JOEL DAWKINS VS. BOARD OF TRUSTEES, ETC. (NEW JERSEY DEPARTMENT OF THE TREASURY)

NOT FOR PUBLICATION WITHOUT THE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-3086-19

JOEL DAWKINS,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
TEACHERS' PENSION
AND ANNUITY FUND,

Respondent-Respondent.
__________________________

Argued June 22, 2021 – Decided July 12, 2021

Before Judges Yannotti and Haas.

On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury.

Stuart Ball argued the cause for appellant.

Matthew Melton, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Matthew Melton, on the
brief).
PER CURIAM

Joel Dawkins appeals from a final determination of the Board of Trustees

(Board), Teachers' Pension and Annuity Fund (TPAF), which denied his

application for accidental disability retirement benefits pursuant to N.J.S.A.

18A:66-39(c). We affirm.

I.

Dawkins has been employed as a teacher in the Newark public school

system since 1983. In 2013, he was transferred to the Sussex Avenue

Elementary School. On January 7, 2014, Dawkins injured his back and left knee

while attempting to break up a fight between students. He returned to work in

late February 2014, but he said his injuries worsened over the spring and

summer, and he was unable to return to teaching in the fall of 2014. He applied

for medical leave and remained out of work on leave until the 2015 spring

semester, when he returned to work full duty with certain accommodations for

bending and lifting.

In December 2016, Dawkins filed an application for accidental disability

retirement benefits. He claimed that in the January 7, 2014 incident, he

sustained physical and psychological injuries that rendered him totally and

permanently disabled from the performance of his usual duties.

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 In January 2017, the Board denied the application. Dawkins 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, evidence was presented indicating that on the day of the

January 7, 2014 incident, Dawkins underwent a nerve conduction velocity

(NCV) study and an electromyography (EMG). These tests showed chronic

radiculopathy at the L5 level of the spine.

On January 29, 2014, an MRI was performed of Dawkins' left knee, which

indicated that he had a bone contusion in the tibia, with patellar subluxation,

localized chondromalacia of the patella, and medial compartment osteoarthritis.

In addition, an MRI of the lumbar spine was performed on July 14, 2016. This

MRI revealed disc bulging at the L4-L5 level of the spine and multi-level disc

herniations with nerve root involvement.

Dawkins testified that before the January 7, 2014 incident, he did not have

any problems with his lower back or knee while teaching. However, in February

2013, he had presented to Holy Name Medical Center with a complaint of knee

pain. According to the hospital's chart, Dawkins reported he had knee pain since

he was young.

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 Dawkins testified that despite these complaints, he never felt the need to

see a doctor after his February 2013 visit to the hospital. He also testified that

he never experienced any mental health issues before the January 7, 2014

incident.

When Dawkins returned to work after the incident, he was given an

assignment at Weequahic High School, where he finished the spring 2014

semester. He said that there were times when he was unable to work because of

his injuries. He also stated that in the spring and summer of 2014, his injuries

worsened and he was unable to return to teaching in the fall of 2014. He

remained out of work on medical leave until the spring of 2015.

It appears that in September 2015, Dawkins was suspended from the

Newark school system due to certain tenure charges. The matter was resolved

in October 2016, and he was ordered to return to work. He again requested

medical leave.

Dawkins treated with his primary care physicians, Dr. Champak K.

Gandhi and Dr. Angel De La Cruz. He also treated with Dr. Jonathan M. Archer,

an orthopedist; Dr. Gautam Sehgal, a neurologist; and psychologists Dr. Jeffrey

Spector and Dr. John Rotondi. They all completed pension and medical benefits

forms, which stated that Dawkins was permanently and totally disabled as a

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direct result of an accident that occurred during the performance of his regular

or assigned duties.

Dr. Archer cited Dawkins' chronic lower back pain, sciatica, numbness in

the lower extremities, and instability. Dr. Gandhi based his opinion on his

observations of the range of motion in Dawkins' back and left knee. Dr. Spector

noted that Dawkins had poor concentration caused by depression and anxiety,

and Dr. Rotondi indicated that Dawkins was suffering from major depression

and post-traumatic stress disorder.

At the hearing, Dawkins presented testimony from Dr. David Weiss, who

was qualified as an expert in orthopedics and in impairment and disability. Dr.

Weiss testified that he reviewed the MRI films of Dawkins' left knee and lumbar

spine from 2014; the EMG and NCV studies of the lower extremities; MRI films

of the lumbar spine from 2016; the X-rays of the left knee from 2017, and other

medical records and reports. He also performed a physical examination of

Dawkins.

Dr. Weiss stated that due to the impairments to Dawkins' lower back and

left knee, he would not be able to perform the job-related functions of a teacher.

He said the medical records did not indicate that Dawkins had any significant

back or knee problems before the January 2014 incident. Dr. Weiss opined that

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Dawkins' disc herniations, lumbar radiculopathy, internal derangement of the

left knee, and patellar femoral pain were direct, traumatic injuries sustained in

the January 7, 2014 incident.

Dr. Weiss further testified that during his physical exam, Dawkins

exhibited abnormal gait and ambulation; restricted range of motion; pain,

muscle spasm and tenderness in the lumbar spine; sensory deficit in the left,

lower extremity; and restricted range of motion and tenderness in the left knee.

Dr. Weiss said Dawkins had sustained significant musculoskeletal trauma to the

lumbar spine and left knee, secondary to a traumatic, work-related injury

sustained during the January 7, 2014 incident. He stated that due to the nature

of the injuries to the lumbar spine and left knee, Dawkins would not be able to

perform the duties of a teacher.

Dawkins also presented testimony from Dr. Martin A. Silverman, who was

qualified as an expert in the field of psychiatry. Dr. Silverman conducted a

psychological examination of Dawkins in April 2018. He stated that Dawkins

had experienced pain and emotional distress due to the January 7, 2014 incident.

He said Dawkins had become more depressed because he was no longer

able to teach. He noted that Dawkins had reported he also had been distressed

by his father's illness and his death in 2016.

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 Dr. Silverman testified that during his examination, he had difficulty

keeping Dawkins focused, and noted that Dawkins had to "think hard" during

cognitive testing. He described Dawkins as "down, dark, somber, and

discouraged." He said Dawkins told him he was no longer the "extraverted,

outgoing, active person" that he used to be.

Dr. Silverman stated that in formulating his opinions, he had relied upon

Dr. Spector's and Dr. Harold Goldstein's reports. He opined that Dawkins was

suffering from severe major depressive disorder, with anxiety and distress. He

said this was a serious and permanent condition, which rendered Dawkins totally

disabled. He noted that Dawkins was "very depressed."

Dr. Silverman was asked about other factors that could have affected

Dawkins' mental health, including his father's illness and death and his

suspension from his position on the tenure charges. He responded that he would

still find that Dawkins was suffering from depression based solely on the

January 7, 2014 incident.

Dr. Silverman stated that Dawkins was not able to return to work due to

severe pain and depression. He said the January 7, 2014 incident made Dawkins

vulnerable to the impact of later experiences that affected him adversely. He

opined that Dawkins' symptoms stemmed directly from the January 7, 2014

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incident. According to Dr. Silverman, Dawkins was totally and permanently

disabled and totally unable to perform the duties of a teacher.

Dr. Andrew Hutter testified on behalf of the Board as an expert in the field

of orthopedics. Dr. Hutter reviewed the MRI of Dawkins' lumbar spine and the

EMG report. He opined that any injury from an incident like the January 7, 2014

school incident should improve and not result in a "global loss of function."

Dr. Hutter also conducted a physical examination of Dawkins. He

testified that Dawkins' left knee showed generalized tenderness and limited

range of motion. He explained that the MRI of the left knee from January 2014

showed a stable knee with an intact meniscus and mild osteoarthritic changes,

which were caused by wear and tear over a long period of time. He explained

that the bone contusion seen on the MRI was a bruise or temporary injury .

Dr. Hutter opined that Dawkins was not totally and permanently disabled

as a direct result of the January 2014 incident. He found Dawkins' subjective

complaints were out of proportion to and not corroborated by the diagnostic

studies or the objective findings from the physical examination.

The ALJ issued an initial decision dated February 3, 2020. The ALJ found

Dawkins had not been forthright in his testimony and his testimony was self-

serving. The ALJ questioned the honesty of Dawkins' assertion that he did not

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need treatment after his hospital visit in February 2013, and his claim that his

knee problems were asymptomatic before the January 2014 incident.

The ALJ found that Dawkins' left knee injury was pre-existing and

symptomatic before the January 2014 incident. The ALJ noted that Dawkins

had not testified regarding the stress of caring for his ill father and his father's

death in 2016, and whether this was a contributing factor of his depression.

Dawkins also had not addressed the stress he felt from the tenure charges that

the school district filed against him.

The ALJ further found that Dr. Silverman had not presented credible

testimony regarding his alleged psychological conditions. The ALJ stated that:

[Dr.] Silverman diagnosed Dawkins with a total and
permanent severe major depressive disorder and opined
that the depression was causally connected to the 2014
incident. However, [Dr.] Silverman could not state
whether Dawkins['] depression alone prevented him
from returning to work. Nor could he rule out that
Dawkins could have been able to return to work absent
other circumstances, such as the 2016 death of his
father and the lack of support from the school district
[and the] resulting tenure charges and suspensions.
Further, [Dr.] Silverman was unable to decipher what,
if any, treatment plan Dawkins was implementing or
medications Dawkins received and might be taking or
had taken in the past for his psychological conditions.

In addition, the ALJ found that while both Dr. Weiss and Dr. Hutter had

presented credible testimony, "the scales [tipped] in favor of [Dr.] Hutter, as

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they pertain to Dawkins['] orthopedic injuries." The ALJ found that Dr. Weiss'

opinion was mostly predicated on subjective, rather than objective findings. The

ALJ therefore gave greater weight to Dr. Hutter's opinion. The ALJ concluded

that Dawkins' injuries, both orthopedic and psychological, were not totally and

permanently disabling and were not caused by the January 7, 2014 incident.

At its meeting on March 5, 2020, the Board voted to accept the ALJ's

initial decision, with modification. The Board found that Dawkins was not

totally and permanently disabled on an orthopedic basis and any physical injury

that he sustained in the January 7, 2014 incident was temporary.

The Board noted that Dawkins also was seeking accidental disability

retirement based on a mental disability, without a permanent physical injury,

and he was required to satisfy the criteria established in Patterson v. Board of

Trustees, State Police Retirement System, 194 N.J. 29, 48 (2008), applied. The

Board found that Dawkins had not carried his burden under Patterson because

the January 2014 incident "did not involve actual or threatened death or serious

injury." This appeal followed.

II.

On appeal, Dawkins argues that the Board erred by denying his

application for accidental disability retirement benefits. He contends the

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evidence clearly established the causal relationship between the January 7, 2014

incident and his disability. We do not agree.

"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.

[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. Inv'rs. Ins. Co. of Am., 65 N.J.

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

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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).

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

higher level of benefits than those provided under an ordinary disability

retirement." Patterson, 194 N.J. at 43. A member of the TPAF is eligible to be

retired "on an accidental disability allowance" 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 . . . ." N.J.S.A.

18A:66-39(c).

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

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

disability benefits, the member of the pension systems must show:

1. that he [or she] 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

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 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.]

Where, however, the member seeks accidental disability retirement based

on a permanent mental injury caused by a mental stressor without any physical

impact, the claimant also must meet the standard established in Patterson. 194

N.J. at 48. The member must show that the permanent disabling mental injury

is the direct result of a mental stressor that is
identifiable as to time and place, undesigned and
unexpected, external to the member (not the result of
pre-existing disease that is aggravated or accelerated by
the work), that occurred during and as a result of the
member's duties, and was not the result of the member's
willful negligence, . . .

[Ibid.]

Under Patterson, the disability must be the result of a "direct personal

experience of a terrifying or horror-inducing event that involves actual or

threatened death or serious injury, or a similarly serious threat to the physical

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integrity of the member or another person." Id. at 50. Events that would meet

this standard include a policeman who sees his or her partner shot; a teacher who

is held hostage by a student; and a government lawyer who is used as a shield

by a criminal defendant. Ibid.

Here, the ALJ and the Board found that Dawkins had not shown he was

suffering from a permanent disabling orthopedic injury as a result of the January

7, 2014 incident. The ALJ and the Board noted that any physical injury Dawkins

suffered in that incident was temporary. The ALJ and the Board found that Dr.

Hutter's testimony was more persuasive and entitled to greater weight than the

testimony of Dawkins' orthopedic expert, Dr. Weiss.

Dr. Hutter testified that based on his review of the MRI of Dawkins'

lumbar spine and the EMG studies, any injury Dawkins sustained from the

January 7, 2014 incident should improve and not result in a "global loss of

function." Dr. Hutter noted the MRI showed that Dawkins had a stable left knee,

with an intact meniscus and mild osteoarthritic changes caused by wear and tear

over a long period.

Dr. Hutter further testified that the bone contusion shown on the MRI of

the knee was a temporary, rather than permanent, injury. In addition, Dr. Hutter

opined that Dawkins' subjective complaints were out of proportion to and not

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corroborated by the objective findings of his physical exam or the diagnostic

studies. Thus, there is sufficient credible evidence in the record to support the

ALJ's and the Board's finding that Dawkins did not suffer a permanent disabling

injury to his back or knee in the January 2014 incident.

The record also supports the Board's finding that Dawkins had not

satisfied the criteria under Patterson for an accidental disability retirement based

on a mental injury without a permanent disabling physical injury. The record

shows that the January 7, 2014 incident was not a "terrifying or horror-inducing

event that involves actual or threatened death or serious injury, or a similarly

serious threat to the physical integrity of" Dawkins or another person. Patterson,

194 N.J. at 50.

III.

Dawkins argues, however, that the medical evidence presented at the

hearing conclusively established that he is totally and permanently disabled. He

contends the ALJ and the Board erred by failing to accept the testimony and

opinions of his treating physicians. He asserts Dr. Weiss's and Dr. Silverman's

testimony was determinative, and that Dr. Hutter's testimony supports, rather

than negates, his claim that he sustained a permanent disabling injury in the

January 7, 2014 incident.

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 We are convinced, however, that the ALJ and the Board had the discretion

to weigh the differing opinions of the experts and reasonably found Dr. Hutter's

testimony and opinions were more persuasive than those of Dr. Weiss. "[T]he

choice of accepting or rejecting testimony from witnesses resides with the

administrative agency, and so long as that choice is reasonably made it is

accorded deference on appeal." In re Young, 202 N.J. 50, 70-71 (2010) (quoting

Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001)).

Dawkins further argues that the ALJ and the Board erred by refusing to

accept Dr. Silverman's testimony regarding his psychological injuries. In her

initial decision, the ALJ explained that Dr. Silverman had relied upon two

reports in reaching his opinion. Those reports had been prepared three years

after the 2014 incident and were based on Dawkins' condition at that time. The

ALJ stated:

Neither Dawkins nor [Dr.] Silverman were able to
testify that based solely on Dawkins['] depression[,] he
was unable to return to work. Nor was it clear from the
evidence presented at [the] hearing[] whether or not
Dawkins had a treatment plan or was taking medication
post the January 7, 2014 incident in order to stabilize
his symptoms so he would be able to return to work.
Many people who are properly treated and take
medication are capable of working at their jobs,
especially those who are provided with
accommodations, as Dawkins was. In addition, [Dr.]
Silverman and Dawkins were unable to connect

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 Dawkins['] psychological condition to the January 7,
2014 incident. [Dr.] Silverman and Dawkins were both
unable to state with certainty that Dawkins[']
psychological condition actually began after the
incident and was not triggered by the stress of caring
for his ailing father who passed away in 2016 and the
stress brought on by the district pertaining to tenure
charges.

Thus, the record supports the ALJ's and the Board's finding that Dawkins

did not establish that he is totally and permanently disabled as a result of a

psychological condition. Dawkins also failed to establish that his alleged

psychological injuries were the direct result of the January 7, 2014 incident.

Dawkins also contends the ALJ and the Board did not give sufficient

weight to the disability determination of the federal Social Security

Administration (SSA), which found that Dawkins had become disabled on

August 20, 2015. Dawkins contends the SSA's decision was evidence showing

he was totally and permanently disabled. However, a disability determination

by the SSA is based on a different standard under a different program than an

accidental disability retirement. See Villanueva v. Zimmer, 431 N.J. Super. 301,

318-19 (App. Div. 2013) (noting that the lack of a meaningful adversarial

process makes the SSA's disability determinations "unreliable").

Furthermore, Dawkins acknowledged the SSA's decision had been based

in part on occurrences that were not related to the January 7, 2014 incident,

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including an injury he sustained at Thanksgiving in 2016, which apparently

caused neck and facial paralysis. The ALJ and the Board reasonably refused to

consider the SSA's disability determination in determining whether Dawkins

was entitled to accidental disability retirement benefits under N.J.S.A. 18A:66-

39(c).

In addition, Dawkins contends: (1) the Board erred by applying the

Patterson standard to him because he allegedly sustained serious physical

injuries in the January 7, 2014 incident; (2) there were no external circumstances

that broke the causal link between the January 7, 2014 incident and his disabling

injuries; (3) the ALJ and the Board improperly discounted the evidence of his

psychiatric injuries; and (4) the ALJ and the Board placed undue significance

on the worsening of his back injuries.

These arguments lack sufficient merit to warrant discussion in a written

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

Affirmed.

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