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NOT FOR PUBLICATION WITHOUT THE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-0997-23
ARTHUR L. DIGGS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
_________________________
Argued April 9, 2025 – Decided July 25, 2025
Before Judges Paganelli and Torregrossa-O'Connor.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. xx3243.
Timothy J. Foley argued the cause for appellant (Taylor
& Boguski, LLC, and Foley & Foley, attorneys; Gary
W. Boguski, of counsel and on the briefs).
Matthew Melton, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Donna Arons, Assistant Attorney
General, of counsel; Matthew Melton, on the brief).
PER CURIAM
Petitioner Arthur Diggs appeals from the October 19, 2023 final agency
decision of the Board of Trustees (Board) of the Public Employees ' Retirement
System (PERS), adopting the initial decision of the Administrative Law Judge
(ALJ), denying petitioner's request for accidental disability retirement benefits
(ADRB) and finding him ineligible for ordinary disability retirement benefits
(ODRB). Based on our review of the record and applicable legal principles, we
affirm.
I.
Petitioner was employed as a "laborer" for the City of Burlington from
1995 through May 2013. On December 31, 2013, petitioner filed an application
for ADRB, based upon a work-related injury on September 8, 2006. He was
"thrown onto [his] back from [a] high pressure jetter hose" and injured his back.
The Board denied petitioner's ADRB application in a written decision
dated April 23, 2016, noting that although the 2006 "event occurred during and
as a result of [his] regular or assigned duties," petitioner was not entitled to
benefits because: (1) he was "not totally and permanently disabled from the
performance of [his] regular and assigned job duties"; (2) he was "not physically
or mentally incapacitated from the performance of [his] usual or other duties
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that [his] employer [wa]s willing to offer"; (3) "the event that caused [his]
disability claim [wa]s not undesigned and unexpected"; and (4) he did not
provide evidence that his failure to file his application for ADRB within the
requisite five-year statutory limit was a result of "either delayed manifestation
of [his] disability or . . . circumstances beyond [his] control."
Petitioner appealed, and the matter was transferred to the Office of the
Administrative Law (OAL) for a hearing. An ALJ conducted a two-day hearing.
Petitioner testified that he was employed as a "[s]ewer [r]epair[er]" for "[w]ell
over [twenty] years," prior to working for six to eight months as a "[s]enior
[m]aintenance [r]epair[er]." He explained that as a "[s]ewer [r]epair[er]" he was
responsible for "check[ing] manhole[] lines, . . . [and] pump stations," lifting
manhole covers that weighed between 150-200 pounds, and climbing up and
down stairs into the manholes, approximately twenty-five feet in height.
Petitioner further testified he sustained numerous work-related injuries
over his years of employment, which he had not referenced in his ADRB
application. Specifically, he claimed that in 2005 he was involved in a motor
vehicle accident when his work truck was rear-ended and he injured his neck,
back, and knee. He was prescribed pain medication, attended weekly physical
therapy, and returned to work after approximately three months. He explained
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that, although he returned to work following the 2005 accident, he "wasn't the
same person after being hit in the back."
According to petitioner, he experienced "problems with [his] back
and . . . neck on and off" that "worsen[ed]" after sustaining another work-related
injury on September 8, 2006. He explained that he was "using a high[-]pressured
hose" to clean a dock, and while "holding the nozzle of the hose," the pressure
from the hose resulted in his being "thrown" approximately thirty-five feet in
the air, landing on concrete and injuring his back and neck. Petitioner admitted
he returned to work and did not file an ADRB claim after this incident. He listed
only this 2006 injury as the basis for his ADRB claim.
Petitioner also recounted injuring his neck and back as a result of another
work-related accident in 2010 and undergoing surgery after injuring his knee
and back in 2012 when he fell approximately four feet off a ladder. He was
cleared to return to work in "full duty" capacity in March 2013.
Finally, petitioner testified that in May 2013, he suffered a work-related
injury when his "hip . . . twisted and [he] fell [off a curb] and hit the side of [a]
trashcan." He explained that, as a result, he experienced daily pain in his neck,
"radiat[ing]" pain down his left arm, rendering him unable to "carry . . . more
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than ten . . . or [fifteen] pounds," or walk more than "a block and a half." He
took various medications to manage his pain.
Petitioner testified that following his 2013 injury, the City's Business
Administrator advised he was not permitted to return to work. The City's
medical examiner determined he could no longer perform the necessary and
required functions of his job duties.
Petitioner presented testimony from Dr. David Weiss, a board-certified
orthopedist, who reviewed petitioner's medical history and concluded that
petitioner was "totally and permanently disabled based on his cumulative
injuries" sustained during his employment. The doctor could not identify the
precise incident that was the cause of his total and permanent disability, opining,
"[I]t is really multiple traumatic events that have taken their toll
on . . . [petitioner,] precluding him from doing his work."
Dr. Jeffrey Lakin, a board-certified orthopedic surgeon, testified on behalf
of the Board and concluded petitioner was not permanently disabled as a result
of the injuries he sustained in the 2006 accident. Dr. Lakin challenged Dr.
Weiss's report, emphasizing that Dr. Weiss "focus[ed] on a lot of different body
parts besides the back and a lot of different dates of accidents," despite
petitioner's application having been confined to the September 2006 accident
A-0997-23
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resulting in back injuries. He explained that he conducted an independent
medical examination of petitioner approximately two years after petitioner filed
his application for ADRB and found "marked signs of non-organic or non-
anatomic pathology to his spine," which he considered to be "symptom
magnification, . . . malingering signs that don't make sense." Further, he
testified petitioner "had no disability, he ha[d] some strength of his spine and
his lower extremities," but "no signs of . . . objective radiculopathy."
The ALJ affirmed the Board's decision, denying petitioner's ADRB
application. Although finding petitioner's injuries from the September 2006
accident "were the result of an unexpected happening," and, therefore,
"undesigned and unexpected," the ALJ found the Board and Dr. Lakin
"appropriately considered only the September 2006" accident in assessing
petitioner's eligibility for ADRB. The ALJ determined "[p]etitioner was not
totally and permanently disabled due to" the 2006 injury. The ALJ also
concluded petitioner's 2013 application was untimely.
On June 28, 2019, the Board notified petitioner that it had considered
petitioner's exceptions to the ALJ's decision, contending "that the ALJ failed to
determine whether [petitioner wa]s eligible for an [ODRB]," and remanded the
A-0997-23
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matter to the OAL to allow the ALJ to determine whether petitioner was eligible
for ODRB.
The parties subsequently participated in a "pre-hearing conference" and
submitted briefs in support of their positions. The ALJ issued a decision on
March 3, 2020, incorporating its "findings of fact and conclusions" from its
previous initial decision and noting that petitioner neither previously sought
ODRB, nor amended his application to include a request for ODRB. The ALJ
thus questioned "whether [the OAL] ha[d] jurisdiction."
Nevertheless, having found petitioner only identified the September 2006
accident resulting in his back injury and considered both experts' conclusions
that the 2006 accident did not "render petitioner totally and permanently
disabled," the ALJ determined that "any injuries which . . . petitioner may have
incurred subsequent to the September 2006[] accident were properly not
considered in the Board's determination for ADRB and should not be considered
for ODRB." Thus, the ALJ "reaffirmed" the Board's decision denying
petitioner's application for ADRB and denied petitioner's request for ODRB.
After consideration of petitioner's exceptions to the ALJ's March 2020
decision, the Board found the ALJ "focused solely on whether [petitioner] was
rendered disabled as a direct result of the 2006 incident" when it decided
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petitioner was not eligible for ODRB. The Board concluded "[t]he ALJ
must . . . determine whether the conditions from which [petitioner] claimed to
be disabled on his application were present at the time of his application and
separation from employment." Therefore, the Board remanded the matter to the
OAL "to allow the ALJ to issue recommended findings to determine whether
[petitioner] is totally and permanently disabled and therefore eligible for an
[ODRB]."
On September 22, 2023, the ALJ issued a third written decision, again
denying petitioner's request for ODRB and reaffirming the denial of petitioner's
request for ADRB. The ALJ incorporated its "factual discussion of the
testimonial and documentary evidence, findings of fact and conclusions " from
the two prior initial decisions, and determined that "at the time of filing and
separation from employment," petitioner's "conditions from which [he] claimed
to be disabled on his [a]pplication were present." However, the ALJ found that
petitioner's claim for ODRB could not succeed as "petitioner was not physically
or mentally incapacitated from the performance of duty at the time he terminated
his employment . . . 'as a result of the disabling condition.'" The ALJ concluded
that "[b]ased upon both Dr. Lakin's and Dr. Weiss's independent evaluations, the
disabling condition identified by . . . petitioner on his [a]pplication, while
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present, would not and did not, in and of itself, physically incapacitate" him
from performing his job duties. On October 19, 2023, the Board adopted the
ALJ's decision.
II.
Petitioner appeals, contending the Board improperly denied his claim for
benefits because the ALJ's decision considered only the September 2006
accident and did not consider his additional "work[-]related injuries." He
concedes that his "permanent disability was caused by the cumulative effect of
his injuries," but contends N.J.A.C. 17:2-6.7 "does not state or require that the
disabling condition identified on the ADRB application must be the sole cause
of the applicant's inability to work."
III.
Our review of an administrative agency's final decision is limited. See 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
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record, the agency's final decision will be sustained. See In re Herrmann, 192
N.J. 19, 27-28 (2007).
We defer to the Board's interpretation of the statutes it is charged with
enforcing. See Thompson v. Bd. of Trs., Tchrs.' Pension & Annuity Fund, 449
N.J. Super. 478, 483 (App. Div. 2017). "A reviewing court 'may not substitute
its own judgment for the agency's, even though the court might have reached a
different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Carter,
191 N.J. at 483). However, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly legal issue."
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196
(2007) (quoting In re Taylor, 158 N.J. 644, 658 (1999)).
Under N.J.S.A. 43:15A-43(a), a member of PERS becomes eligible for
ADRB if the "employee is permanently and totally disabled as a direct result of
a traumatic event occurring during and as a result of the performance of [the
employee's] regular or assigned duties."
In Richardson, the Court explained, that for a member of the pension
system to establish they have suffered a "traumatic event" within the meaning
of N.J.S.A. 43:15A-43, the member must demonstrate the following to qualify
for ADRB:
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1. [T]hat [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; and
5. that the member is mentally or physically
incapacitated from performing his usual or any other
duty.
[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.
N.J.A.C. 17:2-6.7(a)(2) provides for ODRB:
(a) A member enrolled in the System before May 21,
2010, for whom an application for an accidental
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disability retirement allowance has been filed, will be
retired on an [ODRB] if the Board finds that:
....
2. The member is physically or mentally
incapacitated for the performance of duty at the time
the member terminates employment as a result of the
disabling condition identified on the Accidental
Disability retirement application . . . .
[(Emphasis added).]
Viewing with deference the Board's decision under the plain and
unambiguous language of the controlling law, we discern no abuse of discretion
in the denial of benefits. The record amply supports the ALJ's findings, as
adopted by the Board, that petitioner was not totally and permanently disabled
as a result of the September 2006 accident and was not entitled to ADRB as a
result of his untimely filing for the benefits. The expert testimony, and
plaintiff's own assertions, clearly support that conclusion. The record similarly
supported the ALJ's conclusion, adopted by the Board, that petitioner's
application did not meet the standard for ODRB. That petitioner suffered other
injuries, both prior to and in the aftermath of the 2006 accident, is
inconsequential because petitioner failed to allege those incidents in his ADRB
application as required by the plain language of N.J.A.C. 17:2-6.7(a)(2). Thus,
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we conclude the Board's ineligibility determination was not arbitrary,
capricious, or unreasonable.
To the extent not addressed, any of petitioner's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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