The opinion
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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1305-16T2
EZZARD WILLIAMS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,
Respondent-Respondent.
_____________________________
Submitted January 11, 2018 – Decided July 23, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 97967.
Carusa Smith Picini, PC, attorneys for
appellant (Timothy R. Smith, of counsel;
Steven J. Kaflowitz, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Robert S. Garrison, Jr., Deputy
Attorney General, on the brief).
PER CURIAM
Ezzard Williams appeals from an October 18, 2016 final
decision of the Board of Trustees of the Police and Firemen's
Retirement System (Board). The Board denied his application for
accidental disability retirement benefits on grounds that the
August 2, 2010 incident upon which his application was based was
not undesigned and unexpected and was not the direct result of a
traumatic event within the meaning of N.J.S.A. 43:16A-7. The
Board also determined that Williams was not entitled to ordinary
disability retirement benefits because he was not totally and
permanently disabled. In so doing, the Board adopted the
recommendation of the Administrative Law Judge (ALJ) that Williams
was not entitled to accidental disability retirement benefits, but
rejected the ALJ's findings of fact and conclusions of law that
Williams was totally and permanently disabled and therefore
entitled to ordinary disability retirement benefits. Because we
agree with the Board, we affirm.
As background, the Police and Firemen's Retirement System
(PFRS), "[l]ike all of the public retirement systems, . . .
includes provisions for the grant of ordinary and accidental
disability benefits." Patterson v. Bd. of Trs., State Police Ret.
Sys., 194 N.J. 29, 42 (2008) (citing N.J.S.A. 43:16A-6 to -7).
N.J.S.A. 43:16A-6(1) provides that a member, meeting the age and
service criteria, may be retired on an ordinary allowance
2 A-1305-16T2
provided, that the medical board, after a
medical examination of such member, shall
certify 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 and that such
incapacity is likely to be permanent and to
such an extent that he should be retired.
"Essentially, a qualified member who is permanently disabled for
any reason will qualify for ordinary disability." Patterson, 194
N.J. at 42.
"To be eligible for greater benefits under the accidental
disability provision, however, a PFRS member must satisfy N.J.S.A.
43:16A-7(1)'s more rigorous requirements." Mount v. Board of
Trs., ____ N.J. ____, ____ (2018) (slip op. at 29). Under that
provision, the PFRS authorizes an award of accidental disability
benefits to a member 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.
[N.J.S.A. 43:16A-7(1) (emphasis added).]
3 A-1305-16T2
In Richardson v. Board of Trustees, Police and Firemen's
Retirement System, 192 N.J. 189 (2007), the Court clarified the
meaning of the term "traumatic event," and set forth a five-pronged
standard mandating that a pension system member seeking accidental
disability benefits 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,
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.]
On April 18, 2011, Williams, then a police officer, applied
for accidental disability retirement benefits based on injuries
to his left knee sustained on August 2, 2010, while chasing a
4 A-1305-16T2
carjacking suspect. On May 15, 2012, the Board denied Williams'
application, finding that the August 2, 2010 event was "not
undesigned and unexpected," and did not directly cause "a total
and permanent disability." Williams filed an administrative
appeal and the matter was transmitted to the Office of
Administrative Law (AOL) as a contested case. During the AOL
hearing conducted over multiple dates, Williams, his physical
therapist, Kevin Brown, his treating physician, Dr. Richard A.
Boiardo, and the Board's physician, Dr. Arnold Berman, testified.
Williams testified he began his employment as a police officer
for Irvington Township in 2004 and was a police officer for eight-
and-a-half-years. Williams described his duties as "vigorous" and
physically demanding, in that he "did a lot of" "running, jumping"
and "chasing after guys[,]" and was involved in approximately
twenty physical altercations over the years. On August 2, 2010,
Williams was working with a partner when he received a radio call
reporting the location of a carjacked vehicle. Upon responding
to the location, Williams observed a suspect jump out of the
vehicle and flee, whereupon Williams exited his police vehicle and
pursued the suspect on foot. However, on his third step after
emerging from the police vehicle, Williams felt his left knee
"buckle" and "[give] way." After taking a few more steps, he
could go no further and called his partner for assistance.
5 A-1305-16T2
Williams testified he had never injured his knee before and
had "never felt any pain like [that] before in [his] life." He
described the pain he felt "shoot[ing] through his leg" as "really
sharp and extreme." After returning to headquarters, Williams
reported the injury to his supervisor and his partner later
prepared a report documenting the injury. Williams was transported
to Saint Barnabas Hospital, where, after an x-ray, he was diagnosed
with a sprain. Approximately two weeks later, he returned to
full-duty work while receiving physical therapy at Concentra
Medical Center (Concentra).
On August 17, 2011, Kevin Brown, a licensed physical therapist
employed by Concentra, performed a Functional Capacity Evaluation1
(FCE) on Williams as ordered by his Police Chief. After Williams
completed a pain questionnaire describing his pain level in his
left knee, Brown conducted a muscular skeletal examination and
performed a functional evaluation, which tested strength, range
of motion, and sensation. Brown concluded that as of the date of
the FCE, Williams was "unable to work . . . his regular duty job
as a police officer, and classified his work capacity as light-
1
A FCE assesses an individual's capacity to perform work
activities related to his or her employment. Functional Capacity
Evaluation, American Occupational Therapy Association, Inc.,
https://www.aota.org/about-occupational-
therapy/professionals/wi/capacity-eval.aspx. (last visited
December 26, 2017).
6 A-1305-16T2
medium, meaning he could only lift or handle weight anywhere from
twenty-one to thirty-five pounds.
Brown's determination was based on the fact that Williams was
unable to perform the self-reported duties of a police officer
because he could not "run, squat, climb, kneel, . . . crawl," push
or pull without experiencing excruciating pain and restricted
range of motion. However, Brown acknowledged that there was no
objective way to verify Williams' pain level. Brown also testified
that he did not verify the accuracy of Williams' job description
and made no recommendation as to whether Williams would be able
to return to work in the future.
Between September 2010 and October 2013, Williams underwent
four magnetic resonance imagings (MRIs) of his left knee. The
MRIs taken September 2010, March 2011, and June 2011 all revealed
no evidence of tearing or any substantial injury to his knee.
However, the October 2013 MRI showed a chronic sprain to the
lateral collateral ligament (LCL), injury to articular cartilage,
and evidence of an anterior cruciate ligament (ACL) rupture.
Further, on October 4, 2011, a computed tomography (CT) scan
revealed evidence of chondral damage2 to both the inside or medial
2
Chondral damage is damage to the articular cartilage that covers
the bony surfaces within the knee joint and may occur as a result
of a pivot or twist on a bent knee. Chondral Damage, South Bend
7 A-1305-16T2
joint space and the outside or lateral joint space of the knee and
a bony chip in the area of the left hip.
In addition, Williams received two steroid injections for the
worsening pain and on December 23, 2010, underwent arthroscopic
surgery, neither of which alleviated his symptoms. The operating
surgeon, Dr. Patricio Grob, told Williams that he had "something
in [his] knee that . . . should have [gone] away when [he] was a
child." Dr. Grob also indicated in his operative report that he
checked the ACL while performing the surgery and found it was
intact.
Williams subsequently filed a workers' compensation claim
based on the knee injury and agreed to a settlement. Under the
terms of the settlement, he would receive a monetary award as
compensation for a 27.5 percent permanent disability to his knee.
However, Williams explained that the workers' compensation
settlement could not be finalized until his accidental disability
retirement application was resolved. Williams also testified that
he was examined by Dr. Tiger in connection with the workers'
compensation case. According to Williams, Dr. Tiger found him
Orthopaedics,
http://www.sbortho.com/centers/Knee/ChondralDamage.html. (last
visited December 26, 2017).
8 A-1305-16T2
disabled as a result of the August 2, 2010 incident but provided
no reasoning.
Williams explained that given the physical nature of the job,
he was unable to perform many of the duties of a police officer
as a result of the injury. As examples, Williams stated he was
unable to defend himself or his partner in a physical altercation,
patrol on foot, move quickly or run. Williams explained that if
he tries to run, "it literally feels . . . like [his] bone is
literally smashing into one another."
Dr. Boiardo was qualified as an expert in orthopedic surgery
and testified that he treated Williams five times in total between
October 2011 and January 2014. Based on his physical examinations
of Williams as well as his review of the medical records, Dr.
Boiardo opined that as a result of the injury, Williams had
developed "traumatic arthritis" on the inside portion of his knee,
ruptured his ACL, and had instability in his knee due to the
chronic injury to his LCL. He explained that Williams would "have
difficulty running on uneven surfaces," "stopping and cutting,"
and "going up and down stairs," and would not be able to perform
the required duties of a police officer. As a result, Dr. Boiardo
opined that Williams was "completely and totally disabled from his
occupation as a police officer" because of the August 2, 2010
injury, which he characterized as a traumatic event.
9 A-1305-16T2
In that regard, Dr. Boiardo agreed with the assessment of
another one of Williams' treating physicians, Dr. James Lee, who
opined on August 25, 2011, that Williams had chronic instability
of his left knee and would not be able to return to his normal
policing duties. On the other hand, while Dr. Boiardo agreed with
Dr. Berman's diagnosis that Williams suffered from "degenerative
joint disease," he disagreed with Dr. Berman's conclusion that the
arthritic knee condition existed before the subject injury
occurred. Rather, Dr. Boiardo believed the subject injury occurred
and the arthritic condition ensued, as evidenced by Williams
performing policing duties for almost eight years with no knee
problems until the incident occurred. Dr. Boiardo also disagreed
with Dr. Berman's assessments that Williams had fully recovered
and could "participate in all activities of daily living."
On cross-examination, Dr. Boiardo was questioned on how the
ACL rupture could have gone unnoticed in three prior MRIs and in
the arthroscopic surgery performed by Dr. Grob, who noted in the
operative report that the ACL was intact. Dr. Boiardo explained
that "[t]here's a ligament in front of the ACL, which sometimes
in a thickened situation . . . is hypertrophy . . . [and] sometimes,
that can be mistaken for an intact ACL." In addition, according
to Dr. Boiardo, while MRIs are "very magical diagnostic tool[s],"
they are not "a hundred percent."
10 A-1305-16T2
Dr. Boiardo thus posited that the ACL "could have been
completely ruptured and missed" or ruptured "with subsequent wear
and tear" following the injury. However, he maintained "that the
injury caused the derangement," which "lead[] to the
degeneration," not the other way around as Dr. Berman indicated.
During cross-examination, Dr. Boiardo also defended errors in his
report,3 explaining that he was more accustomed to conducting
clinical work than writing reports and relied on his office staff
to complete the paperwork.
Dr. Berman was also qualified as an expert in orthopedic
surgery. He testified that on March 1, 2012, he conducted an
independent medical evaluation of Williams, who was then thirty-
six years old, and reviewed all relevant medical records available
to him. During his physical examination, he found Williams had
full range of motion in his left knee with no indication of an ACL
tear or a meniscal tear, no significant atrophy, and no
irregularities over the kneecap. According to Dr. Berman, "[t]he
knee was stable to varus and valgus," meaning "the ligaments on
the inside and the outside of the knee were stable" and there was
no "laxity."
3
For example, Dr. Boiardo explained that the diagnosis of a
meniscus tear recorded in an October 20, 2011 report was incorrect.
11 A-1305-16T2
In addition, he found "no tenderness, swelling, heat,
erythema4 or effusion," meaning there was "no measurable fluid in
the knee at that time." Dr. Berman explained that given the
sensitivity of the "joint lining . . . to any irritation or
injury," "the fact that there [was] no effusion [was] very
important because it show[ed] that the joint lining [was] normal,"
and was "a sign that there [was] nothing of a serious nature in
the knee."
As a result of his examination, Dr. Berman diagnosed Williams
with "degenerative joint disease," or "osteoarthritis," which is
"a general term for [an] arthritic condition," with "no effects
of the resulting trauma." He concluded that Williams' "condition
was clearly [and] very definitively not related to [the August 2,
2010] accident" and there was no aggravation of a pre-existing
condition caused by the accident.
In rendering his diagnosis, Dr. Berman relied on the minimal
degree of arthritis shown on the 2011 CT scan as well as the fact
that the three MRIs conducted before he examined Williams "were
all a hundred percent normal,"5 "[t]he x-ray [was] normal," and
4
Dr. Berman defined an erythema as redness of the skin caused by
increased blood flow to an injury.
5
The October 2013 MRI was conducted after Dr. Berman's
evaluation.
12 A-1305-16T2
Dr. Grob's operative report showed no meniscal or ACL tear. Dr.
Berman pointed out that his arthritis diagnosis was based solely
on the CT scan that "showed slight but not disabling narrowing of
the joint," and was therefore "a radiologic finding without any
clinical correlation." Further, Dr. Berman opined that Williams'
condition was not a disabling condition and the FCE did not alter
his opinion because there was "no objective evidence" in the FCE
that correlated to his examination.
On August 16, 2016, the ALJ rendered his Initial Decision,
concluding that while Williams "proved by a preponderance of the
evidence that he was totally disabled and unable to perform the
duties" required of a police officer, he did not prove that his
disability was "the direct result" of "a traumatic event that
[was], among other things, undesigned and unexpected." In
rendering his decision, the ALJ found Williams to be a "credible,
truthful witness," and accepted his description of what transpired
on August 2, 2010 and the subsequent medical treatment he
underwent.
However, the ALJ found "no evidence" of "an unexpected
happening, not the result of pre-existing disease alone or in
combination with the work," to meet the Richardson test and "show
that the incident that caused the injury was a traumatic event
13 A-1305-16T2
that [was] . . . undesigned and unexpected." In fact, according
to the ALJ,
[Williams] acknowledged that he was performing
his usual work in the usual and customary
manner; responded to the incident in
accordance with the police training that he
received; his job specification include[d] the
use of "hands-on force" to apprehend a
suspect; the specification contemplate[d]
that he may be required to use physical force
during the arrest of a suspect.
Acknowledging that "[t]here [was] a general consensus that
[Williams had] a degenerative joint disease," the ALJ found "no
evidence to suggest that the alleged traumatic event merely
aggravated a previous condition," but rather that Williams'
"disability developed over time." However, because he was not
"employable in the general area of his ordinary employment" as a
result of the disability, the ALJ concluded that Williams was
permanently and totally disabled. Accordingly, the ALJ
recommended that the Board's denial of Williams' accidental
disability retirement benefits application be affirmed, but that
the determination that Williams was not eligible for ordinary
disability retirement benefits be reversed.
In rendering his decision, the ALJ discussed extensively the
"differing views" of the two experts, with Dr. Boiardo concluding
that Williams' injury on August 2, 2010, rendered him disabled and
"incapable of performing his required duties," and Dr. Berman
14 A-1305-16T2
concluding that Williams "was not totally and permanently disabled
and [was] able to perform the duties of a police officer." The
ALJ noted that where there is conflicting medical testimony, under
the case law, the weight to which an expert's opinion is entitled
may be determined by the underlying facts and reasoning upon which
the opinion is based as well as corroborating records of other
physicians. Moreover, according to the ALJ, greater weight should
ordinarily be accorded to the treating physician as opposed to an
evaluating physician who has only met with the employee on one
occasion.
Nevertheless, the ALJ "was better persuaded by, and [gave]
greater weight to, the testimony of Dr. Berman" because his
conclusions were consistent with the findings of both Williams'
surgeon and one of his treating physicians. The ALJ found Dr.
Boiardo's demeanor to be "somewhat flippant" and explained that
Dr. Boiardo "did not exhibit cognizance of the importance of
accurate and complete medical reporting," and "did not offer any
explanation for how the surgeon who actually viewed the interior
of [Williams'] knee during the surgery, could have 'missed' the
damage to the areas of the knee that he operated on; 'damage' that
was not evident in the MRI reports."
Thus, consistent with Dr. Berman's opinion, the ALJ concluded
that the August 2, 2010 incident did not cause a disabling injury
15 A-1305-16T2
to Williams' knee. However, because "[a]ll of the doctors agree[d]
that [Williams] suffer[ed] from a degenerative joint disease," and
"[t]he physical therapist support[ed] those conclusions," the ALJ
determined that the disease rendered Williams permanently and
totally disabled from the performance of his duties as a police
officer, notwithstanding Dr. Berman's contrary opinion.
On October 18, 2016, after considering the parties'
exceptions and the ALJ's initial decision, the Board adopted the
ALJ's recommendation that Williams was not entitled to accidental
disability retirement benefits, but rejected the ALJ's findings
of fact and conclusions of law that Williams was totally and
permanently disabled. The Board noted that while properly "giving
'greater weight to[] the testimony of Dr. Berman,'" the ALJ failed
"to resolve the experts' disagreement as to the nature of the
diagnosis (traumatic v. degenerative [osteoarthritis])" nor
"explain why he dismissed the opinions of [Dr.] Berman about
Williams'[] alleged total and permanent disability," or "why he
has not accepted [Dr.] Berman's conclusions regarding the lack of
objective evidence of impairments to Williams['] knee."
According to the Board, the ALJ's only explanation was that
"[a]ll of the doctors agree[d] that [Williams] suffer[ed] from a
degenerative joint disease [and] [t]he physical therapist
support[ed] those conclusions." However, "simply having a
16 A-1305-16T2
diagnosis of a condition like degenerative arthritis joint disease
does not equate to disability" and Brown's testimony as a physical
therapist was "in no way diagnostic" and did not support a finding
of disability. Further, the Board reasoned that whereas Dr.
Boiardo diagnosed traumatic osteoarthritis as a direct result of
the August 2, 2010 incident, Dr. Berman diagnosed degenerative or
wear and tear osteoarthritis as "a radiological finding" based on
the CT scan showing "a slight, but not disabling, narrowing of the
joint[,]" despite there being no "clinical correlation on his
examination."
The Board determined that there was no "competent, credible
evidence in the record" to "support the ALJ's conclusion that
Williams [was] permanently and totally disabled" and "[t]o the
extent the ALJ relie[d] on Brown's testimony, Brown . . . gave
'non-medical' testimony . . . [and] made 'no final recommendation
as to whether [Williams] [could] return to work.'" Accordingly,
the Board determined that because the August 2, 2010 incident was
not undesigned, unexpected, or the direct result of a traumatic
event, Williams was not entitled to accidental disability
retirement benefits. Further, because Williams was not
permanently and totally disabled, he was not entitled to ordinary
disability retirement benefits. This appeal followed.
17 A-1305-16T2
On appeal, Williams contends that the Board erred in not
accepting Dr. Boiardo's expert testimony; failing to find Williams
permanently and totally disabled as the ALJ did; failing to
causally relate his permanent injury to the August 2, 2010
incident; and determining that the August 2, 2010 incident was not
undesigned and unexpected and not the result of a traumatic event.
We disagree.
"Our review of administrative agency action is limited."
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,
27 (2011). Reviewing courts presume the validity of the
"administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014).
For those reasons, "an appellate court ordinarily should not
disturb an administrative agency's determinations or findings
unless there is a clear showing that (1) the agency did not follow
the law; (2) the decision was arbitrary, capricious, or
unreasonable; or (3) the decision was not supported by substantial
evidence." In re Application of Virtua-West Jersey Hosp. for a
Certificate of Need, 194 N.J. 413, 422 (2008). "The burden of
demonstrating that the agency's action was arbitrary, capricious
or unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44
(App. Div. 2006).
18 A-1305-16T2
"[T]he test is not whether an appellate court would come to
the same conclusion if the original determination was its to make,
but rather whether the factfinder could reasonably so conclude
upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)
(quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App.
Div. 1985)). "Where . . . the determination is founded upon
sufficient credible evidence seen from the totality of the record
and on that record findings have been made and conclusions reached
involving agency expertise, the agency decision should be
sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J.
174, 189 (1980). That said, appellate courts do review de novo
an agency's interpretation of a statute or case law. Russo, 206
N.J. at 27.
Williams challenges the Board's rejection of the ALJ's
determination that he was totally and permanently disabled and
therefore entitled to ordinary disability retirement benefits.
Indeed, an agency's authority to reject and modify an ALJ's initial
decision is limited. Specifically, pursuant to N.J.A.C. 1:1-
18.6(b),
[t]he order or final decision rejecting or
modifying the initial decision shall state in
clear and sufficient detail the nature of the
rejection or modification, the reasons for it,
the specific evidence at hearing and
interpretation of law upon which it is based
19 A-1305-16T2
and precise changes in result or disposition
caused by the rejection or modification.
We are satisfied, however, that the Board comported with this
legal mandate in its October 18, 2016 decision, rejecting the
ALJ's findings of fact and conclusions of law in relation to
Williams' entitlement to ordinary disability retirement benefits.
In so doing, we conclude that the Board correctly determined that
the record did not support the ALJ's determination that Williams
was totally and permanently disabled.
To qualify for ordinary disability retirement benefits under
N.J.S.A. 43:15A-42, a public employee bears the burden of proving
permanent and total disability from performing their normal
employment duties. Bueno v. Bd. of Trs., Teachers' Pension &
Annuity Fund, 404 N.J. Super. 119, 126 (App. Div. 2008). Guided
by our limited scope of review, we discern no error in the Board's
decision to reject the ALJ's decision.
As the Board stated, although the ALJ evaluated the expert
testimony and concluded Dr. Berman's opinions regarding Williams'
condition and ability to work as a police officer were more
persuasive than Dr. Boiardo's, the ALJ failed to address his
categorical rejection of Dr. Berman's opinion that Williams was
not totally and permanently disabled. Because the Board's
determination was amply supported by credible evidence, was
20 A-1305-16T2
neither arbitrary, capricious, nor unreasonable, and complied with
N.J.A.C. 1:1-18.6(b), we discern no basis to intervene.
Williams also argues that he is entitled to accidental
disability retirement benefits because the August 2, 2010 "injury
was a qualifying traumatic event, undesigned and unexpected, under
Richardson." However, an individual seeking accidental disability
retirement benefits must prove a disabling permanent injury, and
must produce "such expert evidence as is required to sustain that
burden." Patterson, 194 N.J. at 51.
Because we conclude that the Board correctly rejected the
ALJ's conclusion that Williams was totally and permanently
disabled, we need not address whether the August 2, 2010 injury
was a qualifying traumatic event as he was otherwise ineligible
for benefits based on his failure to prove that he suffered a
disabling permanent injury. "We rely upon the expertise of the
[Board] to separate legitimate from illegitimate claims," ibid.,
and we are satisfied that the Board's "determination is founded
upon sufficient credible evidence seen from the totality of the
record." Gerba, 83 N.J. at 189.
Affirmed.
21 A-1305-16T2