TERRENCE CROWDER 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NOT FOR PUBLICATION WITHOUT THE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-0094-17T4

TERRENCE CROWDER,1

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent-Respondent.

_____________________________

Argued December 6, 2018 – Decided May 10, 2019

Before Judges Simonelli and DeAlmeida.

On appeal from the Board of Trustees of the Police and

Firemen's Retirement System, Department of the

Treasury, PFRS No. 3-10-38667.

Catherine M. Elston argued the cause for appellant (C.

Elston & Associates, LLC, attorneys; Catherine M.

Elston, of counsel and on the briefs).

1

Referenced in the record also as Terence Andre Crowder, Terrance Crowder

and Terence Crowder.

Christopher R. Meyer, Deputy Attorney General,

argued the cause for respondent (Gurbir S. Grewal,

Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel; Christina Cella,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant Terrence Crowder appeals from the August 15, 2017 final

agency decision of respondent Board of Trustees (Board), Police and Firemen's

Retirement System (PFRS), which adopted the initial decision of an

Administrative Law Judge (ALJ) affirming the Board's September 9, 2014

decision denying Crowder's application for accidental disability retirement

benefits. Crowder also appeals from the Board's May 9, 2014 decision reversing

the ALJ's grant of his motion to bar the State's expert. We affirm.

I.

Crowder worked for the City of Camden Fire Department for twenty-five

years, ultimately serving as a Deputy Chief from 2003 to 2008. On April 23,

2008, while on duty, Crowder walked into the bay area of the fire department to

talk to firefighter Luis Sanchez and Captain Howard Jones. As Crowder sat

down on a plastic chair, the chair "exploded," breaking into several pieces and

causing him to fall approximately two to three feet onto the concrete floor,

hitting his lower back and tailbone (the 2008 incident). After Crowder fell,

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Sanchez and Jones lifted him off the floor. Crowder felt a "very sharp pain" in

his lower back and was transported to the hospital. It was subsequently

determined that Crowder could no longer perform the duties of a firefighter. On

February 4, 2009, he applied for accidental disability retirement benefits based

solely on the 2008 incident.

The Board does not dispute that the 2008 incident was a traumatic event

within the meaning of N.J.S.A. 43:16A-7 and that Crowder is permanently and

totally disabled from the performance of his regular and assigned duties. In

addition, it is undisputed that Crowder suffered work-related injuries to his

lower back in 1986, 1987, and 1995, and had a preexisting degenerative

condition in his lumbar spine dating back to 1996.2 The Board determined that

Crowder's disability was not a direct result of the 2008 incident, but rather was

the result of a preexisting disease alone or a preexisting disease that was

aggravated or accelerated by the work effort. Thus, the Board denied Crowder's

2

A July 8, 1996 MRI of Crowder's lumbar spine showed he had disc desiccation

and degeneration from L3-L4 though L5-S1, a disc bulge at L4-L5, and disc

herniation at L3-L4. A July 13, 2005 MRI showed Crowder had disc

desiccation, a disc bulge at L3-L4 and L4-L5, and a disc herniation at L5-S1.

The MRI report also indicated that "[t]he findings are worse when compared to

prior [MRI]." A June 9, 2008 MRI showed degenerative change at L3-L4

through L5-S1 with bulging and degenerative annular tears at multiple levels.

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application for accidental disability retirement benefits and granted him

ordinary disability retirement benefits.

Crowder appealed and the matter was transferred to the Office of

Administrative Law (OAL) for a hearing. The ALJ had to determine whether

Crowder's disability was a direct result of the 2008 incident. The ALJ gave

greater weight to the testimony of Crowder's orthopedic expert, Arthur H. Tiger,

M.D., than the testimony of the Board's expert. Tiger testified that all of

Crowder's MRIs showed significant worsening of his preexisting degenerative

condition, Crowder's level of pain and discomfort had increased, and there was

"a great deal more pathology present." Tiger admitted that the 2008 incident

aggravated Crowder's preexisting degenerative condition, causing his disability.

He concluded that the 2008 incident was the "tipping point" that led to Crowder's

inability to perform his duties as a firefighter.

The ALJ also considered Crowder's testimony. Crowder testified he was

still able to perform his regular and assigned duties after the prior incidents.

However, he admitted: "I was always having . . . soreness and problems with my

back, stiffness and there were times I couldn't get up, you know, it was constant,

ever since the first . . . injury that I fell [in 1986] I was always having

problems[.]" He also testified he received chiropractic treatment two to three

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times a week for more than twenty-six years, and his chiropractor was still

treating him on a regular basis at the time of the OAL hearing. When asked if

he ever had to miss work prior the 2008 incident due to his lower back, Crowder

replied "[y]eah, I always took sick days, I was always off sick. I used the

average of between [eighteen] and [twenty] sick days per year. I would call in

sick and say, 'Back spasms, you know, I'm unable to work.'" He further testified,

"I was constantly always in back pain, you know, there were some days I could

function and some days I couldn't[.]" Further, as a result of the prior incidents,

Crowder was found partially permanently disabled by workers' compensation

judgments.

Despite giving greater weight to Tiger's testimony, the ALJ found the

2008 incident was not the essential significant or substantial contributing cause

of Crowder's disability. The ALJ reasoned:

It is clear from the record that [Crowder's] pre-existing

condition was longstanding and severe. . . . The mere

fact that [Crowder] was unable to return to work after

the . . . 2008 incident does not render the incident the

substantial contributing cause of his disability.

Even Dr. Tiger acknowledged that [the 2008

incident] had aggravated a prior degenerative condition

in [Crowder's] lower back. . . . Signs of degenerative

changes were present as early as 1996.

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The ALJ concluded that Crowder's preexisting degenerative condition, which

was aggravated by the 2008 incident, was the essential significant or substantial

contributing cause of his disability, and denied his appeal of the Board's denial

of his application for accidental disability retirement benefits. The Board

adopted the ALJ's initial decision.

II.

Crowder argues that the Board's decision was contrary to Richardson v.

Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212 (2007), which

Crowder incorrectly claims provides for accidental disability retirement benefits

when a traumatic event combines with a preexisting condition. Crowder also

argues the medical evidence established that the 2008 incident was the cause of

his total and permanent disability.

Our review of the Board's decision is limited. Russo v. Bd. of Trs., Police

& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). We will not disturb the Board's

decision absent "a clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." Ibid. (quoting In re Herrmann, 192

N.J. 19, 27-28 (2007)). We "may not substitute [our] own judgment for the

agency's, even though [we] might have reached a different result." In re

Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483

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6

(2007)). "This is particularly true when the issue under review is directed to the

agency's special 'expertise and superior knowledge of a particular field.'" Id. at

195 (quoting Herrmann, 192 N.J. at 28). Furthermore, "[i]t is settled that '[a]n

administrative agency's interpretation of statutes and regulations within its

implementing and enforcing responsibility is ordinarily entitled to our

deference.'" E.S v. Div. of Med. Assistance & Health Servs., 412 N.J. Super.

340, 355 (App. Div. 2010) (second alteration in original) (quoting Wnuck v. N.J.

Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)).

"Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div.

of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)

(quoting Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.

2001)). "Statutory and regulatory construction is a purely legal issue subject to

de novo review." Ibid. Applying the above standards, we discern no reason to

reverse.

Accidental disability retirement benefits under the PFRS are governed by

N.J.S.A. 43:16A-7, which provides in part:

any member may be retired on an accidental disability

retirement allowance; provided . . . 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

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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.

[(Emphasis added).]

In Richardson, 192 N.J. at 212, our Supreme Court clarified the meaning

of the term "traumatic event," stating that "a traumatic event is essentially the

same as what we historically understood an accident to be — an unexpected

external happening that directly causes injury and is not the result of pre-existing

disease alone or in combination with work effort." The Court found that in using

the term "traumatic event," the Legislature intended "to excise disabilities that

result from pre-existing disease alone or in combination with work effort from

the sweep of the accidental disability statutes and to continue to allow recovery

for the kinds of unexpected injurious events that had long been called

'accidents.'" Id. at 192. The Court noted that the Legislature "intended to make

clear that a pre-existing condition that, in connection with work effort, caused

injury would not qualify as an accident" under the statute. Id. at 199. Thus, "the

Legislature sought to prohibit the grant of accidental disability benefits to a

member disabled by a pre-existing condition, alone or in combination with work

effort[.]" Id. at 210.

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In light of this Legislative intent, the Court returned to the views adopted

in the strand of cases that followed Cattani v. Bd. of Trs., Police & Firemen's

Ret. Sys., 69 N.J. 578, 584 (1976). Richardson, 192 N.J. at 212; see also Gerba

v. Bd. of Trs. of Pub. Emps. Ret. Sys., 83 N.J. 174, 183 (1980); Korelnia v. Bd.

of Trs. of Pub. Emps. Ret. Sys., 83 N.J. 163, 170 (1980). That strand of cases,

which would now control the evaluation of accidental disability retirement

applications, "reaffirm[ed] that a traumatic event can occur during usual work

effort, but that work effort itself or combined with pre-existing disease cannot

be the traumatic event." Richardson, 192 N.J. at 211. Thus, by returning to the

interpretation derived in those cases, the Court made it clear that "injury

resulting from a member's pre-existing disease, even if combined with the

exertions of work effort, was not an external force and thus not a traumatic

event." Id. at 212.

The Court therefore established a framework for evaluating applications

for accidental disability retirement, finding that to obtain accidental disability

benefits, an employee must prove:

1. that he is permanently and totally disabled;

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

a. identifiable as to time and place,

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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.

[Id. at 212-13 (emphasis added).]

The Court has clarified the "direct result" requirement throughout the

Cattani strand of cases, noting that although the traumatic event need not be the

sole or exclusive cause of the disability, it must be "the essential significant or

the substantial contributing cause of the resultant disability." Gerba, 83 N.J. at

186; Korelnia, 83 N.J. at 170. Thus, a traumatic event that acts in combination

with an underlying preexisting condition may satisfy the "direct result"

requirement "[a]s long as the traumatic event is the direct cause . . . of the

disability[.]" Gerba, 83 N.J. at 187. However, the Court held:

Where there exists an underlying condition such as

osteoarthritis which itself has not been directly caused,

but is only aggravated or ignited, by the trauma, then

the resulting disability is, in statutory parlance,

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"ordinary" rather than "accidental" and gives rise to

"ordinary" pension benefits. Hence, in terms of a

traumatic event equating with a statutorily sufficient

medical cause of an "accidental" disability, what is now

required . . . is a traumatic event that constitutes the

essential significant or the substantial contributing

cause of the resultant disability.

[Id. at 186.]

This requirement was "intended to impose a stringent test of medical causation."

Korelnia, 83 N.J. at 170. Thus, an applicant must establish a direct connection

between the traumatic event and his current disability by a "preponderance of

the believable evidence." Russo v. Teachers' Pension & Annuity Fund, 62 N.J.

142, 147 (1973).

Crowder argues the Board and ALJ failed to acknowledge that accidental

disability benefits are appropriate where the disability was caused by a traumatic

event combined with a preexisting condition. In doing so, Crowder correctly

notes that a traumatic event need not be the sole or exclusive cause of the

disability. However, Crowder incorrectly argues that the traumatic event also

need not be the significant or substantial cause of his disability. This argument

is directly refuted by governing case law, which provides that although "the

traumatic event need not be the sole or exclusive cause of the disability[,]" it

must be "the direct cause, i.e., the essential significant or substantial

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contributing cause of the disability[.]" Gerba, 83 N.J. at 187; see also Korelnia,

83 N.J. at 170 ("[T]he trauma, while it need not be the sole or exclusive causative

agent, must at the very least be the essential significant or the substantial

contributing cause of the disability.").

The 2008 incident was not the direct cause of Crowder's disability.

Rather, as the ALJ correctly found, Crowder's preexisting degenerative

condition, which was aggravated by the 2008 incident, was the essential

significant or the substantial contributing cause of his disability. Thus, the

Board did not err in adopting the ALJ's decision. The ALJ properly applied the

Legislative intent, as noted in Richardson and the Cattani strand of cases, and

reached her conclusion based on the evidence.

In challenging the Board's and ALJ's decisions, Crowder relies on prior

Board decisions granting accidental disability retirement benefits to employees

who suffered traumatic events which, combined with a preexisting condition,

resulted in their total and permanent disability, specifically, Titus v. Public

Employees' Retirement System, 2016 N.J. AGEN LEXIS 1093 (Nov. 17, 2016);

Diaz v. Board of Trustees, Public Employee's Retirement System, 2014 N.J.

AGEN LEXIS 198 (May 1, 2014); Goodman v. Teachers' Pension & Annuity

Fund, 2013 N.J. AGEN LEXIS 153 (Apr. 23, 2013); Cominsky v. Board of

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Trustees of the Teachers' Pension & Annuity Fund, 2013 N.J. AGEN LEXIS 54

(Mar. 14, 2013); and Erbetta v. Public Employees' Retirement System, 2012 N.J.

AGEN LEXIS 140 (Mar. 12, 2012). However, these administrative decisions

do not bind future agency decisions or this court. See Lubliner v. Bd. of

Alcoholic Beverage Control, 33 N.J. 428, 443 (1960).

Moreover, the decisions are distinguishable. In Titus, Diaz, Cominsky,

and Erbetta, the Board determined that the petitioners' disabilities were the

direct result of the traumatic events, as the petitioners were asymptomatic prior

to the traumatic events and had not had any issues or injuries to the areas of

concern before their accidents. In Goodman, although the petitioner was not

asymptomatic prior to the incident, she had no restrictions in her activities of

daily living prior to the accident.

Crowder suffered multiple work-related injuries to his lumbar spine and

exhibited chronic symptoms for several years prior to the 2008 incident. His

testimony confirms that, despite claiming he performed all his duties and was

physically active prior to the 2008 incident, he had clearly suffered from severe

back pain and spasms for many years prior thereto. Furthermore, his symptoms

clearly interfered with his work, as evidenced by his testimony that he had to

take numerous sick days each year as a result of those symptoms.

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We are satisfied that the Board's decision to deny accidental disability

retirement benefits was not arbitrary, capricious or unreasonable and was amply

supported by the record. Crowder failed to prove that the 2008 incident was the

essential significant or the substantial contributing cause of his disability. He,

thus, is entitled only to ordinary disability retirement benefits. See Gerba, 83

N.J. at 186.

III.

During the OAL proceedings, Crowder sought to claim that his disability

was the direct result of the prior 1986, 1987 and 1995 incidents, as well as the

2008 incident. Because the prior incidents occurred more than five years before

Crowder submitted his application, and because his application only listed the

2008 incident, the Board advised Crowder that he must submit medical

documentation showing there was a delayed manifestation of his disability or

that he did not file his application within the five-year period due to

circumstances beyond his control. Crowder did not submit the required medical

documentation, and his attorney conceded before the ALJ that "[w]e don't have

medical evidence of delayed manifestation[.]"

Crowder nevertheless argues the Board should have considered the

cumulative effect of work-related traumatic events in causing his disability,

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including the prior incidents, and granted him accidental disability retirement

benefits. We disagree.

Separate, cumulative work-related injuries may constitute traumatic

events for the purpose of awarding accidental disability retirement benefits. See

Gerba, 83 N.J. at 188. Accordingly,

where . . . the evidence demonstrates that the member's

permanent and total disability has been directly brought

on by a combination of traumatic events occurring

during and as a result of his performance of his regular

or assigned duties . . . the statutory criteria are satisfied

even though the precise contributory role of each event

separately may be uncertain.

[Toma v. State, Bd. of Trs., Police & Firemen's Ret.

Sys., 172 N.J. Super. 76, 85 (App. Div. 1980).]

However, an application for accidental disability retirement benefits

"must be filed within five years of the original traumatic event." N.J.S.A.

43:16A-7(1) (emphasis added). The Board

may consider an application filed after the five-year

period if it can be factually demonstrated to the

satisfaction of the [Board] that the disability is due to

the accident and the filing was not accomplished within

the five-year period due to a delayed manifestation of

the disability or to other circumstances beyond the

control of the member.

[Ibid. (emphasis added).]

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In order to establish a delayed manifestation, the applicant must prove that "the

disability is not manifested until more than five . . . years after the accident."

Hayes v. Bd. of Trs. of Police & Firemen's Ret. Sys., 421 N.J. Super. 43, 55

(App. Div. 2011) (quoting In re Crimaldi, 396 N.J. Super. 599, 605 (App. Div.

2007)). If the employee is able to demonstrate a delayed manifestation, the

application must be filed within a reasonable time after the ph ysical

manifestation of the disability. See Crimaldi, 396 N.J. Super. at 606.

Assuming the prior incidents constituted traumatic events within the

meaning of N.J.S.A. 43:16A-7, Crowder did not file an application for

accidental disability retirement benefits within five years of the original

incident in 1986, or even within five years of the 1987 and 1995 incidents. He

also failed to demonstrate that he did not file within the five-year period due to

a delayed manifestation of the disability, as mandated by N.J.S.A. 43:16A-7(1).

To the contrary, Crowder conceded he has no evidence of delayed manifestation

and gave no reason why he did not file within the five-year period. Thus, the

Board was not required to consider the prior incidents, or their cumulative

effect on Crowder's disability.

Nevertheless, the record does not support Crowder's claim that the

cumulative effect of the prior incidents directly caused his disability. Although

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Tiger testified that the prior incidents could have accelerated the degenerative

process in Crowder's lumbar spine, he gave no opinion as to whether they

actually did so. Tiger had reviewed Crowder's MRI reports and workers'

compensation records, but did not reach any conclusions regarding the effect,

individually or cumulatively, of the prior incidents on Crowder's disability.

Further, Tiger's testimony that any of the prior incidents, individually, could

have accelerated a degenerative condition in Crowder's lumbar spine does not

support Crowder's claim that the combination of the events caused Crowder's

disability. In fact, Tiger's testimony refutes Crowder's argument by suggesting

that the prior incidents could have aggravated his preexisting degenerative

condition.

As previously discussed, accidental disability benefits are not available to

an individual who has suffered a "disability resulting from the aggravation or

acceleration of a preexisting disease even though unusual or excessive work

effort is involved." Cattani, 69 N.J. at 585; see also Richardson, 192 N.J. at 210

(accidental disability benefits are not permitted if a member is "disabled by a

pre-existing condition, alone or in combination with work effort"). Thus, ev en

if Tiger had testified that the prior incidents, in combination with the 2008

incident, aggravated Crowder's degenerative condition, that conclusion would

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not have qualified Crowder for accidental disability benefits. Furthermore, such

an inference is not appropriate in this matter, as Tiger's reports and testimony

make no mention of the cumulative effects, if any, of the prior incidents on

Crowder's disability.

In addition, there is no other medical evidence in the record that indicates

a combination of the prior incidents and the 2008 incident caused Crowder's

disability. Thus, even if the Board was required to consider the prior incidents,

there is no evidence to support Crowder's claim that his "disability has been

directly brought on by a combination of traumatic events occurring during and

as a result of his performance of his regular or assigned duties[.]" See Toma,

172 N.J. Super. at 85.

IV.

The OAL proceeding was substantially delayed following multiple

adjournment requests and requests for additional hearing dates by both parties .

During the proceedings, the Board's expert withdrew, requiring the State to

obtain a new expert and requiring Crowder to undergo a third medical

evaluation. The ALJ entered an order on April 3, 2014, barring the State's expert

due to the significant delays and because requiring Crowder to undergo a third

evaluation was "burdensome and inappropriate."

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The Board subsequently reversed the April 3, 2014 order and required

Crowder to undergo a new medical evaluation. The Board acknowledged there

were unusual delays in this matter, but nevertheless found that the facts on which

the ALJ relied to bar the Board's expert did not support a conclusion that the

Board caused protracted delays that constituted misconduct and justified

suppression of its expert. The Board concluded that the delays in the matter

were caused by multiple adjournment requests, many of which Crowder

requested or to which the parties consented to accommodate Crowder's need for

additional time. The Board noted that these adjournments caused presentation

of the Board's case to be delayed and ultimately caused its expert to withdraw.

The Board therefore found that the ALJ's order

imposes a sanction on [the Board] that is not justified.

Accordingly, the ALJ's decision to exclude [the

Board's] request for examination by a new [expert] and

to present expert medical evidence was an abuse of

discretion. If allowed to stand, it would betray

fundamental principles of fairness and justice. This

does not serve the public interest which requires that

the Board conduct medical examinations of applicants

to determine whether they are eligible for disability

retirement. [N.J.S.A.] 43:16A-7.

The Board also compared the probative value of its expert evidence to the

delays in the matter, and noted that expert medical testimony is highly probative

and is required in accidental disability cases where the issue of direct result is

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in dispute. Thus, the Board found that it was severely prejudiced by the barring

of its expert and concluded:

As such, the Board reasons that [its] expert medical

evidence is crucial to its position that [Crowder] is not

eligible for accidental disability retirement benefits.

By excluding [the Board's] relevant expert medical

evidence, the Board finds that the ALJ has significantly

prejudiced [the Board's] case as that evidence is

necessary to counter [Crowder's] claims.

Crowder argues that the Board decision was arbitrary, capricious and

unreasonable because the Board failed to address its own conduct in causing the

significant delays. This argument lacks merit.

N.J.A.C. 1:1-15.1(c) governs the admissibility of evidence in

administrative proceedings and provides, in pertinent part, that:

All relevant evidence is admissible except as otherwise

provided herein. A judge may, in his or her discretion,

exclude any evidence if its probative value is

substantially outweighed by the risk that its admission

will either:

1. Necessitate undue consumption of time;

or

2. Create substantial danger of undue

prejudice or confusion.

"Evidence rulings shall be made to promote fundamental principles of

fairness and justice and to aid in the ascertainment of truth." N.J.A.C. 1:1-

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15.1(b). Evidentiary rulings are reviewed for abuse of discretion. Griffin v.

City of E. Orange, 225 N.J. 400, 413 (2016). Reversal is warranted if the ruling

"was so wide off the mark that a manifest denial of justice resulted." Ibid.

(quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Such was the

case here.

Expert medical evidence is highly probative in the evaluation of an

application for accidental disability retirement benefits. N.J.S.A. 43:16A-7(1)

provides that a PFRS 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[.]" Thus, the statute

expressly provides that the Board must conduct a medical evaluation and

consider the evaluation in determining whether to grant an application for

accidental disability retirement benefits. The very requirement that the

"disability constitute the 'direct result' of a traumatic event [is] intended to

impose a stringent test of medical causation[.]" Korelnia, 83 N.J. at 170. Thus,

medical evidence is necessary to determine whether an applicant's disability is

the direct result of a traumatic event. See id. at 171.

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The issue before the ALJ and the Board was whether Crowder's disability

was a direct result of the traumatic event. In order to address that issue, the

Board sought to refute Crowder's claims of medical causation and, therefore, its

expert evidence was highly probative. The issue thus is whether the probative

value was outweighed by the risk that its admission will "[n]ecessitate undue

consumption of time." N.J.A.C. 1:1-15.1(c)(1). Crowder claims there was an

undue consumption of time and a third medical evaluation would cause further

undue delay to his detriment. However, he fails to acknowledge the extent to

which he contributed to the delays in this matter.

Although the need to conduct a third medical evaluation due to the

unavailability of the Board's expert caused a delay, a review of the record reveals

that Crowder's conduct also caused several delays. Notably, the matter was

delayed from January 10, 2011 until October 17, 2011 due to Crowder's two

adjournment requests and in order to allow him more time to obtain additional

evidence. Although a hearing was held on October 17, 2011, the matter was

further delayed due to the need for an additional hearing, which was caused by

the unavailability of the Board's expert. The ALJ scheduled the additional

hearing for February 15, 2012, but the hearing was subsequently adjourned after

Crowder requested an adjournment "due to the unavailability of medical

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experts." The ALJ further adjourned the hearing to September 26, 2012, because

Crowder had raised the prior incidents and had to submit documentation to the

Board regarding those incidents.

In July 2012, the OAL assigned the matter to a new ALJ, who scheduled

hearing dates in December 2012. However, those dates were also adjourned

because Crowder's experts were unavailable. The OAL then assigned the matter

to a new ALJ, who scheduled a hearing for November 14, 2013. The hearing

was adjourned because the Board's expert would no longer testify and Crowder

had to undergo a third medical evaluation by a new expert. This prompted

Crowder's motion to bar the Board's expert and resulted in the ALJ's April 3,

2014 order.

Although the history of the delays in this matter is extensive and

somewhat complicated, it is clear that both parties were responsible for the

delays, and Crowder made several adjournment requests and requests for

additional hearings that contributed to the delay and ultimately led to the Board's

need to retain a new expert. Thus, any undue expense or burden caused by the

delay cannot be attributed solely to the Board, and the further delay caused by

the need for a third medical evaluation does not outweigh the necessity and

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probative value of the expert evidence. Thus, the Board's decision to reverse

the ALJ's April 3, 2014 order was not arbitrary, capricious, or unreasonable.

Affirmed.

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