Torres v. Bd. of Trs.
| Decision Date | 18 March 2019 |
| Docket Number | DOCKET NO. A-0596-17T2 |
| Parties | ROBERT TORRES, Petitioner-Appellant, v. BOARD OF TRUSTEES, STATE POLICE RETIREMENT SYSTEM, Respondent-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Fisher, Geiger and Firko.
On appeal from the Board of Trustees of the State Police Retirement System, SPRS No. 8-10-4478.
Elliott J. Almanza argued the cause for appellant (Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys; Elliott J. Almanza, of counsel and on the briefs).
Christopher R. Meyer, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher R. Meyer, on the brief).
Petitioner Robert Torres appeals from a final decision of respondent Board of Trustees (the Board) of the State Police Retirement System (SPRS), denying his application for accidental disability retirement benefits pursuant to N.J.S.A. 53:5A-10. We affirm.
The Board does not dispute petitioner is permanently disabled from working as a State Trooper. The primary issue in this case is whether petitioner's disability is causally related to a motor vehicle accident while on duty or a degenerative pre-existing condition. We therefore begin with a discussion of petitioner's relevant athletic pursuits, employment history, and the physical demands of employment as a State Trooper generally and as a member of a K-9 unit specifically.
Petitioner entered the New Jersey State Police (NJSP) Academy in June 2004 and graduated from the physically demanding, twenty-six-week program in December 2004. After completing various assignments he was transferred to Atlantic City International Airport and applied to become a member of the K-9 unit. Petitioner was selected and enrolled in the K-9 patrol school course; a sixteen-week program involving rigorous physical training, including running,jumping, tracking individuals, apprehending individuals, and carrying and handling the dogs. Petitioner graduated and was assigned to the K-9 unit. Following graduation from the K-9 academy, petitioner was required to maintain that level of physical fitness and participate in recertification on a monthly basis.
Petitioner played four years of varsity baseball in high school and four years of Division I baseball at Monmouth University. He also played summer baseball in a men's league after college. Petitioner worked in construction prior to becoming a State Trooper.
Petitioner contends he never had any problems with his back, left hip, or left leg prior to being injured in a February 20, 2010 motor vehicle accident (the accident) while on duty. On that date, petitioner was injured when he was struck by an intoxicated motorist while reentering his patrol car on the Atlantic City Expressway. The patrol car was parked on the shoulder with its emergency lights on. The drunk driver fled the scene and was apprehended later.
Petitioner contends the intoxicated motorist's vehicle made contact with both the left side of his body and the open driver's-side door of his troop car. As a result of the impact, the door sprang back in the opposite direction, striking petitioner on his left side.
Shortly after the accident, petitioner was transported to the Emergency Department at Atlantic City Medical Center. His chief complaints involved the left side of his body, including his left arm, shoulder, back, knee, hip, and thigh area. Notably, petitioner did not suffer any fracture, dislocation, laceration, abdominal injury, chest injury, or head injury. He was treated with anti-inflammatory medications and sent home. However, within two days of the accident, petitioner saw a NJSP physician because of continued pain in his left shoulder, left hip, left knee, and lumbar spine. He was placed on temporary limited duty and prescribed anti-inflammatory medication.
Petitioner was thirty-four years old at the time of the accident. Following an investigation, the accident was deemed non-preventable, and petitioner was not at fault.
At the direction of the NJSP physician, petitioner was referred to Advantage Occupational Medicine. During his initial examination on February 23, 2010, petitioner described his lower back as his worst injury. Petitioner attended prescribed physical therapy for approximately four to six weeks. Petitioner was also continued on anti-inflammatory medication. Toward the conclusion of his physical therapy, petitioner continued to report "anterior thigh pain" and "pain within the left hip joint anterolaterally." Sheryl E. Timpanelli,APN, believed petitioner was suffering from "an unusual, nonetheless late onset of sciatic distribution pain or lumbar neuropathy on the left side."
In early April 2010, Dr. Joseph Bernardini, an orthopedic surgeon, examined petitioner and reviewed a Magnetic Resonance Imaging (MRI) of petitioner's lumbar spine and an x-ray of his pelvis. Dr. Bernardini noted a negative straight leg raising test. He observed "early degeneration of the L4-L5 disc and a slight bulge" on the MRI. The x-ray of petitioner's pelvis showed "femoral head deformity and a dysplastic socket with moderately severe osteoarthritis" of the left hip. Dr. Bernardini diagnosed moderately severe left hip osteoarthritis and changed petitioner's medication.
Approximately six weeks after the accident, petitioner returned to full duty for over seven months. For the first five months, petitioner performed his duties with no impediments. In November 2010, he returned to Dr. Bernardini because of continued hip pain. Dr. Bernardini noted petitioner's left hip condition was "already existing" at the time of the accident and was "probably aggravated by the condition and demand of his work." An MRI performed at that time revealed "[a]dvanced left hip joint osteoarthritis, likely post-traumatic from remote trauma."
Petitioner's condition worsened and, for the first time in his career, he was unable to perform the annual physical testing for State Troopers. In July 2011, he requested approval for an alternate testing procedure using a stationary bike rather than running.
In December 2011, Dr. Bernardini opined petitioner's pre-existing osteoarthritis condition was aggravated by the accident, and his symptoms were progressively worsening. Physical examination and x-rays revealed progression of the arthritis and rapid deterioration of the left hip. Dr. Bernardini found the deformation of the hip and arthritic changes to the remaining articular cartilage had worsened since the last x-ray was taken six months earlier. Petitioner exhibited left leg shortening of about one inch and a stiffer range of motion.
With regard to whether the progression of the hip arthritis was causally related to the accident, Dr. Bernadini noted he was limited to the information on file and petitioner's self-reporting. After reiterating the "arthritis of the left hip is of a pre-existing nature," Dr. Bernardini stated it was "possible" the accident "is responsible for exacerbation of the condition, for his current complaints and his current findings." He was unable "to retrospectively sep[a]rate his previous condition and the role it has played on his present situation."
Petitioner obtained a second opinion from another orthopedic surgeon, Dr. John A. Cristini, in January 2012. Dr. Cristini determined petitioner's hip arthritis had reached "endstage condition" leaving "total hip replacement arthroplasty" as the only option. He opined petitioner:
Dr. Cristini also noted a negative straight leg raising test result and that the 2010 MRI "revealed some mild disc desiccation at the L4-5 level."
In late January 2012, petitioner saw Dr. Fabio Orozco, an orthopedic surgeon specializing in hip replacement surgery. Dr. Orozco performed a complete left hip replacement in March 2012. Following surgery, petitioner participated in rehabilitation and physical therapy. At first, Dr. Orozco reported petitioner's hip was "progressing really well" and he was "able to ambulate without assistance," with little to no hip discomfort. Dr. Orozco noted petitionerwas experiencing lower back discomfort to the point it affected his activities of daily living and ability to walk for long distances.
In May 2012, Dr. Orozco noted petitioner was recovering well and participating in physical therapy, but had Dr. Orozco recommended continued physical therapy and that petitioner remain out of work for an additional four weeks with follow-up to assess his progress.
The following month, Dr. Orozco noted petitioner "still has some discomfort especially lower back area pain, but minimal discomfort on his left hip." One month later, Dr. Orozco concluded petitioner had achieved "maximum medical improvement in regard to his left total hip arthroplasty," so he recommended proceeding with a functional capacity evaluation (FCE).
The FCE was terminated prematurely because petiti...
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