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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3741-11T3

KEVIN BAXTER,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

_______________________________________ February 28, 2013 Argued January 9, 2013 - Decided

Before Judges Ashrafi and Hayden.

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On appeal from the Board of Trustees, Police and Firemen's Retirement System, Docket No. 3-10-38429.

Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, L.L.C., attorneys; Mr. Gaylord, on the brief).

Chris M. Tattory, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Tattory, on the brief).

PER CURIAM Kevin Baxter, a corrections officer retired on disability, appeals from a final decision of the Board of Trustees of the Police and Firemen's Retirement System ("Board" or "PFRS") denying his claim for a higher level of pension benefits that applies to accidental disability retirement. We affirm the Board's decision. Baxter was a corrections officer for thirteen years until 2008. When he began his employment, he was diagnosed with sickle cell anemia. In 2005, he suffered a sickle cell crisis and was hospitalized with an infection related to his condition, but he returned to work. In February 2007, he injured his ankle while restraining an inmate who was involved in a fight. The examining doctor diagnosed sprain and strain of the lower ankle, a temporary injury that should have healed within a few weeks, but Baxter remained out of work for several months. An MRI of Baxter's ankle in April 2007 revealed avascular necrosis, a progressive debilitating condition in which the lack of sufficient blood flow deprives bone cells of oxygen and causes them to die. People with sickle cell anemia are at risk of developing avascular necrosis. Baxter underwent surgery on the ankle in August 2007. He finally returned to work in November 2007. Back at his job in January 2008, Baxter had to run in response to a "code," and he felt pain in his ankle. He left work and never returned.

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In September 2008, at the age of forty-one, Baxter applied to PFRS for accidental disability retirement, claiming that his disability was caused by the February 2007 accidental injury. The PFRS granted Baxter regular disability retirement, but it denied the higher level of benefits payable if the disability had been caused by a traumatic event on the job. Baxter appealed, and a hearing was held before an Administrative Law Judge (ALJ). Baxter testified, as well as a doctor for each side. Medical records were also placed in evidence, including the records of Baxter's treating surgeon. Subsequently, the Board adopted the ALJ's decision approving regular disability retirement but denying accidental disability retirement benefits. On appeal before us, Baxter acknowledges the highly deferential standard of review that we exercise from an administrative adjudication. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We will reverse such a decision of an administrative agency only if it is contrary to law or arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Despite this limited standard of review, Baxter contends that the Board erred in failing to follow the holdings of relevant case law and in concluding that his disability was not a direct result of the February 2007 accidental injury he suffered. The statute applicable to Baxter's claim, N.J.S.A. 43:16A-7, permits a retirement allowance for accidental disability provided that the claimant "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." [Emphasis added.] Baxter argues that the Board failed to apply the holdings of Gerba v. Board of Trustees, 83 N.J. 174 (1980), and Petrucelli v. Board of Trustees, 211 N.J. Super. 280 (App. Div. 1986), when it concluded that his disability was not a direct result of the February 2007 accidental injury. In Gerba, supra, 83 N.J. at 187, the Court stated that a "traumatic event need not be the sole or exclusive cause of the disability" as long as it is "the direct cause." The claimant must prove that the traumatic event was "the essential significant or substantial contributing cause of the disability." Ibid. The Court ultimately concluded in Gerba that the retirement board had not erred in finding the claimant's preexisting arthritic back was the direct cause of his disability and not the two accidental falls he had suffered

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over a period of years on the job. Id. at 188-89. The Court held that the claimant was not entitled to accidental disability benefits because "the traumatic event [only] contributed to the progression of that [arthritic] condition presumably by aggravation." Id. at 189. In Petrucelli, supra, 211 N.J. Super. at 282-83, this court considered whether a claimant who slipped and fell down a flight of stairs was entitled to accidental disability benefits. After the accident, an x-ray revealed that the claimant suffered from the pre-existing condition of "spondylolisthesis, a previously nonsymptomatic condition involving a forward slipping" of a vertebra. Id. at 288. The specific question was whether the claimant's back ailments and the ensuing disability were a direct result of the accidental fall while performing his job duties or of degenerative but "non-symptomatic arthritic and structural changes" of the claimant's back. Id. at 285. At the time of the accident, the claimant in Petrucelli was forty-nine years old and had never suffered any back problems previously. He had enjoyed an active life and had performed "fairly heavy labor" during his work experience. Id. at 288. We held the claimant had proven an accidental disability by "a severe trauma, superimposed on a nonsymptomatic structural anomaly, which triggered a symptom complex resulting in total disability." Id. at 289. Baxter contends his condition was the same as the claimant in Petrucelli. He asserts he did not have any symptoms of the pre-existing avascular necrosis before the February 2007 accidental injury. He had not been diagnosed with that condition and his sickle cell anemia did not impair him such that he was unable to perform his duties as a corrections officer. Baxter's factual arguments are supported by the evidentiary record, but they do not lead inevitably to a conclusion that his ankle injury directly caused his disability. In Richardson v. Board of Trustees, 192 N.J. 189 (2007), the Court revisited the standards by which a claimant must prove an accidental disability. The Court discussed the history of the statutory requirements for accidental disability retirement in comparison to worker's compensation laws. Id. at 196200. In particular, it reviewed the development of the law as to claimants with pre-existing heart conditions who suffered heart attacks while on the job and made claims for accidental disability pensions or benefits. Id. at 197. The Court reviewed and confirmed its prior decision in Cattani v. Board of Trustees, 69 N.J. 578, 581 (1976), where accidental disability benefits were denied to a firefighter who performed unusually strenuous work that accelerated his pre-existing heart disease. Richardson, supra, 192 N.J. at 202. The

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Court stated: "the statute requires a happening external to the worker (not pre-existing disease alone or in combination with work)." Ibid. The primary issue in Richardson was not the medical cause of the claimant's disability but what constitutes an accident or traumatic event within the meaning of the statute. Id. at 194. Still, as Baxter concedes, the Court's definitive description of the elements of accidental disability is applicable to the disputed causation issue before us. In Richardson, the Court held: [T]o obtain accidental disability benefits, a [claimant] must prove:

1. that he is permanently and totally disabled;

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

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

4. that the disability was not the result of the member's willful negligence; and

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

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

The parties agree that their dispute involves only application of item 2c listed above, whether
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Baxter's disability was or was not "the result of pre-existing disease that is aggravated or accelerated by the work." If Baxter's disability was the direct result of a pre-existing disease, he is not entitled to accidental disability benefits. The question must be answered without neglecting the holdings of Gerba, supra, 83 N.J. at 187, and Petrucelli, supra, 211 N.J. Super. at 289, that a traumatic event need not be the sole or exclusive cause of the claimant's disability. The two doctors who testified before the ALJ, and the treating surgeon, all agreed that the avascular necrosis was a condition that pre-existed the February 2007 injury and that it was a cause of Baxter's permanent disability. They also agreed that the February 2007 incident aggravated or accelerated Baxter's condition. But even Baxter's own examining doctor did not attribute his permanent disability only to the February 2007 traumatic event. He conceded that the January 2008 running incident also aggravated the pre-existing injury and caused Baxter's permanent disability. In that regard, the ALJ and the Board took into consideration that Baxter returned to full-time work duty in November 2007, and he left the job permanently only after further aggravation of his ankle. In these factual circumstances, the ALJ and the Board did not err in concluding that Baxter's pre-existing avascular necrosis was the direct cause of his disability, and that the accidental ankle sprain and strain of February 2007, like the January 2008 incident, aggravated the pre-existing disabling condition but was not its direct cause. The ALJ's and the Board's findings were supported by substantial credible evidence in the record. Applying our deferential standard of review, we find no basis to disturb the Board's conclusion as either contrary to the law or otherwise arbitrary, capricious, or unreasonable. Baxter was granted a regular disability pension but is not entitled to the higher level of accidental disability benefits. A
1

ffirmed. 1 As we stated at the time of oral argument, we commend both counsel for filing well-prepared briefs that focus upon and discuss succinctly the disputed issue. Counsel's briefs are effective because they analyze the precise disputed issue and avoid irrelevancies and weak legal positions.

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