MATTHEW DAVIS VS. BOARD OF TRUSTEES (POLICE 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NOT FOR PUBLICATION WITHOUT THE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-4070-18

MATTHEW DAVIS,

Petitioner-Appellant,

v.

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

Respondent-Respondent.
__________________________

Argued May 4, 2021 – Decided May 20, 2021

Before Judges Yannotti and Mawla.

On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-10-53659.

Stuart J. Alterman argued the cause for appellant
(Alterman & Associates, LLC, attorneys; Stuart J.
Alterman, of counsel; Arthur J. Murray, on the briefs).

Juliana C. DeAngelis, Deputy Attorney General, argued
the cause for respondent (Robert S. Garrison, Jr.,
Director of Legal Affairs, PFRSNJ, attorney; Melissa
 H. Raksa, Assistant Attorney General, of counsel;
Juliana C. DeAngelis, on the brief).

PER CURIAM

Matthew Davis appeals from a final decision of the Board of Trustees

(Board), Police & Firemen's Retirement System (PFRS), which found that he is

not entitled to accidental disability retirement benefits pursuant to N.J.S.A.

43:16A-7. We affirm.

I.

In October 1999, Davis began working as a firefighter and emergency

medical technician (EMT) in the Township of Westhampton. In December

2005, while skiing, Davis injured his right knee. He was diagnosed with a torn

anterior cruciate ligament (ACL), and thereafter he had patellar tendon autograft

ACL reconstructive surgery.

During that procedure, the doctor removed a third of Davis's right kneecap

and grafted it to the injured ACL. Thereafter, Davis had physical therapy. In

July 2006, Davis completed a functional capacity evaluation, and he was cleared

to return to work without any restrictions. Davis returned to work. He also took

on additional responsibilities, including membership in the Burlington County

Response and the New Jersey Urban Search and Rescue teams.

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 On March 7, 2015, at approximately 2:00 a.m., Davis and other

firefighters were dispatched to a fire in Willingboro. At the time, it was

extremely cold, and the ground was covered with snow and ice. The firefighters

needed water to fight the fire. Davis grabbed a wrench and ran to the hydrant to

turn on the water. As Davis was running, he slipped and fell on the ice, landing

on his right knee and hand. He attempted to get back on his feet but fell and

again landed on his right knee.

Davis drove himself to a hospital in Mount Holly for treatment. At the

hospital, an X-ray was taken. It was negative for fractures but showed changes

due to the previous ACL repair, as well as certain degenerative changes. Davis

was referred to an orthopedic surgeon, who prescribed cortisone injections and

physical therapy. Davis continued to have pain and swelling of the right knee.

In May 2015, Davis had arthroscopic surgery on his right knee. The

surgeon informed Davis that, during the procedure, he cleaned up scar tissue

from the 2006 ACL surgery. After the surgery, Davis continued going to

physical therapy and received additional cortisone injections. In October 2015,

Davis was found to have achieved maximum medical improvement (MMI). He

was given a medical release.

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 Thereafter, Davis had two fitness-for-duty evaluations. The results of the

evaluations were consistent with the MMI determination. Davis was cleared to

return to work with restrictions on lifting and climbing ladders with weights.

Although the fire department offers light duty, Davis was informed he could not

return to work as a fireman.

On February 19, 2016, Dr. Evamaria Eskin of Virtua Hospital wrote a

letter stating, "Davis is not capable of safely performing work requiring more

than very limited squatting, kneeling or crawling. Therefore, he is unable to

safely perform the . . . essential functions of a [f]irefighter or the job demands

required of an EMT." Davis never returned to work.

In December 2015, Davis submitted an application for accidental

disability retirement pursuant to N.J.S.A. 43:16A-7. He claimed that he was

permanently disabled as a result of the 2015 accident. In February 2017, the

Board denied the application. The Board found that Davis's disability was due

to a pre-existing disease alone or a pre-existing disease that was aggravated or

accelerated by the work effort.

Davis filed an administrative appeal, and the Board referred the matter to

the Office of Administrative Law for a hearing before an Administrative Law

Judge (ALJ). At the hearing, Davis presented testimony from Arthur Becan,

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M.D. and Jeffrey F. Lakin, M.D. testified for the Board. Both witnesses are

orthopedic surgeons, and they both performed physical examinations of Davis.

Dr. Lakin is board-certified; Dr. Becan is not.

Dr. Becan testified that due to his ACL reconstruction surgery, Davis "did

not have [a] 100 percent normal knee before the [March 2015] injury." He stated

that Davis's total and permanent injury to his right knee was directly and

causally related to the March 2015 incident, as the incident was the "sole

producing factor" for his inability to work.

Dr. Becan also opined that Davis's skiing accident and resulting surgery

played no role in his total and permanent disability. He stated that if Davis's

skiing injury contributed to the March 7, 2015 injury, he would have expected

some physical manifestation in Davis's right knee after he returned to work

following the skiing injury.

Dr. Becan further testified that ACL reconstructive surgeries typically

have excellent results. He said ACL reconstructive surgery does not weaken the

knee, but an individual who undergoes the surgery "may develop some arthritis

of that knee . . . 10's or 20's or 30 years later." He noted that Davis had mild

arthritis in his knee as of 2015, and arthritis can cause swelling, loss of motion,

and knee pain. Dr. Becan also stated that an ACL surgery could "increase [the]

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probability of" an individual suffering a "more extensive [subsequent] injury"

by "five or ten percent."

Dr. Lakin testified that Davis's X-rays showed degenerative changes after

the March 2015 incident. He stated that Davis's ACL reconstruction surgery

"caused the arthritis[, and] was clearly the contributing factor to his disability

and [the March 2015] accident was just a minor aggravation . . . ."

Dr. Lakin testified that Davis's skiing accident and surgery predisposed

him to arthritis. He cited a study by the American Academy of Orthopedic

Surgery (AAOS), which revealed that patients who receive ACL reconstructive

surgery have an increasingly significant chance of developing arthritis over

time.

Dr. Lakin concluded that Davis is totally and permanently disabled from

performing the duties of a firefighter and EMT. He opined that Davis's disability

was the result of pre-existing arthritis caused by the ACL reconstructive surgery.

On November 30, 2018, the ALJ issued an initial decision. The ALJ

rejected Davis's contention that Dr. Lakin's reports constitute net opinions. The

ALJ found that Dr. Lakin had properly supported his opinions by citations to his

training and experience, his examination of Davis, and his review of Davis's

medical history. The ALJ determined that Dr. Lakin's opinion "provided a 'why'

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and 'wherefore' of Davis's injuries and causation for his permanent disability."

The ALJ therefore found that Dr. Lakin's opinion was admissible.

The ALJ also found that both Dr. Becan and Dr. Lakin were "competent,

well qualified, [and] professional," but "Dr. Becan's testimony was the more

persuasive and entitled to greater weight." The ALJ stated that Dr. Becan

"convincingly opined" that Davis would not have been physically incapacitated

from his normal work responsibilities but for the incident in March 2015.

The ALJ determined that the issue presented was "whether the traumatic

event was the substantial factor in causing [Davis's] permanent disability." The

ALJ found that Davis was eligible for accidental disability retirement benefits.

The ALJ determined that "the work effort alone, or in combination with his

degenerative disease, did not cause Davis's disability. Rather, [the] unexpected

fall [in March 2015] was the substantial cause of [Davis's] permanent disability."

The Attorney General filed exceptions to the ALJ's initial decision, and

Davis filed a response to the exceptions. The Board issued a letter dated January

16, 2019, indicating that at its meeting of January 14, 2019, it voted to reject the

ALJ's initial decision. The Board determined that Davis was not entitled to

accidental disability retirement benefits, but he will receive an ordinary

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disability retirement. The Board stated that it would later issue findings of fact

and conclusions of law.

By letter dated January 29, 2019, the Board provided its final decision on

Davis's application. The Board found that "Davis had an underlying condition

that was traumatically induced by a 2005 skiing accident." The Board noted that

Davis admitted he had a "stability issue with [his right] knee" after the 2005

incident. The Board found, based on Dr. Lakin's testimony, that Davis had a

compromised knee because the injury to his right knee in 2005 and subsequent

surgery in 2006, "dramatically increased his chances of suffering from

symptomatic arthritis (independent of the 2015 incident)."

The Board concluded that Davis was not entitled to accidental disability

retirement benefits because his underlying condition, long-standing pre-existing

arthritis, had "aggravated or ignited" the pain he experienced from the March

2015 accident. The Board noted that Davis had forty-five days in which to

appeal its final decision to this court.

On February 28, 2019, Davis filed with the Board an application for

reconsideration. The Board issued a letter dated April 9, 2019, informing Davis

that it had denied his request for reconsideration, noting that he had not

submitted "any new information."

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 The Board stated that in its January 29, 2019 letter, Davis was informed

he had a right to appeal to this court "within 45 days of the date of that letter."

The Board stated that Davis's appeal to the Board has been exhausted, and any

appeal would be to this court.

On May 22, 2019, Davis filed a notice of appeal (NOA) in which he stated

he was appealing the Board's decision denying his request for reconsideration

dated April 9, 2019. On June 4, 2019, Davis filed an amended NOA. Davis

corrected the case caption and under "additional" information, noted that the

ALJ had issued the initial decision on November 30, 2018, and the Board had

issued its decision on January 16, 2019, and a final decision on January 29, 2019.

II.

The Board argues that this appeal must be limited to its April 2019

decision denying reconsideration. The Board contends we should disregard all

of Davis's arguments pertaining to the Board's January 29, 2019 decision. We

disagree.

The NOA must "designate the judgment, decision, action or rule, or part

thereof appealed from . . . ." R. 2:5-1(e)(1) to (e)(3)(i). Although Rule 2:5-

1(e)(1) does not so provide, "it is clear that it is only the judgments or orders or

parts thereof designated in the [NOA] which are subject to the appeal process

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and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1 on R. 2:5-

1(e)(1) (2021). See Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62

(App. Div. 2002); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66

(App. Div.), aff'd o.b., 138 N.J. 41 (1994). "Consequently, if the notice

designates only the order entered on a motion for reconsideration, it is only that

proceeding and not the order that generated the reconsideration motion that may

be reviewed." Pressler & Verniero, cmt. 5.1 on R. 2:5-1(e)(1).

As noted, on May 22, 2019, Davis filed his NOA and case information

statement (CIS). The court's records indicate that on May 31, 2019, a

representative from the Clerk's Office informed Davis's counsel that "as it

appears now, you are only appealing the April 09, 2019 decision listed on the

[NOA]. . . . [I]f you are also appealing the November 30, 2018, January 16, 2019

and January 29, 2019 decisions, as indicated on the [CIS], you must submit an

Amended [NOA] adding those decisions."

On June 4, 2019, Davis's counsel filed an amended NOA, which stated

that he was appealing the Board's April 9, 2019 decision. In the section

pertaining to "additional" information, Davis noted that the ALJ had issued the

initial decision on November 30, 2018, and the Board had issued its decision on

January 16, 2019, and a final decision on January 29, 2019. We are convinced

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that in his amended NOA, Davis sufficiently identified the Board's final decision

of January 29, 2019, as one of the decisions he was appealing.

The Board argues, however, that our decision in Fusco requires that we

limit our review to the Board's April 9, 2019 decision on reconsideration. In

Fusco, the plaintiff filed a NOA of an order denying his motion for

reconsideration of an order entered in favor of granting summary judgment to

the Board of Education of the City of Newark. 349 N.J. Super. at 459-60. In

his appellate brief, the plaintiff raised five issues that related to the order

granting summary judgment in favor of the defendant. Id. at 460.

The defendant argued that we should limit our review to the order denying

reconsideration. Ibid. We agreed with the defendant. Id. at 460-61. We noted

that the plaintiff did not state in the NOA or the CIS that he was appealing from

the order granting summary judgment. Id. at 460. We also noted that in its CIS,

the defendant stated that the order denying reconsideration formed the "sole

basis" for the appeal. Ibid. Even so, the plaintiff "never sought to clarify or

amend his [NOA]." Id. at 460-61.

The Board's reliance upon Fusco is misplaced. As noted, in that matter,

the appellant never stated he was appealing from the trial court's order granting

summary judgment in favor of the defendant, and the appellant never sought to

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"clarify or amend" the NOA. In this case, Davis clarified and amended his NOA,

and identified the Board's final decision of January 29, 2019, as one of the

decisions he was appealing.

The Board also relies upon our decision in W.H. Industries, Inc. v.

Fundicao Balancins, Ltda, 397 N.J. Super. 455 (App. Div. 2008). In that case,

the trial court entered an order dismissing the complaint and later filed an order

denying the plaintiff's motion for reconsideration. Id. at 458. The plaintiff's

NOA stated that it was appealing the order denying the motion for

reconsideration. Ibid.

We noted that only orders designated in the NOA "are subject to the appeal

process and review." Ibid. (citing Sikes, 269 N.J. Super. at 465-66). We

decided, however, to address the propriety of the prior order, even though we

were not required to do so. Id. at 459.

The Board's reliance on Fundicao also is misplaced. In that case, the

appellant did not amend the NOA to clarify that it was appealing from the order

granting summary judgment to the defendant. Here, Davis has amended his

NOA and indicated he is appealing from the Board's final decision of January

29, 2019.

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 Furthermore, in Fundicao, we exercised our discretion and decided the

issues raised concerning the summary judgment order. Therefore, Fundicao

does not require us to limit our review to the Board's April 9, 2019 decision on

Davis's request for reconsideration.

III.

The Board further argues that we should not consider Davis's arguments

regarding the Board's January 29, 2019 decision because Davis did not file a

timely appeal from that decision. The Board notes that a NOA from a final

decision or action of a State administrative agency must be filed "within 45 days

from the date of service of the decision or notice of the action taken." R. 2:4-

1(b).

The Board notes that the time for appeal is tolled by the filing of a timely

application for reconsideration. R. 2:4-3(b). The Board asserts that because

Davis filed his request for reconsideration on February 28, 2019, he only had an

additional fourteen days in which to file a NOA after the Board issued its April

9, 2019 decision. The Board therefore argues that Davis had until April 23,

2019 in which to appeal the January 29, 2019 decision. As noted, Davis filed

his NOA on May 22, 2019.

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 However, the time for appeal may be extended for thirty days on a

showing of good cause. R. 2:4-4(a). We are convinced there is good cause to

extend the time for appeal, nunc pro tunc. As we have explained, Davis filed

his NOA within the thirty-day extension period, and in his amended NOA, he

indicated that he is appealing from the Board's January 29, 2019 decision.

IV.

The Board further argues that we should limit our consideration of the

appeal to the items identified in the statement of items comprising the record on

appeal (SICR). In the SICR, the Board only identified the NOA filed on May

22, 2019, the Board's April 9, 2019 letter, and Davis's motion for reconsideration

with attachments. The Board did not include the evidence of the records

pertaining to the ALJ's initial decision and the Board's decision of January 29,

2019.

Rule 2:5-4(a) provides that "[t]he record on appeal shall consist of all

papers on file in the court or courts or agencies below, . . . the stenographic

transcript or statement of the proceedings therein, and all papers filed with or

entries made on the records" of this court. Davis's appendix includes records

filed with the ALJ and the Board with regard to his application, the ALJ's initial

decision, and the Board's final decisions of January 29, 2019, and April 9, 2019.

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 The Board has not identified any records in the appendix that were not

submitted to the ALJ or the agency. Therefore, we reject the Board's contention

that we should limit our review to the items identified in the SICR.

V.

Davis argues that the Board erred in denying his application for accidental

disability retirement benefits and in denying his application for reconsideration.

We disagree.

"Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re

Herrmann, 192 N.J. 19, 27 (2007)). "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."

Ibid. (quoting Herrmann, 192 N.J. at 27-28). Our review of an agency's decision

is limited to considering:

(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.

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 [In re Proposed Quest Acad. Charter Sch. of Montclair
Founders Grp., 216 N.J. 370, 385-86 (2013) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

We are required to affirm an agency's findings of fact if "supported by

adequate, substantial and credible evidence." In re Taylor, 158 N.J. 644, 656-

57 (1999) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J.

474, 484 (1974)). Moreover, "[i]f [we are] satisfied after [our] review that the

evidence and the inferences to be drawn therefrom support the agency head's

decision, then [we] must affirm even if [we] feel[] that [we] would have reached

a different result . . . ." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

The PFRS provides for accidental disability retirement benefits. N.J.S.A.

43:15A-43. To qualify for such benefits, a member of the PFRS must show that

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 regular or

assigned duties . . . ." Ibid.

In Richardson v. Board of Trustees, Police & Firemen's Retirement

System, 192 N.J. 189, 212-13 (2007), the Court noted that to obtain accidental

disability benefits, the PFRS member must show:

1. that he [or she] is permanently and totally
disabled;

2. as a direct result of a traumatic event that is

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 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 [or her] usual or any
other duty.

[Ibid.]

Here, the Board did not dispute that Davis met all of the Richardson

criteria for eligibility, except for the requirement that he show his disability was

"not the result of pre-existing disease that is aggravated or accelerated by the

work . . . ." 192 N.J. at 213. The Board determined that Davis's disability did

not meet this requirement.

The Board noted that Davis had an underlying condition that was

"traumatically induced" by his skiing accident in 2005, which compromised his

knee and created a "stability issue." The Board stated that Dr. Lakin had

"reliably explained" that the 2005 injury was followed by intense pain and ACL

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reconstructive surgery, which predisposed Davis to arthritis. Dr. Lakin had

testified that the ACL surgery left Davis with "less of a cushion in the knee"

and, as a result, "the knee is never the same."

The Board further stated that the 2005 injury and the 2006 surgery

increased the chances that Davis would suffer from symptomatic arthritis in the

future, wholly aside from the minor aggravating 2015 incident. The Board

stated:

Dr. Lakin relied on a study by the [AAOS] which
showed that a year after ACL reconstructive surgery
"30% [of patients] will have some arthritis," after "10
years you will see 50% arthritic changes" and after "20
years well over 60% of the patients have arthritis in the
knee." Perhaps the most relevant aspect of the study
was the finding that an individual who undergoes a
patella tendon autograft will experience an increased
risk of anterior knee pain, kneeling pain, and arthritis –
which are exactly the symptoms Davis suffered after
the 2015 incident.

The Board stated that, under Gerba v. Board of Trustees, Public

Employees' Retirement System, 83 N.J. 174, 186 (1980), an individual does not

qualify for accidental disability benefits if the disability is caused by an

underlying condition, which has not been directly caused, but is only aggravated

or ignited by the traumatic event. The Board concluded that the evidenc e

showed that the 2015 incident merely aggravated or ignited Davis's long -

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standing pre-existing arthritis. Therefore, he is not entitled to accidental

disability retirement benefits. There is sufficient credible evidence in the record

to support the Board's findings.

Davis argues, however, that the Board erred by relying on Dr. Lakin's

testimony. He contends that Dr. Lakin's analysis constituted an inadmissible

net opinion. He asserts that Dr. Lakin failed to provide the methodology in

arriving at his opinion on the cause of his disability and failed to give the "why"

and the "wherefore" of his conclusion.

N.J.R.E. 703 "addresses the bases of opinion testimony by experts." State

v. Townsend, 186 N.J. 473, 494 (2006) (internal quotation marks and citation

omitted). The Rule permits expert opinion based on:

facts or data derived from (1) the expert's personal
observations, or (2) evidence admitted at the trial, or (3)
data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data
normally relied upon by experts in forming opinions on
the same subject.

[Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)
(quoting Townsend, 186 N.J. at 494)].

"The corollary of [Rule 703] is the net opinion rule, which forbids the

admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data." Ibid. (quoting Townsend, 186 N.J. at 494)

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(alteration in original); see Creanga v. Jardal, 185 N.J. 345, 360 (2005) ("[a]n

expert's conclusion is considered to be a 'net opinion,' and thereby inadmissible,

when it is a bare conclusion unsupported by factual evidence"). "[T]he net

opinion rule 'requires an expert to give the why and wherefore of his or her

opinion, rather than a mere conclusion.'" Townsend, 186 N.J. at 494 (quoting

Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

Here, the ALJ had found that Dr. Lakin did not provide a net opinion

because he personally examined Davis and reviewed his medical history,

including Davis's surgical and physical therapy reports. The ALJ stated the

documentation that Dr. Lakin relied on is "reasonably relied upon by experts in

his field and were also notably relied upon by Dr. Becan in reaching his

opinion."

The ALJ determined that in formulating his opinion, Dr. Lakin cited to his

training and experience, his evaluation of Davis and review of his medical

history, all of which provided the "why" and "wherefore" of Davis's injurie s

and causation for his permanent disability. The Board also found that Dr. Lakin

reliably explained his conclusion as to Davis's injury.

The record shows that Dr. Lakin's reports and analysis were not net

opinions. He did not provide "bare conclusions." He supported his opinions

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with reference to specific facts, which he obtained by reviewing Davis's

medical records and conducting a physical examination. He also relied upon

an authoritative medical text. We reject Davis's contention that Dr. Lakin was

required to provide the Board with a thorough analysis of the injuries Davis

sustained in the 2005 and 2015 accidents.

Davis further argues that the Board erred by accepting Dr. Lakin's

testimony. He contends the Board should have accepted the ALJ's finding that

Dr. Becan's testimony was more persuasive than Dr. Lakin's testimony. Again,

we disagree.

In her initial decision, the ALJ found that Dr. Becan had "convincingly

opined" that Davis would not have been physically incapacitated from his

normal work responsibilities but for the March 2015 accident. Although the

Board did not explicitly state that Dr. Lakin was more credible than Dr. Becan,

that conclusion is readily apparent from the Board's final decision.

An ALJ is required to issue an initial decision with recommended findings

of fact and conclusions of law that are "based upon sufficient, competent, and

credible evidence." ZRB, LLC v. N.J. Dep't of Env't Prot., 403 N.J. Super. 531,

561 (App. Div. 2008) (quoting N.J.S.A. 52:14B-10(c)). In its review of the

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ALJ's decision, an agency need not defer to the ALJ on its determinations of

the credibility of expert witnesses. Ibid.

An agency's decision to accept or reject an expert's testimony is

conclusive on appeal so long as that decision is reasonably made. Oceanside

Charter Sch. v. N.J. State Dep't of Educ., 418 N.J. Super. 1, 9 (App. Div. 2011)

(citing In re Application of Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div.

1976)). Here, the Board reasonably determined, from its review of the record,

that Dr. Lakin's testimony and opinion was more persuasive than that of Dr.

Becan. The Board provided sufficient reasons for its decision.

Davis argues, however, that the Board's decision is inconsistent with our

decision in Petrucelli v. Board of Trustees, Public Employees' Retirement

System, 211 N.J. Super. 280 (App. Div. 1986). In that case, the Board denied

an application for accidental disability retirement benefits under N.J.S.A.

43:15A-43, finding that the appellant was totally and permanently disabled as

a result of "pre-existing long-standing arthritis . . . ." Id. at 281.

The record showed that the appellant fell while working and sustained

injuries to his cervical or thoracic spine. Id. at 282-83. X-rays showed that he

had certain pre-existing degenerative conditions to the injured areas of the

spine, including spondylolisthesis. Id. at 283. We noted that the appellant was

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forty-nine years old at the time of the accident, and while he performed a

substantial amount of heavy labor, "he had never experienced any problems

with his back." Id. at 288.

We pointed out that when he was X-rayed following the accident, he

learned for the first time that he had a spondylolisthesis, which was p reviously

non-symptomatic. Ibid. We noted that it was "entirely speculative" whether

the appellant would have developed low-back symptoms independently of the

accident. Id. at 289. We concluded that the appellant's disability was the direct

result of the accident, not the non-symptomatic underlying condition. Ibid.

Here, the Board explained that the facts are different from those in

Petrucelli. The Board stated that Davis's 2005 accident had compromised his

knee, and Dr. Lakin had "reliably" testified that the traumatic injury and ACL

reconstruction surgery predisposed him to arthritis. Dr. Lakin had opined that

"the knee is never the same."

Moreover, Dr. Lakin had relied on the AAOS study, which found that

Davis's 2005 injury and 2006 ACL surgery significantly increased his chances

of suffering from symptomatic arthritis in the future. Based on this evidence,

it was not "entirely speculative" whether Davis would suffer from arthritic

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changes to his knee or experience the symptoms he complained of after the

2015 incident. Thus, Petrucelli does not support Davis's arguments on appeal.

We have considered the other arguments Davis has raised. We conclude

that these arguments lack sufficient merit to warrant discussion in this opinion.

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

Accordingly, we affirm the Board's January 29, 2019 determination that

Davis was not entitled to accidental disability retirement benefits under

N.J.S.A. 43:16A-7, and its decision of April 9, 2019, denying Davis's

application for reconsideration.

Affirmed.

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