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NOT FOR PUBLICATION WITHOUT THE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-0264-23
DENEEN A. MATANI,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
Argued March 12, 2025 – Decided June 2, 2025
Before Judges Currier and Paganelli.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. xx0276.
Stuart J. Alterman argued the cause for appellant
(Alterman & Associates, LLC, attorneys; Stuart J.
Alterman and Arthur J. Murray, on the briefs).
Thomas R. Hower argued the cause for respondent
(Gebhardt & Kiefer, PC, attorneys; Leslie A. Parikh
and Linda M. Brown, on the brief).
PER CURIAM
Petitioner appeals from defendant's, Board of Trustees of the Police and
Firemen's Retirement System (the Board), August 18, 2023 final administrative
determination denying her application for Accidental Disability Retirement
Benefits (ADRB). Because petitioner has not demonstrated she was totally and
permanently disabled from the particular incident, we affirm.
Petitioner's application for ADRB arises out of an incident that occurred
in December 2012 when she was bitten by a dog while working as a police
officer for the Atlantic City Police Department. She had been employed by the
Department since 1992.
On December 17, 2012, petitioner was "dispatched to [a] call for crowd
control for [an] officer involved shooting." She described it as a "riotous
situation." She explained that as she moved out of the way of a K-9 handler, the
K-9 "dog latched onto [her] arm and [she] went down to the ground and wiggled
underneath the car with the dog on [her] arm." The bite resulted in five puncture
wounds to her right forearm and wrist. She was hospitalized for several days.
Petitioner returned to work on light duty at the end of February 2013 and
returned to full duty, without restrictions, in March. Petitioner was promoted to
sergeant in 2014. Petitioner testified she stopped working again in December
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2014 because her doctor "put [her] out on stress." She said the stress arose from
the dog bite but also from personal issues including divorce proceedings.
Petitioner was recertified in the use of firearms approximately four times
between March 2013 and December 2014. She testified an officer must be
certified to use a firearm with both hands. Petitioner also stated she owns a
personal firearm—a semi-automatic pistol.
The record is not clear but there are references to petitioner returning to
work on a light or restricted duty at some point. Her last day of work was August
31, 2016.
In July 2016, petitioner filed an application for ADRB arising from the
December 17, 2012 incident. In May 2017, the Medical Review Board (MRB)
found petitioner was "totally and permanently disabled and [wa]s not able to
perform the duties of [her] job." The MRB found the disability was "not a direct
result of the [December 17, 2012] accident[]," but rather petitioner was "totally
and permanently disabled due to generalized anxiety disorder." The MRB based
its decision on an "[i]ndependent [m]edical [e]xamination," "[m]edical records
submitted by the member or employer," and "[t]he member's current job
description or title."
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Thereafter, the Board denied petitioner's application for ADRB. The
Board determined petitioner's "psychological disability is not a direct result of
the incident described; rather . . . [it] is the result of numerous personal, family,
and work issues." The Board granted petitioner ordinary disability retirement
benefits (ORDB) "retroactive to [her] retirement effective date of September 1,
2016."
Following petitioner's appeal, a hearing was conducted before an
Administrative Law Judge (ALJ) over several days in February 2022. Petitioner
presented Dr. Jeffrey Boxman as her medical expert witness.
Dr. Boxman testified he is a neurologist, licensed in New Jersey in 1993,
and in private practice since 1998. He stated he first saw petitioner in June 2015.
Petitioner complained of weakness and pain in her "distal [right] forearm, the
[right] wrist and the medial fingers."
Dr. Boxman testified that the results of a nerve conduction study and
electromyography (EMG) were "abnormal." However, when he conducted the
testing again in January 2016, the results were "normal." He explained "this
time there was normalcy of the . . . ulnar dorsal cutaneous nerve."
Dr. Boxman stated that he conducted a third EMG, at the request of
petitioner's counsel in 2018. The testing showed an ulnar dorsal cutaneous
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branch nerve injury and signs of carpal tunnel. He explained carpal tunnel is a
common condition in a person's wrist and fingers "depending on [a person's]
occupation or just some medical issues." Dr. Boxman's diagnosis was that the
dog bite injured the muscle that controls the fingers and hand. He based his
causality opinion on the history provided to him.
Dr. Boxman also found petitioner has a tremor resulting from the dog bite.
He did not believe petitioner had "any chance of . . . regaining any further
improvement." He found she was totally and permanently disabled from being
a law enforcement officer.
Dr. Steven Lomazow testified for the Board. Dr. Lomazow is board
certified in neurology and has been in private practice for forty-two years.
Dr. Lomazow stated he examined petitioner in January 2017, and
reviewed records from numerous physicians as well as the EMG testing. The
doctor testified that petitioner complained to him of hypertension, migraine,
cramping of her hand and inability to feel her hand. He examined her right hand
and made no organic findings. There was no atrophy or muscular abnormalities.
Dr. Lomazow stated petitioner had "psychologically induced findings of alleged
abnormalities with her hand." Dr. Lomazow concluded that petitioner was not
disabled.
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Dr. Lomazow reviewed medical records from Dr. Dirk Skinner, a
neurologist, from March 2013. He noted Dr. Skinner also found that there was
nothing organic or "physiologic due to some sort of injury." Dr. Skinner cleared
petitioner to return to work on March 13, 2013.
When questioned about Dr. Boxman's readings of the EMG testing, Dr.
Lomazow stated:
[Dr.] Boxman alleged there's a right median nerve
entrapment. I don't see that on his worksheet. I don't
know where he got that from. And this is the only time
that anybody's ever mentioned a median issue. And
there is no median issue here. . . . I have no idea why
there's a disparity between the worksheet, which is
normal and his allegation of a mild median problem.
But there's no evidence this woman has any problem
with her median nerve.
Dr. Lomazow further testified that the EMG results did not support Dr.
Boxman's conclusion that petitioner is disabled. The doctor said there was no
objective medical evidence of a disability to prevent petitioner from performing
her job as a police officer. Dr. Lomazow also did not see a tremor.
The ALJ issued his initial decision on July 18, 2023. He found petitioner
was an "honest witness," although she was "somewhat evasive on cross-
examination." The ALJ adopted and accepted Dr. Lomazow's opinion that
petitioner was not permanently and totally disabled. He found Dr. Lomazow's
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opinion was more persuasive than that proffered by Dr. Boxman. The ALJ
stated:
Petitioner did not stop working in 2014 as a result of
neurological diagnoses, but rather stopped working at
the direction of her primary care doctor based on issues
she was having with stress; petitioner is currently
receiving ODRB based on stress; petitioner passed all
her firearms tests and received all her firearms
certifications, petitioner continued to own a personal
weapon after ending h[er] employment with Atlantic
City.
There was no right median nerve entrapment;
there were no positive neurological findings due to an
injury to petitioner's right hand, there was no muscle
atrophy in petitioner's right hand nor any muscle
abnormalities; there was no defective sensation in the
cutaneous distribution of the ulnar on the right side,
there were no relevant abnormalities in petitioner's
ulnar nerve; there was no significant right ulnar
mononeuropathy, motor neuropathy or neurological
impairment, petitioner's symptoms were non-
physiologic.
The ALJ found that petitioner "failed to meet, by a preponderance of
credible evidence, her burden in demonstrating that the [i]ncident of December
1[7], 201[2], caused her to be totally and permanently neurologically disabled
from being able to perform her assigned job duties as an Atlantic City Police
Sergeant."
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On August 18, 2023, the Board notified petitioner that it adopted the ALJ's
decision, affirming the Board's denial of petitioner's application for ADRB.
On appeal, petitioner alleges she is entitled to ADRB because the ALJ
erred in accepting Dr. Lomazow's net opinion over that of Dr. Boxman and the
ALJ was mistaken that petitioner did not file a workers' compensation claim for
physical injuries after the 2012 dog bite incident.
Our review of quasi-judicial agency determinations is limited. Allstars
Auto. Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018).
"[C]ourts 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). We are "in no way bound by [an]
agency's interpretation of a statute or its determination of a strictly legal issue."
Ibid. (quoting In re Taylor, 158 N.J. 644, 658 (1999)).
We review an agency decision "under an arbitrary and capricious
standard," Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465, 475
(2019), meaning we will sustain decisions "unless there is a clear showing that
it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record." Saccone v. Bd. of Trs,. Police & Firemen's Ret. Sys., 219 N.J. 369, 380
(2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,
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27 (2011)). The party challenging the administrative action bears the burden of
making that showing. Lavezzi v. State, 219 N.J. 163, 171 (2014).
The court's role in reviewing an administrative appeal is to determine:
(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.
[Allstars Auto. Grp., Inc., 234 N.J. at 157 (quoting In
re Stallworth, 208 N.J. 182, 194 (2011)).]
We begin with petitioner's contentions regarding the ALJ's errors. In his
initial decision, the ALJ recounted petitioner's testimony and noted she "filed a
workers' compensation claim for injuries to her right forearm and wrist." Later
in the opinion, the ALJ stated petitioner "did not file for workers' compensation
due to physical injuries, but rather emotional issues, and ultimately returned to
work and was promoted." This was a misstatement. Nevertheless, it is clear the
ALJ was aware of the basis for the workers' compensation claim as referenced
above. Petitioner was questioned about the workers' compensation petition
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9
several times and she reiterated the claim was solely for her physical injuries.
There is no reason to remand, as petitioner suggests, to correct the record.
In her closing brief submitted to the ALJ, petitioner raised for the first
time that Dr. Lomazow's opinion was a net opinion and inadmissible. The ALJ
stated:
Petitioner's first point and primary argument was that
Dr. Lomazow's opinion should be ignored for being a
net opinion. I did not find this to be a compelling
argument. Dr. Lomazow did not merely issue
conclusions so as to constitute a net opinion. Rather,
he was admitted as an expert in neurology, based on his
Curriculum Vitae . . . , and pursuant to a brief voir dire
on the second hearing date, and therefore demonstrated
sufficient specific scientific expertise to offer expert
opinions and conclusions on neurologic issues.
Further, he conducted a neurological examination on
January 13, 2017, which he described as a thirty-minute
physical examination where he attempted to determine
the mental state of the patient, reviewed twenty-seven
neurological bullet points, tested twelve nerves that go
to the brain, checked the patient's reflexes, and
conducted an examination of petitioner's right hand.
Additionally, Dr. Lomazow reviewed petitioner's
medical records, including three EMG/nerve
conduction studies from Dr. Boxman, and the reports of
[additional doctors]. I therefore FIND that the
conclusions set forth in Dr. Lomazow's report . . . were
not net opinions.
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"[N.J.R.E.] 703 addresses the 'bases of opinion testimony by experts.'"
State v. Townsend, 186 N.J. 473, 494 (2006) (quoting R. 703). Expert opinion
is allowed if it is 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.
[Ibid. (quoting Biunno, Weisbard & Zegas, N.J. Rules
of Evidence, cmt. 1 on N.J.R.E. 703 (2005)).]
"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. "[T]he net opinion rule 'requires an expert
to give the why and wherefore of his or her opinion, rather than a mere
conclusion.'" Ibid. (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401
(App. Div. 2002)).
Dr. Lomazow is a board-certified neurologist. He performed his own
neurological evaluation of petitioner in addition to reviewing the records of
multiple other doctors and the diagnostic testing. Dr. Lomazow explained the
reasons supporting his conclusion that petitioner did not suffer a neurological
injury in both his written report and during his testimony. Dr. Lomazow's expert
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testimony was not a net opinion and the ALJ did not err in allowing Dr.
Lomazow to testify as an expert witness.
We similarly discern no reason to disturb the ALJ's determination,
adopted by the Board, to accept Dr. Lomazow's opinion over that of Dr.
Boxman.
"[T]he [factual] findings of an ALJ 'are considered binding on appeal
when supported by adequate, substantial and credible evidence.'" Oceanside
Charter Sch. v. N.J. State Dep't of Educ. Off. of Compliance Investigation, 418
N.J. Super. 1, 9 (App. Div. 2011) (quoting In re Taylor, 158 N.J. at 656). "[T]he
choice of accepting or rejecting the testimony of witnesses rests with the
administrative agency, and where such choice is reasonably made, it is
conclusive on appeal." Renan Realty Corp. v. State, Dep't of Cmty. Affs.,
Bureau of Hous. Inspection, 182 N.J. Super. 415, 421 (App. Div. 1981).
Petitioner has not demonstrated that the ALJ failed to act reasonably in
determining Dr. Boxman's "conclusions and the reasoning underlying those
conclusions [were] overborne" by Dr. Lomazow's conclusions. The ALJ
supported his reasoning for his determination.
An application for ADRB is governed by N.J.S.A. 43:16A-7(a)(1), which
states,
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Upon the written application by a member in service,
by one acting in his behalf or by his employer any
member may be retired on an accidental disability
retirement allowance; provided, that the medical board,
after a medical examination of such member, shall
certify that 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 and that such disability was not the
result of the member's willful negligence and that such
member is mentally or physically incapacitated for the
performance of his usual duty and of any other
available duty in the department which his employer is
willing to assign to him.
In Richardson, our Supreme Court set forth the following five-prong
standard for establishing a claim for ADRB, stating that a member must show:
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;
4. that the disability was not the result of the member's
willful negligence; an[d]
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5. that the member is mentally or physically
incapacitated from performing his usual or any other
duty.
[192 N.J. at 212-13.]
The ALJ concluded, and the Board adopted the opinion, that petitioner did
not prove that she was permanently and totally disabled from the 2012 dog bite
incident to establish a claim for ADRB. These determinations were supported
by sufficient credible evidence in the record.
Affirmed.
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