Id. at 193.

Here, by contrast, subduing the inmate only caused Torres a

groin injury and a sprain and strain of his neck, soft-tissue

injuries which soon healed. Richardson requires that an applicant

for accidental disability benefits meet "an extraordinarily high

threshold that culls out all minor injuries; all major injuries

that have fully resolved; all partial or temporary disabilities;

and all cases in which a member can continue to work in some other

capacity." Id. at 195; see Thompson, 449 N.J. Super. at 487.

13 A-2388-15T3
 The Board found medical tests given during the treatment for

those temporary injuries revealed that Torres had a pre-existing

degenerative disease, spinal stenosis, which had given him

soreness and other problems with his neck before the incident, and

which degenerated further into myelopathy months after the

incident. However, revelation is not causation. A "member who

has experienced a qualifying traumatic event must prove that the

event, in fact, caused him to be permanently and totally disabled."

Russo, 206 N.J. at 32.

The ALJ cited examples of traumatic and non-traumatic events

given in Richardson:

[1] a police officer who has a heart attack
while chasing a suspect has not experienced a
traumatic event. In that case, the work
effort, alone or in combination with pre-
existing disease, was the cause of the injury.
[2] However, the same police officer,
permanently and totally disabled during the
chase because of a fall, has suffered a
traumatic event. [3] Similarly, the gym
teacher who develops arthritis from the
repetitive effects of his work over the years
has not suffered a traumatic event. His
disability is the result of degenerative
disease and is not related to an event that
is identifiable as to time and place. [4] On
the contrary, the same gym teacher who trips
over a riser and is injured has satisfied the
standard.

[Richardson, 192 N.J. at 213 (numeration
added).]

14 A-2388-15T3
 Torres's case poses a different situation. Unlike the first

and third examples, Torres experienced a traumatic event. Unlike

the second and fourth examples, Torres was not "permanently and

totally disabled . . . because of a fall." Ibid. Rather, the

Board found treatment for the fall revealed his degenerative

disease, and "[h]is disability is the result of [the] degenerative

disease," making Torres's situation more akin to the first and

third examples. Ibid.

The ALJ also cited pre-Richardson cases, Cattani v. Bd. of

Trs., Police & Firemen's Ret. Sys., 69 N.J. 578 (1976), Gerba v.

Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 181 (1980),

and Petrucelli v. Bd. of Trs., Pub. Employees' Ret. Sys., 211 N.J.

Super. 280 (App. Div. 1986). In Cattani, the Court observed that

"a basis for an accidental disability pension would exist if it

were shown that the disability directly resulted from the combined

effect of a traumatic event and a preexisting disease." 69 N.J.

at 586. The Court molded that observation into a test in Gerba:

This observation was intended simply to
underscore the point that an 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
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

15 A-2388-15T3
 sufficient to satisfy the statutory standard
of an accidental disability even though it
acts in combination with an underlying
physical disease.

[83 N.J. at 187 (emphasis added).]

However, the ALJ did not find that the incident was "the

essential significant or substantial contributing cause of the

disability." Ibid. Instead, the ALJ stressed the temporal

sequence: "One day, SCO Torres was living an active life and

working; the next day, the accident occurred, and seven months

later, he required complex surgery." However, "[t]he fact that

total disability followed the muscle strain chronologically does

not necessarily mean that it was 'as a result' thereof. To hold

otherwise would be to adopt the false logic of 'Post hoc, ergo

propter hoc.'" Schulman v. Male, 70 N.J. Super. 234, 240 (App.

Div. 1961); see Black's Law Dictionary 1285 (9th ed. 2009)

(translating "post hoc, propter hoc" as "after this, therefore

because of this," and defining it as "the fallacy of assuming

causality from temporal sequence"). The Board properly rejected

this "incorrect analysis."

The ALJ relied primarily on Petrucelli. After Petrucelli

fell down a stairwell, he had disabling back pain. 211 N.J. Super.

at 283, 285. His "quiescent, non-symptomatic arthritic and

structural changes" in his back "were activated into painful

16 A-2388-15T3
symptomatology as a result of the severe fall." Id. at 284-85.

We found the fall satisfied Gerba's "essential significant or

substantial contributing cause" standard. Id. at 287-89. We

pointed out that "[a]ll the doctors agreed that the traumatic

event . . . initiated the pain." Id. at 284-85. We stressed that

his pre-existing condition was "quiescent," "asymptomatic" and

"nonsymptomatic." Id. at 284-85, 288-89. We repeatedly emphasized

that "[t]he doctors all agreed that Petrucelli's past medical

history was completely negative for any back problems. There is

not a shred of a suggestion in the record that he had had back

pain or back symptoms of any kind before the accident." Id. at

284-85.

The ALJ asserted "[l]ike Petrucelli, SCO Torres was

nonsymptomatic." As a result, the ALJ concluded that "the

similarity of the facts to those in Petrucelli compels a conclusion

that the accident was the substantial, significant cause of the

disability, such that [Torres] has demonstrated his eligibility

for a disability retirement."

However, the Board found the "[s]oreness and all that stuff"

Torres suffered in his neck before the incident was the result of

his degenerative cervical spinal stenosis. Therefore, unlike

Petrucelli, Torres was not asymptomatic, had neck pain and neck

problems, and his spinal stenosis was not quiescent before the

17 A-2388-15T3
incident. Moreover, the Board pointed out that Petrucelli's pre-

existing condition was "stable, unlike Torres's spinal stenosis,

which both Dr. Berman and Dr. Weiss agree[d] is progressive and

in some cases progressive to myelopathy." Thus, the Board properly

rejected the ALJ's reliance on Petrucelli. See Estate of

Terminelli v. Police & Firemen's Ret. Sys., 290 N.J. Super. 231,

234 (App. Div. 1996) (distinguishing Petrucelli because

"Terminelli had a preexisting symptomatic coronary artery disease,

which was aggravated by the February 3 incident"), aff'd o.b., 148

N.J. 433 (1997).

Moreover, the Board cited Dr. Weiss's diagnosis that after

the strain and sprain, Torres "had an aggravation of pre-existing

quiescent age-related multi-level degenerative disc disease and

osteoarthritis of the cervical spine." The Board found "Torres's

underlying 'advanced' or 'significant' degenerative spinal

stenosis, was 'aggravated' or 'ignited' by the incident, and was

not caused by it, thus making Torres's case more akin to Gerba

than Petrucelli."

In Gerba, our Supreme Court ruled 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

18 A-2388-15T3
'ordinary' [disability] pension benefits." Gerba, 83 N.J. at 186.

The Court upheld the Board's rejection of an accidental disability

claim where "the traumatic event contributed to the progression

of [the pre-existing] condition . . . by aggravation." Id. at

189.

In Korelnia v. Bd. of Trs., Pub. Empls.' Ret. Sys., 83 N.J.

163 (1980), the Court followed Gerba and remanded for the member

to show "that trauma constituted either the essential significant

or the substantial contributing cause of the ultimate disability,"

rather than that "the traumatic event only ignited or aggravated

an underlying osteoarthritic condition without constituting a

medically sufficient cause thereof." Korelnia, 83 N.J. at 165,

169-72.

The Court in Richardson cited Gerba favorably. Richardson,

192 N.J. at 196-97. The Court acknowledged "the members in Gerba

and Korelnia were both denied accidental disability pensions on

medical causation grounds" despite suffering "traumatic events."

Id. at 203. The Court held that Gelba, Korelnia, and Cattani had

the "correct" "view of legislative intent" regarding traumatic

events. Id. at 211-12.

Therefore, the "exacting standard of medical causation"

established in Gelba governs. 83 N.J. at 185. The Board's finding

that Torres failed to meet that standard was not arbitrary,

19 A-2388-15T3
capricious, or unreasonable, and had fair support in the record.

"Where, as here, 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." Id.

at 189.

Affirmed.

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