The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3494-21
LISA GAPPA,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
TEACHERS' PENSION
AND ANNUITY FUND,
Respondent-Respondent.
___________________________
Submitted January 9, 2024 – Decided January 30, 2024
Before Judges Enright and Paganelli.
On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury.
Bergman & Barrett, attorneys for appellant (Michael T.
Barrett, of counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Sara M. Gregory, Assistant Attorney
General, of counsel; Payal Y. Ved, Deputy Attorney
General, on the brief).
PER CURIAM
Lisa Gappa appeals from a June 3, 2022 final agency decision of the Board
of Trustees of the Teachers' Pension and Annuity Fund (Board) denying her
application for accidental disability retirement benefits (ADRBs). We affirm.
I.
On May 1, 2017, Gappa was working as a teacher in an elementary school
when she slipped and fell on a wet floor in the school cafeteria. She injured her
lower back, the right side of her buttocks, and her right thigh, hip, and elbow.
Although Gappa received conservative treatment for her injuries, including
steroid medication, physical therapy, and epidural injections, her back pain
continued. She did not return to full-time or modified work following the
incident.
In 2017, Dr. Arik Mizrachi, a pain management and rehabilitation
specialist, evaluated Gappa and concluded she had "a history of back pain" and
experienced "lower pelvic pain and lower lumbar spine pain" after the May 1
incident. He also concluded she had a pre-existing spinal condition—
spondylolisthesis—"at L5-S1."
In 2018, Dr. David J. Lamb, an orthopedic surgeon, evaluated Gappa and
determined she had "a long history of preexisting mechanical low back pain"
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and was under the care of a doctor since she was in a car accident in 2001. Dr.
Lamb also noted she was "managing her back and leg pain with chiropract[ic
care], anti[-]inflammatories, and activity restriction." Dr. Lamb concluded
Gappa was a "candidate for surgery" because of her "preexisting lumbar
[degenerative joint disease] and spondylolisthesis, [which was] acutely
exacerbated by [the] slip and fall injury at work."
Dr. Nirav K. Shah, a neurosurgeon, examined Gappa in 2018 and
determined she had "a history of low back pain [since] 2001" and "was in a car
accident [and] . . . hurt her neck and lower back at the time." Dr. Shah reported
Gappa underwent treatment following the car accident "and did not have a
complete resolution of her symptoms," but "at the time of her [2017] fall[,] she
was . . . able to perform activities of daily living without restrictions." Dr. Shah
opined Gappa "ha[d an] aggravation injury to her pre-existing lumbar
spondylolisthesis" and "would benefit surgically from anterior L5-S1
decompression and fusion to readjust disk height, then same day posterior
decompression and fusion."
In June 2018, Drs. Elliot Sambol, Shah, and Seth Joseffer performed an
"[a]nterior lumbar interbody fusion [at] L5-S1." After the surgery, Dr. Sambol
wrote a report describing the procedure, wherein he stated Gappa "suffered a
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work-related accident . . . while working as a teacher" but "ha[d] a history of a
motor vehicle accident many years ago which resulted in back pain and
discomfort."
In May 2019, Gappa applied to the Board for ADRBs. On March 5, 2020,
the Board denied her application, but granted her ordinary disability retirement
benefits, finding she was permanently and totally disabled from her job as a
teacher. The Board also concluded her "reported disability [wa]s the result of a
pre-existing disease alone or a pre-existing disease that [wa]s aggravated or
accelerated by [her] work effort." Gappa appealed from the Board's decision,
and the Board transmitted the matter to the Office of Administrative Law for a
contested hearing.
Before the Board denied Gappa's ADRB application, she submitted to an
independent medical examination (IME) in December 2019 with Dr. Andrew M.
Hutter, M.D., an orthopedic surgeon. Dr. Hutter reviewed records from Drs.
Mizrachi, Sambol, and Shah and concluded Gappa was "totally and permanently
disabled from the performance of her job as a teacher." He also reported that
"[a]lthough [Gappa] denied having any major problem with her back in the past,
there [wa]s documentation she had an MRI of her lumbar spine in 2015," "just
two years before the [fall] in question." But because Dr. Hutter could not
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4
determine if Gappa's disability was a direct result of the 2017 fall, he requested
additional treatment records and copies of Gappa's prior MRIs so he could
supplement his report.
In fact, Dr. Hutter prepared two addendums to his initial report after
reviewing additional records regarding Gappa's medical history, including her
MRIs from 2001 and 2015, and her chiropractic records from 2015. He noted
her 2001 MRI showed "a pars defect at L5 bilaterally," and her other records
demonstrated Gappa had "pre-existing lower back problems." Thus, Dr. Hutter
opined "within a reasonable degree of medical probability" that "her disability
was not the direct result of the May 1, 2017 accident," but rather, her fall
"exacerbated an underlying condition at the same level, L5-S1."
In March 2021, Dr. David Weiss, an orthopedist, evaluated Gappa and
issued a report based on his IME. Acknowledging he reviewed reports from
Drs. Mizrachi, Lamb, and Shah, Dr. Weiss stated Gappa's "past medical history
[wa]s remarkable for a motor vehicle accident in 2001 and a history of low back
pain." Additionally, Dr. Weiss referenced Gappa's 2015 MRI, finding it
"revealed bilateral L5 spondylolysis with new grade I anterolisthesis of L5 on
S1," among other conditions. Further, he reported her 2017 MRI revealed "a
spondylolisthesis seen L5 over S1 with unroofing of the disc." Although he
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noted Gappa had "a history of lumbar spine pathology," Dr. Weiss concluded
her 2017 fall "did in fact cause [Gappa] to undergo a marked restriction in her
overall activities of daily living, . . . consistent with a permanent disability."
Thus, Dr. Weiss opined Gappa's permanent disability was "the direct result of
the . . . work[-]related injury of May 1, 2017."
On October 7, 2021, an Administrative Law Judge conducted a virtual
hearing. During the hearing, Gappa testified, and presented testimony from her
husband and Dr. Weiss. On cross-examination, Gappa admitted that her
chiropractic records showed she told her chiropractor as recently as October
2015 that her lower back pain was an "[eight] out of [ten]" on the pain scale.
During Dr. Weiss's testimony, he stated that after Gappa received
chiropractic care, she "became asymptomatic, had no restrictions in activities of
daily living[,] . . . and . . . was doing her job with no restrictions up until the day
of the" 2017 fall. He explained:
[I]f we look back at [20]11, we look back at the [20]15
MRI's, [Gappa] d[id] have a spondylolisthesis in the
[20]15 MRI, but it[ was] a grade one, and . . . that's why
in [20]15[, Gappa] did better with just receiving
chiropractic care . . . . After the [20]17 [fall, there was]
a change that [Gappa] develop[ed] spinal instability at
the L5-S1 level on top of that herniated disc at L5-
S1 . . . . [T]here [wa]s no recommendation of spine
surgery . . . before the [20]17 occurrence.
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On cross-examination, Dr. Weiss admitted he did not review various
medical reports before rendering his report, such as Gappa's 2001 MRI or Dr.
Mizrachi's May 2017 report. He also acknowledged Gappa "had a history of
lumbar spine pathology."
Dr. Hutter testified as the Board's expert and confirmed he reviewed
numerous medical records pertaining to Gappa's medical history, including
records preceding and post-dating her 2017 fall. He testified he specifically
reviewed her 2001 and 2015 MRIs, her "pain management" records, and Dr.
Shah's 2018 report. Dr. Hutter stated Dr. Shah noted Gappa had a "previous
history of low back pain in 2001 from a car accident," and "had pain
management, . . . and physical therapy without complete resolution of her
symptoms." Dr. Hutter also testified that Dr. Shaw opined Gappa had an
"aggravation injury to her pre-existing lumbar spondylolisthesis."
Additionally, Dr. Hutter stated Gappa's 2001 MRI revealed "a pars defect
at L5 bilaterally, which is what was seen in the MRI[]s that were done after the
accident as well," meaning "the defect in pars was there . . . almost [fourteen]
years prior to the" 2017 fall. Therefore, Dr. Hutter opined with "a reasonable
degree of medical certainty" that Gappa's 2017 injury "exacerbated an existing
A-3494-21
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problem" and her "disability was not the direct result of the May 1[], 2017
incident."
On April 5, 2022, the ALJ rendered an initial decision, recommending the
Board grant Gappa ADRBs. The ALJ found Drs. Hutter and Weiss were "both
well-qualified and testified professionally," but she "afford[ed] more weight to
Dr. Weiss's opinion that Gappa would not [have been] disabled from her regular
work responsibilities but for the slip and fall on May 1, 2017." The ALJ stated,
"[u]ndeniably, Dr. Weiss did not review all records addressing treatment after
the 2017 accident, including physical therapy notes, . . . post-surgical
hospitalization records[,] and other evaluations," but "Dr. Hutter had less
information than Dr. Weiss concerning Gappa's condition before the accident,
which is most critical to this case."
The ALJ further concluded there was "[n]o evidence . . . Gappa was
physically unable to work or engage in her usual activities, required epidurals,
underwent prolonged physical therapy, or received recommendations for back
surgery . . . before the 2017 accident." Additionally, the ALJ found "Dr. Hutter's
conclusion d[id] not consider Gappa's baseline status before the fall, . . . and
ability to perform her job and usual activities before the accident without
restrictions," so "Dr. Weiss's opinion of causality [wa]s more credible." Citing
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Gerba v. Board of Trustees, Public Employees' Retirement System, 83 N.J. 174,
186 (1980) and Petrucelli v. Board of Trustees, Public Employees' Retirement
System, 211 N.J. Super. 280, 289 (App. Div. 1986), the ALJ also concluded "a
preponderance of the credible evidence establishe[d] that the May 1, 2017[]
accident was the 'essential significant or substantial contributing cause' to
Gappa's ultimate disability."
On June 3, 2022, the Board denied Gappa's application for ADRBs. The
Board "rejected the ALJ's causation finding," and her "legal conclusion that . . .
Gappa [wa]s entitled to AD[RBs]." The Board found Gappa's "disability was
the result of a pre-existing condition and degenerative changes," reasoning that
her "condition was symptomatic for many years and demonstrably evident in the
MRI[]s and other objective testing years before the incident she claim[ed]
caused her disability." Additionally, the Board stated:
[T]he ALJ failed to give proper weight to the medical
records[,] which documented a long-standing history of
pre-existing degenerative conditions, [and] included
multiple references to [a] prior history of back pain and
pre-existing degenerative changes in [Gappa's] lumbar
spine. . . . Further, the ALJ failed to give proper weight
to both Dr. Weiss['s] and Dr. Hutter's[] conclusions that
the 2017 slip and fall incident intensified pre-existing
degenerative conditions. Many of . . . Gappa's treating
physicians commented on her "history of back pain"
and "pre-existing" lumbar pathology[,] and her own
physician's report that the incident exacerbated her pre-
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existing conditions. Moreover, Dr. Weiss conceded . . .
Gappa had a documented history of low back pain[] and
decided that the 2017 [fall] was an aggravation and
acceleration of prior injuries and pre-existing
conditions.
The Board also rejects the substantial weight the
ALJ gave to Dr. Weiss, given the fact that he made an
opinion without reviewing a large portion of . . .
Gappa's medical records yet admitted that the doctors
noted she had a history of low back pain. The
considerable amount of medical records that Dr. Weiss
neglected to review all established a history of
degenerative and symptomatic low back pain prior to
the 2017 incident.
. . . Dr. Hutter's testimony deserves greater
weight because he testified more reliably than Dr.
Weiss. . . . Dr. Hutter's conclusions were made in
harmony with . . . Gappa's medical history, her
radiological testing, and the opinions of her treating
physicians. Dr. Hutter also pointed out that the June
27, 2001 and October 30, 2015 MRIs of the lumbar
spine show[ed] the presence and progression of pre-
existing degenerative changes. . . . Therefore, Dr.
Hutter's conclusion about direct result is more
consistent with Gappa's treating physicians than Dr.
Weiss'[s] conclusion.
Further, the Board found Dr. Weiss's conclusion that the 2017 fall caused
Gappa's disability did "not fit with the facts in light of his diagnoses, which
characterize[d] her . . . condition as an aggravation of pre-existing pathologies
and degenerative changes." Therefore, the Board found Gappa's "pre-existing
condition[,] in conjunction with the aggravation by the 2017 incident[,]
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precludes a finding that the [2017 fall] directly resulted in her disability."
Finally, in rejecting the ALJ's finding that "but for the accident in 2017, Gappa
did not need spinal surgery, consistent with a lack of any prior surgical or
invasive treatment recommendations," the Board concluded "the ALJ applied
the incorrect legal standard to determine the issue of direct result."
II.
On appeal, Gappa argues that she is entitled to ADRBs because, consistent
with the standard enunciated in Gerba, she demonstrated her 2017 fall
constituted "the essential significant or the substantial contributing cause of the
resultant disability." Gerba, 83 N.J. at 187. We are not persuaded.
Our "review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re
Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision should be upheld
"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Ibid. (quoting Herrmann, 192 N.J. at
27-28). "A reviewing court 'may not substitute its own judgment for the
agency's, even though the court might have reached a different result.'" In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483
(2007)). "The burden of demonstrating that the agency's action was arbitrary,
A-3494-21
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capricious[,] or unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.
2006).
It is not unusual in disputes over ADRBs for there to be conflicting
medical opinions. Thus, in general, "[t]he credibility of the expert, and the
weight to be accorded [the expert's] testimony, is assessed by the trier of fact."
State v. Frost, 242 N.J. Super. 601, 615 (App. Div. 1990). It is also well settled
"[t]he weight to which an expert opinion is entitled can rise no higher than the
facts and reasoning upon which that opinion is predicated." Johnson v. Salem
Corp., 97 N.J. 78, 91 (1984). "However, the choice of accepting or rejecting the
testimony of witnesses rests with the administrative agency, and where such
choice is reasonably made, it is conclusive on appeal." Renan Realty Corp. v.
State, Dep't of Cmty. Affs., 182 N.J. Super. 415, 421 (App. Div. 1981).
We also accord deference to an agency's interpretation of the statutes it is
charged with enforcing. Thompson v. Bd. of Trs., Tchrs.' Pension & Annuity
Fund, 449 N.J. Super. 478, 483 (App. Div. 2017). "'Such deference has been
specifically extended to state agencies that administer pension statutes,' because
'a state agency brings experience and specialized knowledge to its task of
administering and regulating a legislative enactment within its field of
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expertise.'" Ibid. (quoting Piatt v. Bd. of Trs., Police & Firemen's Ret. Sys., 443
N.J. Super. 80, 99 (App. Div. 2015)). Still, we are not bound by the agency's
legal opinions. Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App
Div. 2001) (citation omitted).
Under the Teachers' Pension and Annuity Fund (TPAF) Law, N.J.S.A.
18A:66-1 to -93, a TPAF member is eligible for ADRBs if 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 [the member's] regular or
assigned duties." N.J.S.A. 18A:66-39(c). An applicant for ADRBs benefits
"must prove a disabling permanent . . . injury and, in so doing, must produce
such expert evidence as is required to sustain that burden." Patterson v. Bd. of
Trs., State Police Ret. Sys., 194 N.J. 29, 50-51 (2008).
In Richardson v. Board of Trustees, Police & Firemen's Retirement
System, our Supreme Court held that a pension claimant seeking ADRBs must
prove:
(1) that [they are] 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
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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; an[d]
(5) that the member is mentally or physically
incapacitated from performing his usual or any other
duty.
[192 N.J. 189, 212-13 (2007) (emphasis added).]
With respect to causation, the alleged traumatic event must be "the
essential significant or the substantial cause of the resulting disability." Gerba,
83 N.J. at 187. But "[w]here there exists an underlying condition . . . which
itself has not been directly caused, but is only aggravated or ignited[]by the
trauma, then the resulting disability is, in statutory parlance, 'ordinary' rather
than 'accidental' and gives rise to 'ordinary' pension benefits." Id. at 186.
Here, there was ample evidence in the record that: (1) Gappa had
extensive pre-existing degenerative conditions in her lumbar spine including
spondylolisthesis, which led to instability in her lumbar spine and eventually,
surgery; (2) she complained about lower back pain dating back to 2001, when
she was involved in a motor vehicle accident; and (3) she repeatedly sought
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treatment for her lower back pain well before her 2017 fall. Thus, we are
satisfied the Board's criticisms of the ALJ's fact-finding − including the ALJ's
assessment of the competing experts' opinions − were fair. And because we
cannot conclude the Board acted arbitrarily, capriciously, or unreasonably in
accepting Dr. Hutter's opinion over Dr. Weiss's opinion that Gappa's disability
was not the direct result of her fall in May 2017, we discern no basis to disturb
the Board's denial of Gappa's application for ADRBs.
To the extent we have not specifically addressed any other arguments
raised by Gappa, they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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