DAVID JONES v. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' 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NOT FOR PUBLICATION WITHOUT THE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-3571-19

DAVID JONES,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES'

RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________

Argued November 1, 2021 – Decided August 10, 2022

Before Judges Accurso and Rose.

On appeal from the Board of Trustees of the Public

Employees' Retirement System, Department of the

Treasury, PERS No. xx6732.

Samuel M. Gaylord argued the cause for appellant

(Gaylord Popp, LLC, attorneys; Samuel M. Gaylord,

on the brief).

Matthew Melton, Deputy Attorney General, argued the

cause for respondent (Andrew J. Bruck, Acting

Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel; Matthew

Melton, on the brief).

PER CURIAM

David Jones appeals from a final decision of the Board of Trustees of the

Public Employees' Retirement System, denying his application for accidental

disability retirement benefits. The Board rejected the findings of an

Administrative Law Judge who determined Jones is totally and permanently

disabled as a direct result of a puncture wound to his right hand suffered in a

fall at work. Because we agree with the Board that Jones failed to establish his

disabling condition was a direct result of the work injury to his hand, we

affirm.

The facts surrounding the accident are not in dispute. Jones worked as a

recycling operator for Ocean County, grinding up brush and trees, mulching

leaves and collecting materials from different sites. He'd worked for the

County for two years at the time of his accident. In 2010 Jones was

connecting an industrial tub grinder to a truck when he slipped and fell,

piercing the palm of his right hand on a bungee cord hook. He was transported

by ambulance and treated at an urgent care center.

The dispute in this case centered around the symptoms Jones reported

and their connection to the fall. Jones complained to an orthopedic surgeon

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within days of the accident of numbness and pain in his thumb and index

finger. When an MRI reflected no evidence of a tendon tear, the doctor

recommended exploratory surgery, which was performed a week after the

accident. The surgeon reported Jones' nerves and tendons were intact, and in

the weeks that followed, he improved and gained motion. Exercising his hand

at home a month or so after the fall, Jones reported feeling a tearing sensation

in his palm, after which he was unable to bend his fingers. He claimed to have

had a similar response when a physical therapist later manipulated his thumb,

sending pain shooting up into his neck.

Shortly thereafter, Jones reported he was unable to bend his hand at all,

being unable to straighten his fingers or make a fist. He also complained about

pain in his back and shoulder, problems flexing his elbow and severely limited

range of motion. Five months after his fall, Jones was reporting difficulty

moving his right arm. He reported numbness in his face and inside his mouth

and drooling. He also reported difficulty with bladder control, gaining an

erection and numbness in his feet.

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Although Jones returned to work for a short time on light duty, he

claimed he was in too much pain to continue. He resigned from his job 1 and

began treating with his own doctors after failing to obtain relief from the

treatment provided by the County's workers' compensation doctor.

The Board denied Jones' application for accidental disability retirement

benefits finding he was not totally and permanently disabled, and there was no

evidence in the record that the fall and puncture wound to his hand were a

direct cause of his symptoms. Jones appealed and the matter was transferred

to the Office of Administrative Law for a hearing.

Jones testified about the accident and his hand, shoulder and back pain.

Medical records admitted in evidence reveal Jones did not report pain in his

neck or right shoulder until about a month after the accident. A progress note

from that time by the orthopedist who performed the exploratory surgical

procedure on Jones' hand, documents Jones' speculation "that he might not

have been able to feel this initially because of the severe pain he had in the

level of the hand." The note also states Jones "has not had pain in the level of

the shoulder or the right side of the neck previously." The note concludes with

1

The County claimed Jones had abandoned his job and instituted disciplinary

action against him. Jones eventually settled his dispute with the County and

was permitted to resign in good standing.

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the surgeon determining to seek a neurology evaluation because Jones' report

of pain in his shoulder and neck as well as his elbow and hand "does not fit in

any specific orthopedic picture." The note repeats that the surgeon "visualized

that the tendon and nerve structures in the area [of the puncture wound] were

intact" during the exploratory procedure and reports the "incision is healing

nicely."

Jones testified he "sustained a lot of injuries [in the accident] that were

never looked at, and those injuries have gotten worse over time." He claimed

he was in pain "24 hours a day, 7 days a week," although taking no pain

medication and receiving no treatment. Jones testified, consistent with the

medical records in evidence, that it was after the exploratory surgery but

before he started physical therapy when he was doing range of motion

exercises at home that he experienced the "sharp pain" and "all fingers stopped

moving." He also testified that "[f]or the first month or so, it seemed like

things were progressing well." But then "[o]ne day something went terribly

wrong at physical therapy." Jones claimed the therapist "moved my thumb

out, and it shot a pain up into my neck and, then, that was it" his fingers "never

moved after that."

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According to Jones, after the problem with the pain radiating from his

thumb up into his neck, doctors undertook a "nerve conductive study," and

finding "problems," doctors "were on the defensive. They were worried

because things were bad. At that point, they never looked any further than my

neck. They never looked down my back." Jones claimed "after that, every

doctor they sent me to was trying to say there was nothing wrong. They were

just ignoring the problems."

Jones did not present the testimony of a treating doctor. Instead, each

side presented the testimony of an expert who examined Jones for purposes of

this action. In her decision, the ALJ very briefly summarized the testimony of

both experts.

The ALJ noted Jones' expert, a board certified orthopedist, who had not

performed surgery since the early 1990s, diagnosed him with "chronic post-

traumatic cervical and lumbosacral strain and sprain; bulging discs C4 -C5, C5-

C6 and C6-C7; aggravation of pre-existing age-related multi-level

degenerative disc disease; cervical radiculopathy, herniated nucleus pulposus

L4-L5 and L5-L6 and herniated discs at T1-T2 and T8-T9; [and] continuing

neuropathic pain syndrome in the right hand." The ALJ recapped the expert's

testimony that exploratory surgery of Jones' hand was conducted "[a]fter the

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hand failed to heal," and that despite "epidural injections" four years after the

accident that brought "minor relief . . . [t]he hand never fully healed." 2 She

concluded Jones' expert testified he "was working without any pain prior to the

accident," and in the expert's medical opinion, Jones "is totally and

permanently disabled as a result of his neck, back and hand injuries" as a

"direct result" of his fall at work.

The ALJ noted the Board's expert, a board certified orthopedic surgeon

who currently performs surgery in his practice, reviewed MRI, x-ray reports

and "other records from [Jones'] treating physicians." The expert claimed

Jones did not report any complaints in his back and neck during the expert's

examination of him more than four years after the accident. The expert

examined Jones' hand, noting its "clenched" state and decreased sensation, but

claimed "he could not explain the condition of [Jones'] hand and opined that it

was inconsistent with the injury." He also noted the disc bulges and

herniations reflected in the reports as well as Jones' bilateral footdrop but did

not find any evidence of the footdrop or any other disability. The ALJ

summarized the Board's expert's conclusions by writing "[i]n short,

2

It appears from the record that Jones received only one epidural injection

and no other treatment besides some occupational therapy for his hand in 2010

or 2011.

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notwithstanding the reports from various treating physicians for several years,

MRIs and x-rays to the contrary, [the Board's expert] found no evidence of any

disability in the neck, back or hand," and concluded "in his expert medical

opinion" Jones was "not totally and permanently disabled from his position at

the Ocean County Recycling Center."

Weighing the conflicting opinions, the ALJ found Jones' expert "offered

clear, concise and detailed testimony and demonstrated knowledge of [Jones']

symptoms, x-rays, MRIs and past medical history," while the Board's expert,

although having "claimed to have reviewed prior medical reports and

conducted a physical examination of [Jones], . . .gave no weight to [Jones']

symptoms, the MRI and x-rays and other medical reports." The ALJ thus

concluded it was "difficult to give any weight" to his opinion. She was "[o]n

balance, . . . persuaded by, and [gave] greater weight to, the testimony of

[Jones' expert], specifically crediting his detailed tying of [Jones'] conditions,

treatments, and [his] medical history," including "his conclusion that [Jones']

disability is total and permanent, and a direct result of the July 2010 accident ."

The Board rejected the ALJ's decision and, specifically, her findings as

to the credibility of the experts who testified at the hearing. The Board found

the ALJ misstated the testimony, noting she "incorrectly found" the Board's

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expert failed to examine Jones' neck and back, notwithstanding his

unequivocal testimony to the contrary, including his report of a negative

finding on the Spurling test. The Board found the ALJ's summary of the

expert's "testimony to be simply incorrect," providing no support for her

determination that the Board's "expert testimony and opinion were not

credible."

The Board also rejected as unsupported the ALJ's finding that the

Board's expert "gave no weight to [Jones'] symptoms, the MRI and x-rays and

other medical reports." Specifically citing to the record, the Board found the

expert "was ultimately unable to correlate Jones' subjective and self-reported

symptoms with the objective diagnostic medical evidence such as MRIs and x-

rays, to which he did give appropriate weight." The Board noted the expert

"used his medical knowledge to compare the subjective with the objective,

reaching a medical conclusion that was more supported by the available

objective evidence than Jones' expert," who the Board found "theorized about

facts outside of the record in trying to tie the alleged condition of Jones' hand

with the available medical documentation." The Board found the ALJ "failed

to properly distinguish between . . . Jones' subjective complaints versus

complaints that were corroborated by objective medical findings."

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The Board noted other errors in the ALJ's summary of the testimony,

including that Jones reported symptoms to his neck and back at the same time

he reported the injury to his hand, although Jones conceded at the hearing

those other symptoms appeared weeks after the fall. The Board found "[t]hese

differences from the actual record are not trivial," because "[u]nder the ALJ's

misreading, there were demonstrable injuries, signs of injury, and

contemporaneous subjective reports that manifested at the time of the 2010

incident, as opposed to the still unexplained set of symptoms claimed later by

Jones and unsupported by corroborating objective evidence." The Board found

"[t]he implication that Jones was not fully treated initially or fully evaluated

by [the Board's expert] on the basis of symptoms that were not presented at the

time is a fatally flawed foundation of the ALJ's credibility findings," leading to

the Board's rejection of the ALJ's findings on the point.

The Board found that in rejecting its expert's "opinion and testimony, the

ALJ effectively found a medically impossible symptomology credible." The

Board noted its expert "testified in detail that a complete paralysis of the hand

and wrist is simply not consistent with the fact that the relevant nerves that

could be affected by a puncture would innervate or enervate only particular

parts of the hand rather than the entirety of it." The Board further observed

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that "Jones' claims of limited wrist motion were also inexplicable given the

location and responsibilities of the nerves that would be implicated in his

hand's total failure to function at all compared with the puncture in his palm

that is supposedly the root of their damage."

The Board focused on its expert's testimony that when he "put Jones'

wrist in flexion to test the state of his tendons," which he demonstrated at the

hearing, "Jones' fingers did not move, indicating either that his tendons had

been severed (which is indisputably not the case) or that Jones was

purposefully not letting his fingers move in response to the test." The expert

testified to account for that response, "he'd have to have a cut of every single

tendon and every nerve across the wrist and also, he'd have to have a cut nerve

up from a higher level for wrist extension and flexion." The expert also opined

"Jones' hand symptoms could not be explained by a herniated disc or spine

pathology," an opinion the ALJ failed to address. The Board concluded the

ALJ's "[d]ecision disregarded wholesale the fact that Jones' symptoms strain

credulity and there is a far more plausible reason why Jones is not makin g use

of his allegedly paralyzed hand, which both experts stated shows no signs of

atrophy."

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Even more important, however, the Board noted "[t]he ALJ also

erroneously stated [Jones' expert] came to the conclusion that the disability

was a direct result of the 2010 incident," although he never made a "claim of

direct causation" and the decision nowhere cites to one. The Board noted

Jones' expert "testified — based on nothing in the record or his report — that

infection and inflammation in Jones' hand have spread and 'that's why he's

developed this claw like deformity, because he's getting adhesions in the hands

now. That's why the hand looks like it does on the right side.'" 3 The Board

found Jones' expert "admittedly based this opinion on the mere fact that there

was exploratory surgery following a hand puncture," but "he never reviewed

the notes of the operation to confirm this theory and instead relied on broad

3

Jones' expert further testified "one of the problems when you get a

penetrating hand wound, is that infection and inflammation can spread through

the fascial plates. That's why hand wounds are so difficult to deal with. And

that's why he did have surgery to try and get this thing under control early on."

The expert added, "[u]nfortunately for Mr. Jones, it didn't. And that's why he's

developed this claw like deformity, because he's getting adhesions in the hands

now, in the tendons that pull the fingers." According to the medical records in

evidence, the exploratory surgery performed a week after the accident was

done to allow the surgeon to visualize the nerves and tendons in the hand

based on Jones' complaint of numbness and pain in his thumb and forefinger,

not to "clean it up because it's a penetrating wound," as Jones' expert testified

without having reviewed the operative notes. The surgeon found no injury to

those structures and reported the "incision is healing nicely."

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inference to find an infection in Jones' hand ultimately responsible for the

unexplained symptoms."

The Board rejected Jones' expert's attempt to tangentially link Jones'

claimed hand paralysis "to the 2010 incident by way of an imagined infection"

never noticed or documented by any of the several doctors and physical

therapists who treated Jones in the years following his fall. The Board rejected

the ALJ's reliance on the testimony of Jones' expert because "it was not based

on the record, but on speculation."

The Board accordingly concluded Jones failed to produce competent

medical testimony that his claimed disability is the direct result of a traumatic

event. See Korelnia v. Bd. of Trs., 83 N.J. 163, 170 (1980) (explaining a

traumatic event, "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"). It noted "[t]he tenuous connection between Jones'

symptoms and his medical reports carries through to the even more tenuous

connection between his symptoms and the incident in question as the puncture

wound from the bungee cord would have been incapable of producing a total

paralysis of Jones' right hand."

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The Board explained "[t]he events presented by Jones to explain his

hand paralysis cannot, in themselves, produce a legally adequate showing of

direct causation as they rely on proximate cause." As both Jones testified and

the progress notes of the orthopedic surgeon who performed the exploratory

procedure verified, his "puzzling hand symptoms" began after a physical

therapist manipulated his thumb weeks after his fall and the exploratory

procedure. The Board concluded that "[e]ven if it were possible that the

overextension of a thumb could serve to make the severing of all the

controlling nerves and tendons that were shortly before all found to be intact,

this event was not part of the 2010 incident and does not present a direct

causation."

Jones appeals, arguing the Board "improperly determined" he failed to

prove he is totally and permanently disabled and that his 2010 fall "was the

substantial cause" of his disability. We disagree.

Our role in reviewing the decision of an administrative agency is limited.

In re Stallworth, 208 N.J. 182, 194 (2011). We accord a strong presumption of

reasonableness to an agency's exercise of its statutorily delegated

responsibility, City of Newark v. Nat. Res. Council in Dep't of Env't. Prot., 82

N.J. 530, 539 (1980), and defer to its fact finding, Utley v. Bd. of Rev., 194

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N.J. 534, 551 (2008); Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143

N.J. 22, 29 (1995) (Handler, J., dissenting). We will not upset the

determination of an administrative agency absent a showing that it was

arbitrary, capricious, or unreasonable; that it lacked fair support in the

evidence; or that it violated legislative policies. Lavezzi v. State, 219 N.J.

163, 171 (2014); Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963).

Our public pension systems are "bound up in the public interest and

provide public employees significant rights which are deserving of

conscientious protection." Zigmont v. Bd. of Trs., Tchrs.' Pension & Annuity

Fund, 91 N.J. 580, 583 (1983). Because pension statutes are remedial in

character, they are liberally construed and administered in favor of the persons

intended to be benefited thereby. Klumb v. Bd. of Educ. of Manalapan-

Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009). Nevertheless, an

employee has only the rights and benefits provided by those statutes and their

enabling regulations. Francois v. Bd. of Trs., Pub. Emps.' Ret. Sys., 415 N.J.

Super. 335, 349 (2010). The Board acts in a fiduciary capacity with the

obligation to serve the best interests of the pension fund and all of its

beneficiaries, not just the member seeking the benefit. Mount v. Trs. of the

Pub. Emps.' Ret. Sys., 133 N.J. Super. 72, 86 (App. Div. 1975).

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Applying those standards here, we are satisfied the Board appropriately

rejected the ALJ's initial decision finding Jones established he was

permanently and totally disabled as a direct result of the work injury to his

hand. See Richardson v. Bd. of Trs., 192 N.J. 189, 212 (2007) (defining a

traumatic event as "an unexpected external happening that directly causes

injury"). Although N.J.S.A. 52:14B-10(c) provides an agency head may not

reject an ALJ's fact findings as to issues of credibility of lay witness testimony

without first determining the findings are arbitrary or capricious or are not

"supported by sufficient, competent, and credible evidence in the record,"

which the Board demonstrated here, the constraint does not extend to the

testimony of experts in any event. See ZRB, LLC v. N.J. Dep't of Env't. Prot.,

Land Use Regul., 403 N.J. Super. 531, 561 (App. Div. 2008).

Cases involving disputes over accidental disability benefits are often

awash in "conflicting medical opinion, most if it offered in good faith and

always with the assurance that each is the medically accepted one." Bialko v.

H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div. 1955). It is incumbent

on the ALJ in the first instance to appraise the "maze of conflicting medical

proof," ibid., determining which opinion is the soundest depending on a

variety of factors, including whether the experts have based their conclusions

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largely on the patient's subjective complaints, and if their opinions are

supported by objective evidence corroborated by other doctors, see Angel v.

Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961).

"Unless contrary to common sense, common knowledge, or recognized

physical laws, or based on primary facts absent from the proofs, the expert's

statements are to be sifted by the [factfinder] like other testimony." Ibid. Of

course, "the value or weight of the expert opinion is dependent upon, and no

stronger than, the facts upon which it is based." State v. Vandeweaghe, 351

N.J. Super. 467, 480 (App. Div. 2002). Ultimately, "the choice of accepting or

rejecting testimony from witnesses resides with the administrative agency, and

so long as that choice is reasonably made it is accorded deference on appeal."

In re Young, 202 N.J. 50, 70-71 (2010) (quoting Campbell v. N.J. Racing

Comm'n, 169 N.J. 579, 587-88 (2001)).

Having reviewed the record, we are satisfied the Board's criticisms of

the ALJ's fact-finding here are fair ones. The ALJ's summary of the experts'

testimony is cursory and does not capture the facts underlying the opinions of

either expert. See State, Dep't of Health v. Tegnazian, 194 N.J. Super. 435,

442-43 (App. Div. 1984) (discussing the need for the ALJ to make "basic

findings of fact sufficient to support" the ALJ's recommendations). The ALJ

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relied on Jones' expert having diagnosed him as suffering from "chronic post -

traumatic cervical and lumbosacral strain and sprain; bulging discs C4 -C5, C5-

C6 and C6-C7; aggravation of pre-existing age-related multi-level

degenerative disc disease; cervical radiculopathy, herniated nucleus pulposus

L4-L5 and L5-L6 and herniated discs at T1-T2 and T8-T9; [and] continuing

neuropathic pain syndrome in the right hand," ignoring, as the Board's expert

charged, that the "diagnosis" is merely a list of MRI findings and an undefined

pain syndrome without any clinical correlation.4 Moreover, the ALJ did not

address why she rejected the Board's expert's opinion that a puncture wound

that demonstrably didn't damage the nerves and tendons in Jones' palm could

not have caused his paralysis or accepted that of Jones' expert that the

paralysis was caused by an infection nowhere documented in the medical

record, i.e., an opinion based on facts not in the record.

4

Jones' expert did not define "neuropathic pain syndrome." He testified Jones

didn't have "a median nerve issue" and "you would be hard put to say that this

gentleman had sustained a complex regional pain syndrome . . . to the right

upper extremity," because "he's got none of the clinical findings to support

Complex Regional Pain Syndrome." The expert explained he wouldn't "call

this CRPS disease because he doesn't match up with the criteria that's

necessary. So, it is what we would call neuropathic pain." The Board's expert

testified he'd never heard of it, and one would have to ask Jones' expert what

he meant by it.

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Most important, as the Board noted in its final decision, the ALJ

erroneously stated Jones' expert concluded Jones' disability was a direct result

of the 2010 incident, when he never offered that opinion at the hearing. While

arguing the Board erred in rejecting the ALJ's findings, Jones, tellingly, does

not point us to where his expert testified his paralysis was a direct result of his

2010 fall and puncture wound. We found no such testimony in the record.

Although the expert testified Jones could no longer perform the functions of

his job because he could not use his dominant hand, the expert did not opine

Jones couldn't use that hand as a direct result of having impaled it on the

bungee cord hook. Because Jones did not establish his alleged disability was

as a direct result of his 2010 accident, the Board was correct to deny him

accidental disability retirement benefits.

Affirmed.

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