# Gerba v. BD. OF TRUSTEES, PUBLIC EMPLOYEES'RETIREM. SYS.

> Supreme Court of New Jersey · June 12, 1980 · 83 N.J. 174

URL: https://www.frixlaw.com/law-library/cases/9701614

## Case

- **Full name:** Joseph Gerba, Respondent, v. Board of Trustees of the Public Employees’ Retirement System, Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** June 12, 1980
- **Citations:** 83 N.J. 174; 416 A.2d 314; 1980 N.J. LEXIS 1358
- **Precedential status:** Published
- **Opinion:** Dissent by Pashman
- **Judges:** Handler, Pashman
- **Cited by:** 101 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Maynard v. Board of Trustees of the Teachers' Pension & Annuity Fund, 113 N.J. 169 (1988).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701614

## How later opinions describe it (automated extraction)

- stating that, to qualify for accidental disability retirement benefits, the member must show that the accident was "the essential significant or the substantial contributing cause of the resultant disability" and a disability resulting from the mere aggravation or igniting of …
- holding that a traumatic event can still "satisfy the statutory standard of an accidental disability even though it acts in combination with an underlying disease" as long as it is an "essential significant or substantial contributing cause"
- finding the medical evidence demonstrated the incident aggravated the progression of an arthritic condition but failed to establish the claimant's disability was a direct result of the injury for an award of accidental disability benefits
- applying Workers' Compensation Act's concept of causation to PERS statute

## Opinion text

PASHMAN, J.,
dissenting.
Today the Court continues the unreasonably restrictive approach to disability pension benefits for public employees that it *190 adopted in Cattani v. Board of Trustees, Police & Firemen’s Retirement System, 69 N.J. 578 (1976). In that case, the majority relied on the “fanciful distinction between the phrase ‘traumatic event’ and ‘traumatic injury,’ ” id. at 595 (Pashman, J., dissenting), to deny recovery of disability benefits under N.J.S.A. 43:16A-7. In the present case, the majority has interpreted “direct result” under N.J.S.A. 43:15A—43 to require a “traumatic event” to be “the essential significant or substantial contributing cause of the disability,” ante at 187. In practice this standard requires a traumatic event to be the sole cause— despite the majority’s claim to the contrary, see ante at 187. Since “direct result” plainly refers to a direct cause and not a sole cause, the majority’s standard is unwarranted. Furthermore, the majority has accepted findings of fact which are clearly erroneous and unsupported by the record. I respectfully dissent.
I
To reach its conclusion that claimant’s disability was not the “direct result” of the traumatic events in 1964 and 1973 as required by N.J.S.A. 43:15A-43, the majority relies on the hearing officer’s finding that there was no causal relationship between the two accidents and the disability. Such reliance is misplaced. Although it is true that courts have a limited role in reviewing the factual findings of an administrative agency, see, e. g., Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980), that review cannot be relegated to a mere rubber-stamp of agency action. The proper standard governing appellate intervention depends upon
“whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,” considering “the proofs as a whole,” with due regard to the opportunity of the one who heard the witnesses to judge of their credibility * * * and, in the case of agency review, with due regard also to the agency’s expertise where such expertise is a pertinent factor. [Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))]
See also Mayflower Securities Co., Inc. v. Bureau of Securities, 64 N.J. 85, 92-93 (1973); Vliet v. Board of Trustees, PERS, 156 N.J.Super. 83, 88 (App.Div.1978). In determining whether fac *191 tual findings are clearly erroneous, a court should be guided by the following:
While this feeling of “wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of “wrongness” can arise in numerous ways—from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, a clearly unjust result, and many others. [State v. Johnson, 42 N.J. at 162 ].
In the present case the hearing officer’s finding that there was no causal connection between the disability and the accidents is clearly wrong. Not only is there a manifest lack of inherently credible evidence to support the finding, but it is equally clear that the hearing officer disregarded crucial evidence. Once it is determined on appeal that a “finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction * * * [an appellate court] should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.” Id. (citations omitted). Application of this analysis reveals that the result reached by the Appellate Division was correct.
In concluding that “the evidence of record [does] not support the conclusion that the traumatic injuries suffered by respondent directly caused his ultimate disability, either alone or in conjunction with his underlying, preexisting arthritic condition,” ante at 188, the majority relies upon the following findings of the hearing examiner:
The uncontradicted medical opinion is that Petitioner suffers from arthritis and that there is no causal connection between this illness and the two injuries he has suffered during his course of employment. Arthritis does not arise from a traumatic event involving a mishap or accident where there is an application of an external force to, or violent exposure of, the body. It is not the result of an external force or a violent exposure, [emphasis added]
This determination that the medical opinion was “uncontradicted” is clearly erroneous. Not only did the hearing officer overlook evidence to the contrary, but the very physician who testified at the hearing that there was no causal relation had submitted a contradictory prior report to the examiner.
*192 At the hearing the only medical testimony presented was that of Dr. William Kruger. Dr. Kruger testified that Gerba’s “continuing difficulty [was] due to arthritis in his neck and lower back,” and that neither of his injuries contributed to the progression of the arthritis because “trauma does not cause or stimulate arthritic changes.” See also ante at 179. But in the agency’s disability evaluation report, which was admitted into evidence at the hearing, Dr. Kruger indicated that there was a “probable” causal connection between the injuries and the disability. The report further reads in relevant part:
There is no question that the episode of 1964 was an accident, but whether such a trauma contributed to severe osteoarthritis causing disability so many years later is very difficult to state. With respect to the fall in 1973, it appears that the initial injuries were not sufficient to cause him to to lose work, but he has been [sic] symptoms ever since. The Medical Board believes that the injury to the shoulder and neck in 1964 probably at least contributed to the development of osteoarthritis, and we believe that the fall in 1973 added to the sum total of his difficulties. Prior to that time led [sic] to increasing symptoms so that he finally became disabled in 1975. Therefore, we believe that the two episodes described, while not actually causing his disability, contributed to the underlying condition or contributed to the symptoms produced by the underlying condition and leading to his present state of being totally and permanently disabled, [emphasis added]
The accidents in 1964 and 1973 were described in the report as “contributing” or “adding” to the employee’s underlying condition. The doctor’s statement that the accidents did not “cause” the condition is at best professional advocacy and at worst sheer sophistry. In any event, the examiner’s finding of “uncontradicted” evidence is unsupportable.
Gerba was not represented by counsel at his hearing. As a result, there was no cross-examination of Dr. Kruger, and his prior report was not explored during the hearing. However, the report was introduced into evidence and this constitutes part of the record on appeal. Viewing Dr. Kruger’s testimony and his written report together, it is clear that there was a definite causal connection between Gerba’s disability and his two accidents. Because the only medical evidence which supports the hearing officer’s finding of no causal relation is the self-contradictory testimony of Dr. Kruger, that finding patently is not supported by “sufficient credible evidence.”
*193 Further evidence in the record indicates another conflicting medical opinion. The report of Dr. LaPilusa, which was also admitted into evidence at the hearing, replied “yes” to the question on the agency’s form which asked whether the petitioner was disabled as a direct result of a traumatic event. Dr. LaPilusa explained that “[t]he trauma in 1964 can be an aggravating factor in his present condition.” Again, it is manifest that by definition an “aggravating factor” can produce as a “direct result” permanent and total disability.
It should be noted that in the hearing officer’s report, which found no causal relationship between the disability and the traumatic events, no mention was made of the “combined-effect” standard of Cattani , see 69 N.J. at 586 , discussed infra at 194. It is likely that the hearing officer overlooked the evidence demonstrating a clear causal relationship between the accidents and the disability because he did not appreciate the relevance of contributing factors under the “combined-effect” test.
In the name of judicial deference, the majority has sanctioned an abuse of an agency’s adjudicatory powers. By rejecting agency decisions that are arbitrary, capricious or unreasonable, or that lack support in sufficient credible evidence, a reviewing court places the only limits on administrative discretion short of drastic legislative intervention. This function of the judiciary in the formation of administrative policy is as important as it is well-settled. It is a function that the majority has failed to perform in this case. An agency decision which describes medical evidence rife with inconsistencies as “uncontradicted” is an arbitrary and capricious decision. The majority chooses to ignore this; as a result, an agency may now in turn ignore inconvenient conflicts in evidence without fear of reversal. I cannot subscribe to such an unwholesome development in the administrative law of this State.
The conclusion is inescapable that the hearing officer’s finding as to causation “is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction * * State v. Johnson, 42 N.J. at 162 . Based *194 on the foregoing examination of the record, I find that there clearly was a causal connection between the traumatic events and claimant’s disability.
II
I also conclude that Gerba’s disability was the “direct result” of the two traumatic events which he suffered. This follows from the Court’s decision in Cattani . Although declining to discuss whether the disability at issue in that case was a direct result of the alleged traumatic event, the Court stated the following:
[A] basis for an accidental disability pension would exist if it were shown that the disability directly resulted from the combined effect of a traumatic event and a preexisting disease. [ 69 N.J. at 586 (emphasis added)]
The meaning of this dictum was explored in In re Sigafoos, 143 N.J. Super. 469 (App.Div.1976), certif. den., 72 N.J. 458 (1976). In that case the claimant suffered from a preexisting “back condition” when he twisted his back necessitating medical treatment and hospitalization and resulting in disability. The court noted that the preponderant medical evidence was that the traumatic event aggravated the claimant’s condition. Id. at 473 . In finding that the claimant’s “disability ‘directly resulted from the combined effect of a traumatic event and a preexisting disease,’ ” id. at 474 (quoting Cattani, 69 N.J. at 586 , the court maintained:
Cattani makes it clear that disability which is the end result of a prior musculo-skeletal condition may not be the basis of an accidental disability pension, even though the disability is aggravated or accelerated by work effort alone. That is not the case here. Nor is this case one where the end result, i. e., the total and permanent disability, would have occurred when it did irrespective of the traumatic event. [ 143 N.J.Super. at 473 ]
In granting the benefits sought, the court also deemed it significant “that the Medical Board * * * listed as ‘Probable’ the ‘cause and effect relationship of the described activity or incident to the present disability.’ ” Id. As mentioned above, it is equally significant that the Medical Board report listed the causal relationship as “Probable” in the present case.
The same logic was found persuasive in Still v. Board of Trustees, PERS, 144 N.J.Super. 103 (App.Div.1976), certif. den., *195 73 N.J. 46 (1977). In that case, claimant injured his back in 1965, but suffered no symptoms of back pain until 1971 when he fell from a sweeping machine. Although experiencing pain and receiving medical treatment after his fall, he continued to work until 1973. At that time he became totally disabled. The medical testimony showed that the “claimant’s disability was caused by a combination of the trauma and the [preexisting] osteoarthritic changes in the lumbar spine * * Id. at 107 .
It is readily apparent that Gerba was disabled under the “combined-effect” standard expressed in Cattani . The Board’s own physician stated that Gerba’s “injury to the. shoulder and neck in 1964 probably at least contributed to the development of osteoarthritis, and * * * that the fall in 1973 added to the sum total of his difficulties.” He also opined that the two accidents “contributed to the underlying condition or contributed to the symptoms produced by the underlying condition * Thus, it is manifest that the two accidents and the osteoarthritis in the present case fall precisely within the meaning of the “combined-effect” standard as correctly interpreted by Still and Sigafoos.
The majority today, however, drastically narrows the meaning of the Cattani “combined-effect” test. To support its restrictive views on causation, it erroneously relies upon the following language from Cattani :
The present provision that it must be shown that the person “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” means much more than disability resulting from the aggravation or acceleration of a preexisting disease even though unusual or excessive work effort is involved. [ 69 N.J. at 585 (emphasis added)]
See ante at 187-188. This language does not suggest that the aggravation or acceleration of a preexisting condition directly resulting from a traumatic event fails to meet the statutory standards. Rather, it means only that “unusual or excessive work effort” cannot constitute a “traumatic event” even if that work effort directly results in the aggravation or acceleration of a preexisting disease. This observation relates solely to the first *196 element of the statutory standard—whether there is a “traumatic event.” This is made evident by the additional explanation in Cattani that when combined with a traumatic event, a preexisting disease can form the basis for an accidental disability pension. Id. at 586 , see supra at 180. Nonetheless, the Court asserts on the ostensible authority of Cattani that the traumatic event must be the “essential significant or substantial contributing cause of the disability,” ante at 187. Without such a finding, a traumatic event will not supply the basis for accidental disability—even though it acts directly in combination with an underlying condition.
Such a severely restrictive definition of “direct result” requires the Court to be blind to the fact that the two accidents were indeed contributing factors in causing the claimant’s disability. The Court’s view also ignores the fact that prior to the second fall in 1973, the osteoarthritis was a relatively latent condition which the claimant could handle with little difficulty and no disability. The effect of trauma upon latent conditions was discussed in Hillman v. Board of Trustees, 109 N.J.Super. 449 (App.Div.1970)—a case repeatedly cited by the majority. There the court allowed recovery where a traumatic event aggravated a preexisting arteriosclerotic heart disease. In so holding, the court maintained:
There can be no question that petitioner’s present disability is a “direct result” of the traumatic event. As this court said in Titman, “the word ‘direct’ connotes relative freedom from remoteness, whether in terms of time, intervention of other attributive causes or the like, or a combination of such factors.” 107 N.J.Super., at 247. The heart attack made chronic what had previously been an asymptomatic condition. [ 109 N.J.Super. at 461 ]
Gerba’s situation is not a case “where the end result, i. e., the total and permanent disability, would have occurred when it did irrespective of the traumatic event.” Sigafoos, 143 N.J.Super. at 473 . I continue to adhere to my opinion in Cattani :
[A]n unwillingness to recognize a previously unmanifested condition as the direct result of a traumatic event because of its preexisting potentiality to become symptomatic is as logically fallacious as designating life to be a terminal illness because death may be inevitable. [ 69 N.J. at 596 (Pashman, J., dissenting)].
The fact that Gerba continued to work as a security guard after his 1973 accident until September 1975 does not negate the *197 direct causal relationship between the latter traumatic event and his disability. The evidence demonstrates that until 1973, Gerba was able to cope with his condition fairly well. However, after his second accident he became increasingly less able to function. Although he worked for a time as a security guard, he was described as employed in a “sheltered environment on the basis of the sympathy of a benevolent employer.” Thus, Gerba’s continued employment does not detract from the fact that his earlier accidents caused a disabling aggravation of his dormant underlying condition. See Still, 144 N.J.Super. at 105-106 .
Ill
If the majority consistently accepts the agency’s findings of fact, much of what it states in its decision is properly dicta. The hearing examiner’s report, which the Division of Pensions adopted in its entirety, found “no causal connection between [petitioner’s] illness and the two injuries he has suffered during his course of employment” (emphasis added). The majority affirms this finding as supported by sufficient credible evidence, see ante at 189. It thus becomes unnecessary to consider the type of causal relationship that would have permitted recovery of the higher disability pension. The rule that the majority formulates in this case emerges from a gratuitous, abstract discussion; the practical difficulties of its application are best illustrated by the majority’s opinion in Korelnia v. Board of Trustees, PERS, 83 N.J. 163 (1980).
Relying on existing precedents, I conclude the evidence clearly shows that claimant’s disability resulted from the “combined-effect” of his two work-related accidents and his preexisting osteoarthritis. It was therefore the “direct result” of a “traumatic event” as required by N.J.S.A. 43:15A—43. Even if claimant’s two accident are perceived as mere aggravating factors, relief would nevertheless be warranted since the latter accident transformed a relatively latent condition into a crippling disability. Because the majority’s disposition of this case unjustifiably deprives Joseph Gerba of benefits to which he is entitled, I *198 dissent and would affirm the judgment of the Appellate Division.
For reversal —Chief Justice WILENTZ and Justices SULLIVAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK— ,6’
For affirmance—Justice PASHMAN—1.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701614. Public record. Not legal advice.