The opinion
NOT FOR PUBLICATION WITHOUT THE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-0690-23
REGINA GENSEL,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
__________________________
Argued November 20, 2024 – Decided January 31, 2025
Before Judges Marczyk and Torregrossa-O'Connor.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. xx5293.
Samuel M. Gaylord argued the cause for appellant
(Szaferman Lakind Blumstein & Blader, attorneys;
Samuel M. Gaylord, on the brief).
Yi Zhu, Deputy Attorney General, argued the cause for
respondent (Matthew J. Platkin, Attorney General,
attorney; Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Yi Zhu, on the brief).
PER CURIAM
Petitioner Regina Gensel appeals from the September 21, 2023 final
agency decision of the Board of Trustees (Board) of the Public Employees'
Retirement System (PERS), adopting the Administrative Law Judge's (ALJ)
initial decision denying her request for accidental disability retirement benefits.
Based on our review of the record and applicable legal principles, we affirm.
I.
Petitioner was a senior clerk for the Atlantic County Family and
Community Development fiscal department from 2008 through May 2018 . She
claims that on August 13, 2013, she slipped and fell on water while delivering
paperwork. In May 2018, petitioner filed an application for disability retirement
seeking "accidental disability" benefits. She claimed she injured her right
shoulder, right arm, and right hand, which required surgical intervention.
The Board subsequently denied petitioner's accidental disability
application. It noted that although petitioner was "totally and permanently
disabled from the performance of her regular and assigned duties," she was not
entitled to benefits because the "total and permanent disability [was] not the
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direct result of the aforementioned incident[,] but was an aggravation of a pre -
existing condition."1
Petitioner appealed and requested the matter be transferred to the Office
of Administrative Law (OAL) for a hearing. The Board approved petitioner's
request and transferred the matter to the OAL to assign an ALJ for a contested
hearing.
The ALJ heard testimony on three dates between March 2021 and January
2023. Petitioner testified that prior to the August 2013 fall, she did not have any
trouble performing her duties at work. However, she admitted she was receiving
treatment and injections for her shoulder arthritis and bursitis prior to her fall.
She noted work became increasingly difficult after the fall, impacting her ability
to perform certain tasks, such as carrying buckets of mail, which caused pain to
her shoulder, wrist and elbow. Petitioner received physical therapy but claimed
it was too painful, so she chose to stop attending her appointments. She
recounted that Dr. Matthew Pepe, an orthopedic surgeon, recommended that she
undergo shoulder surgery. She recalled the surgery took place in May 2014.
1
The Board also determined petitioner lacked the requisite number of years of
service to qualify for ordinary disability retirement benefits. This issue is not
addressed on appeal.
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3
She never returned to work after the surgery because of complications associated
with the procedure.
Petitioner's husband, Steven Gensel, also testified on behalf of petitioner.
He testified regarding her automobile accident in 2005, when she suffered
injuries to her neck and rotator cuff. He testified she was admitted to the hospital
and learned her "right shoulder was hurt and she had a broken neck." Petitioner
underwent surgery in 2006 to treat her neck injuries.2 He testified petitioner
later had another surgery in 2009 to treat her right shoulder injuries because she
"had problem[s] healing."
Dr. David Weiss, a board-certified orthopedist, also testified on behalf of
petitioner. He concluded the August 2013 slip and fall caused a "SLAP tear,"3
which had not been diagnosed prior to the fall, and that the labral tear was the
substantial cause of petitioner's disability. Dr. Weiss based his opinion on a
January 2013 MRI without contrast, which depicted the "glenoid labrum . . .
intact." He opined the labral tear "was . . . a distinct injury as a result of the
August 2013 incident" and discussed the long-term problems a labrum tear
2
Petitioner underwent two-level cervical fusion surgery at C5-6 and C6-7 in
February 2010.
3
Dr. Weiss explained a SLAP labral tear was a superior labrum anterior to
posterior tear of the labrum.
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4
causes even after repair. He noted that Dr. Pepe performed a rotator cuff repair,
debridement of the calcific tendinopathy, debridement of the labral tear, and a
biceps tenotomy in May 2014. Petitioner also had another impingement surgery
on her shoulder in November 2016.
Dr. Weiss reviewed petitioner's medical records and compared her
condition before and the 2013 fall. He acknowledged her shoulder injuries prior
to the fall and the extensive medical treatment she received following her 2005
motor vehicle accident. He further noted petitioner underwent shoulder surgery
for that injury in 2009. Dr. Weiss stated petitioner returned to work without
restrictions and, although she continued treatment for her shoulder, performed
activities without problems until the 2013 slip and fall. He maintained
petitioner's fall at work was the "substantial cause" of her disability.
Dr. Jeffrey Lakin, a board-certified orthopedic surgeon, testified on behalf
of the PERS Board and concluded petitioner's 2013 slip and fall was not the
cause of her disability. Rather, he opined it only aggravated her pre-existing
right shoulder injuries. He testified petitioner's medical records revealed she
sustained a right shoulder injury following her 2005 motor vehicle accident and
underwent surgery in 2009, which, according to her medical records, did not
relieve her shoulder pain. He noted she continued to have "significant problems"
A-0690-23
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with her shoulder, and it was "markedly symptomatic" prior to her 2013
accident. Specifically, he testified that Dr. Richard Islinger was considering
right shoulder surgery in May 2013, including possible rotator cuff repair and
ultrasonic labral debridement. In fact, Dr. Lakin testified this was the "same
surgery" Dr. Pepe eventually performed in 2014.
Dr. Lakin also reviewed the January 2013 MRI films taken months prior
to petitioner's accident. He noted the MRI was performed without contrast, and
an MRI with contrast would have been the best way to see a labral tear, as it is
"the gold standard" to diagnose such a tear. He further reviewed the MRI with
contrast that was performed after the 2013 fall and opined:
when it's extensive labral tearing that involves the
whole labrum that's something that's been going on for
years and years. And when you read the MRI that was
done after the [2013 fall,] that [demonstrated] there was
no . . . bone contusions that would show something
acute. So, this pathology of the labrum with extensive
tearing is not due [to] a single traumatic event. It's due
[to] a long[-]standing problem with the shoulder that's
degenerative in nature.
Thus, according to Dr. Lakin, the 2013 fall "was just a minor contributing
factor." He also found it important that petitioner returned to work after the
accident "to work light duty," indicating her disability was not a direct result of
the accident.
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The ALJ affirmed the Board's decision, denying petitioner's application
for accidental disability retirement benefits. Although the ALJ generally found
both experts credible, she deemed Dr. Lakin's testimony more persuasive and
entitled to greater weight. She observed that petitioner's prior right shoulder
injury as a result of the 2005 motor vehicle accident and subsequent surgery in
2009 were pre-existing conditions aggravated by the 2013 fall. Specifically, she
noted, petitioner "was clearly symptomatic with persistent and long-standing
right shoulder pain from a previous shoulder injury sustained in a motor vehicle
accident [in] . . . 2005, and requiring surgery in 2009."
The ALJ noted petitioner continued to have significant right shoulder pain
prior to the accident which was documented in Dr. Islinger's notes as recently
as four months prior to the 2013 accident. The ALJ stated petitioner's other
treating physician records also documented she was still having significant pain
in her right shoulder with no relief from the 2009 shoulder surgery. She found
Dr. Lakin testified "quite convincingly that the labral tearing is part of a long -
standing degenerative process." She observed that in May 2013, petitioner
characterized her pain as "eight out of ten" to Dr. Islinger.
The ALJ concluded that the August 2013 fall "was not the essential
significant or substantial contributing cause of [petitioner]'s disability, but rather
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her significant pre-existing degenerative changes in her right shoulder following
her 2005 car accident and subsequent surgery in 2009 were the cause of her
disability." The ALJ found the August 13, 2013 fall "was minor in comparison"
to petitioner's pre-existing injuries.
On September 21, 2023, the Board issued its final decision and adopted
the ALJ's initial decision denying petitioner's accidental disability retirement
application. This appeal followed.
II.
Petitioner argues the Board erred in adopting the ALJ's decision and
finding her disability was an aggravation of a pre-existing condition. She
contends the evidence showed she sustained her burden and demonstrated her
disability was substantially caused by the August 2013 incident.
Our review of an administrative agency's final decision is limited. In re
Carter, 191 N.J. 474, 482 (2007). We afford "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) (quoting City of
Newark v. Nat. Res. Council, Dep't of Env't Prot., 82 N.J. 530, 539 (1980)).
Absent arbitrary, unreasonable, or capricious action, or a lack of support in the
record, the agency's final decision will be sustained. In re Herrmann, 192 N.J.
A-0690-23
8
19, 27-28 (2007). In determining whether agency action is arbitrary, capricious,
or unreasonable, we must examine:
(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 Stallworth, 208 N.J. 182, 194 (2011) (quoting
Carter, 191 N.J. at 482-83).]
We defer to the Board's interpretation of the statutes it is charged with
enforcing. Thompson v. Bd. of Trs., Tchrs.' Pension & Annuity Fund, 449 N.J.
Super. 478, 483 (App. Div. 2017) (quoting Richardson v. Bd. of Trs., Police &
Firemen's Ret. Sys., 192 N.J. 189, 196 (2007)). However, an appellate court is
"in no way bound by the agency's interpretation of a statute or its determination
of a strictly legal issue." Richardson, 192 N.J. at 196 (quoting In re Taylor, 158
N.J. 644, 658 (1999)). Also, "[a] reviewing court 'may not substitute its own
judgment for the agency's, even though the court might have reached a different
result.'" Stallworth, 208 N.J. at 194 (quoting Carter, 191 N.J. at 483).
Under N.J.S.A. 43:15A-43, a member of PERS becomes eligible for
accidental disability retirement benefits if the "employee is permanently and
A-0690-23
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totally disabled as a direct result of a traumatic event occurring during and as a
result of the performance of [their] regular or assigned duties." The Legislature
amended N.J.S.A. 43:15A-43 in 1966 to add the phrase "direct result," reflecting
the Legislature's intent "to make the granting of an accidental disability pension
more difficult." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 174, 183
(1980) (quoting Cattani v. Bd. of Trs., Police & Firemen's Ret. Sys., 69 N.J. 578,
584 (1976)).
Our Supreme Court later explained, to establish that an individual has
suffered a "traumatic event" within the meaning of N.J.S.A. 43:15A-43, a
member of the pension system must demonstrate the following to qualify for
accidental disability retirement benefits:
1. that [the member] is permanently and totally
disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to the
member (not the result of pre-existing disease
that is aggravated or accelerated by the work);
3. that the traumatic event occurred during and as a
result of the member's regular or assigned duties;
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4. that the disability was not the result of the
member's willful negligence; and
5. that the member is mentally or physically
incapacitated from performing [her] usual or any other
duty.
[Richardson, 192 N.J. at 212-13.]
The five-part test "is 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. Our Supreme Court has also instructed that
"the traumatic event need not be the sole or exclusive cause of the disability."
Gerba, 83 N.J. at 187 (emphasis omitted). Causation is satisfied when "the
traumatic event is . . . the essential significant or substantial contributing cause
of the disability . . . even though it acts in combination with an underlying
physical disease." Ibid. However, if the traumatic event merely "contributed to
the progression of th[e] [underlying] condition" by "aggravation," then it is not
the "essential significant or substantial contributing cause" of the disability. Id.
at 189, 187.
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The applicant bears the burden of proving causation and must produce
"expert evidence as is required to sustain that burden." Patterson v. Bd. of Trs.,
State Police Ret. Sys., 194 N.J. 29, 51 (2008); see also Mount v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 233 N.J. 402, 428 (2018).
Petitioner asserts the Board's decision in adopting the ALJ's opinion failed
to appropriately apply the "[s]ubstantial [c]ause" test. Petitioner relies heavily
on this court's decision in Petrucelli v. Board of Trustees, Public Employees'
Retirement System, 211 N.J. Super. 280, 288-89 (App. Div. 1986), where we
upheld an award of accidental disability benefits for a claimant whose
underlying condition was non-symptomatic until he fell down a stairwell at
work. The work injury triggered pain and symptoms that resulted in permanent
disability. Id. at 286. The claimant's past medical history was negative for back
problems, and he had enjoyed a "vigorous lifestyle" before the accident. Id. at
284.
Petitioner argues the underlying facts in Petrucelli are analogous to her
circumstances and cites to Dr. Weiss's testimony where he concludes petitioner's
2013 accident was the substantial cause of her disability. However, the record
before this court refutes the comparison with Petrucelli. Here, the ALJ found,
unlike in Petrucelli, petitioner "was clearly symptomatic with persistent and
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long-standing right shoulder pain from a previous shoulder injury ," and
petitioner had continued to complain of pain in her right shoulder as late as a
few months prior to her slip and fall. Moreover, the court found Dr. Lakin's
testimony to be credible that petitioner's 2013 accident was not the "substantial
contributing cause" of her disability. Instead, she concluded petitioner's
disability was the result of her "significant pre-existing degenerative changes in
her right shoulder" stemming from her 2005 automobile accident and subsequent
surgery.
Here, the record amply supports the ALJ's findings as adopted by the
Board that petitioner's disability was not the direct result of the 2013 slip and
fall accident. It was undisputed that petitioner was treating for injuries she
sustained in the 2005 motor vehicle accident only months prior to the 2013 slip
and fall at work. The Board's decision denying the accidental disability claim
was supported by sufficient credible evidence in the record, and it reasonably
concluded petitioner's injuries were substantially caused by petitioner's
significant pre-existing injury and degenerative condition as opined by Dr.
Lakin. Accordingly, we conclude the Board did not act arbitrarily, capriciously,
or unreasonably in denying petitioner's application.
Affirmed.
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