SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0450-17T2

JENNY STANKOWSKI,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, 

PUBLIC EMPLOYEES' 

RETIREMENT SYSTEM,

Respondent-Respondent.

_____________________________

Argued January 30, 2019 – Decided May 28, 2019

Before Judges Koblitz and Ostrer.

On appeal from the Board of Trustees of the Public 

Employees' Retirement System, Department of the 

Treasury, Docket No. 2-10-268003.

Jason E. Sokolowski argued the cause for appellant 

(Zazzali, Fagella, Nowak, Kleinbaum & Friedman, 

attorneys; Jason E. Sokolowski, of counsel and on the 

briefs).

Robert S. Garrison, Jr., Deputy Attorney General, 

argued the cause for respondent (Gurbir S. Grewal, 

Attorney General, attorney; Melissa H. Raksa, 

NOT FOR PUBLICATION WITHOUT THE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.
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Assistant Attorney General, of counsel; Robert S. 

Garrison, Jr., on the brief).

PER CURIAM

Petitioner Jenny Stankowski appeals from the final decision of the Public 

Employees' Retirement System (PERS) Board of the Trustees, denying her 

application for accidental disability retirement benefits. The Board found that 

Stankowski did not suffer a disabling injury. We reverse and remand for further 

proceedings.

I.

Stankowski worked as a public school custodian in Winslow Township

for about twenty-five years before she injured her back in March 2008. As she 

attempted to fold two large tables in a media center, the tables suddenly 

collapsed. Stankowski jerked away to avoid getting hit. She immediately felt 

back pain. She reported the injury the next day, and filed for workers'

compensation benefits. She was out of work until September 2008. 

Before the accident, as set forth in her job description, Stankowski moved 

furniture, operated heavy equipment like floor buffers, and lifted objects up to 

fifty pounds daily. When she returned to work after the accident, she did none 

of those things. She worked light duty, cleaning tables and chairs, and 

performing other tasks less physically demanding than before the accident. She 
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also depended on help from other custodians. After the end of the school year 

in 2010, she was laid off because the school district privatized custodial services. 

She stopped actual work in May of that year, and used vacation time until the 

layoff date the following month. Stankowski has not worked since.

In October 2011, roughly a year and a half after she was let go, Stankowski 

applied for accidental disability benefits. The Board denied her application and

Stankowski appealed. After a contested hearing at which she and two experts 

testified, an Administrative Law Judge issued an initial decision granting her

application. But, upon further review, the Board rejected the ALJ's decision and 

denied the application.

1

 

The case presented a battle of the experts. The Board's expert, Arnold 

Berman, M.D., opined that Stankowski did not suffer a disability. Stankowski's 

expert, David Weiss, D.O., asserted she did, and the 2008 accident caused it. 

 

1 Four years elapsed between the Board's referral of the case to the Office of 

Administrative Law in April 2012, and the contested hearing. Another year 

passed before the ALJ's initial decision. The Board issued its decision on 

August 22, 2017.
4

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The experts based their opinions on their review of Stankowski's voluminous 

treatment record, and their respective examinations of Stankowski.2

Dr. Weiss's report detailed Stankowski's complaints. Stankowski told him 

that she had difficulty performing household chores such as cooking, cleaning, 

and shopping. She no longer participated in her favorite recreational activities 

such as fishing and shooting. She could not sit or stand for more than ten 

minutes without discomfort. She had trouble sleeping; walking could be a 

challenge; and lifting anything heavier than five pounds was problematic. She 

experienced chronic pain at level eight, on a scale of zero to ten.

Dr. Weiss testified that during his November 2013 examination, 

Stankowski manifested observable symptoms. During the sitting root test and 

leg raises, she experienced pain in her back and legs – symptoms indicative of 

radiculopathy. She had restricted motion and was tender along the lower back.

She was able to walk on her heels but not her toes. Dr. Weiss also noticed that 

 

2 The experts' reports were somewhat dated by the time of the Spring 2016 

hearing. Dr. Weiss issued his expert report in November 2013. Dr. Berman 

prepared his expert report almost two years earlier, in January 2012. Dr. Berman 

supplemented his report with a two-page letter in October 2014, which he 

prepared without the benefit of an additional physical examination. Dr. Berman 

briefly noted that he reviewed additional records, all dated before 2012, plus Dr. 

Weiss's 2013 evaluation, and they did not change his mind. 
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Stankowski walked with a limp. He did not observe any overt signs of symptom 

magnification.

Dr. Weiss also relied on diagnostic-imaging tests conducted during the 

years following the accident. An MRI taken shortly after the accident in 2008

showed herniation of discs in the lower spine. Another MRI in 2011 showed 

continued degeneration of the lower disc spaces. Electromyographies (EMGs) 

in 2008 and 2011 also showed evidence of radiculopathy. Discograms in 2011, 

which involved inserting dye into targeted disc spaces, showed severe 

degeneration on the L4-5 and L5-S1 discs. It also confirmed that those discs 

were the source of Stankowski's pain.

Dr. Weiss concluded that Stankowski would be unable to satisfy the 

"postural or functional" duties of her custodian job. However, he was unaware 

that Stankowski had returned to work for two years after the accident, albeit on 

light duty. Asked if she could lift up to twenty pounds "on a daily basis as part 

of her job," Dr. Weiss testified she could do so "occasionally," based on a 

functional capacity evaluation (FCE) that was prepared in August 2008.3 He 

 

3 The FCE consisted of numerous physical tests that analyzed Stankowski's gait, 

ability to lift, push and pull objects, and to maintain balance. The evaluation 

also said that Stankowski appeared to exert sub-maximal effort. Neither party 

questioned the validity of Stankowski's 2008 FCE, although the testifying 
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concluded that Stankowski was able to perform light duty, but "[t]he problem 

is, the job is not light duty." Dr. Weiss added that he thought the injury was 

caused by the 2008 accident because she did not express any symptoms before 

then.

By contrast, Dr. Berman testified that Stankowski did not present physical 

symptoms during his hands-on evaluation in January 2012. Although 

Stankowski complained of lower back pain that travelled down her legs, Dr. 

Berman testified that she demonstrated good flexibility and did not present much 

pain during the exam. Dr. Berman did not find any symptoms of radiculopathy 

during Stankowski's leg raises either. He found that she could walk on her toes 

and heels without problem, which was also inconsistent with radiculopathy. He 

 

physicians expressed doubts. While Dr. Weiss stated that FCEs "are still 

considered to be the gold standard for testing a patient's capacity," he noted the 

absence of definitive studies in the medical literature to corroborate the 

evaluations. Dr. Berman testified that "everyone takes these kind of [studies] 

tongue-in-cheek." See Cheryl L. Anderson, Comparative Evidence or Common 

Experience: When Does "Substantial Limitation" Require Substantial Proof 

Under the Americans with Disabilities Act?, 57 Am. U. L. Rev. 409, 462 (2007)

("Despite the claim that FCEs lead to 'objective information' about an 

individual's functional abilities, the reliability of the various systems used to 

measure functional capacity have been the subject of debate in the professional 

literature. The methodology each FCE system uses to determine impairment has 

not been adequately studied."). 
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determined that Stankowski had "subjective complaints of pain without 

objective findings clinically." 

He also reviewed Stankowski's imaging results. Although they showed 

abnormalities, he said the results needed to be correlated with clinical findings 

from a hands-on evaluation to have any significance. He explained that not all 

individuals showing abnormalities in diagnostic tests actually manifest 

symptoms such as pain. Without clinical correlation, an individual might 

experience "minor symptoms, [that will] go on forever, but they won't be 

disabling."

Dr. Berman noted in his report that Stankowski had worked for almost 

two years after the accident. His report did not expressly state whether 

Stankowski performed light or regular duty upon her return. He admitted in his 

testimony that he was unaware she only worked light duty. Although he testified 

that he did not recall his examination of Stankowski, he insisted in his testimony 

that Stankowski told him that she worked "at a full-duty level" and did not say 

she had any assistance.4 

 

4

 In his report, Dr. Berman wrote, "The member is not totally and permanently 

disabled for the duties of her occupation of Custodian because she returned to 

Active Duty for two years following the injury without difficulty and was laid 

off with the rest of her department and did not stop working because of the injury 

of 03/03/08." 
8

A-0450-17T2

Dr. Berman concluded that the degenerative changes shown in

Stankowski's imaging results were likely from a pre-existing condition, and not 

a traumatic event. The damage shown in the 2008 and 2011 MRIs would only 

show after years of degeneration. He dismissed the MRI and EMG results as 

false positives, and gave little weight to the discogram results as reflective of a 

disability. He noted that three of Stankowski's treating physicians all believed 

that she was capable of working after the accident. Dr. Berman concluded that 

Stankowski did not need further treatment. She could return to work and should 

be able to participate in all "activities of daily living."

Stankowski testified about the kinds of duties she performed before and 

after the accident. She testified that she worked through pain upon her return to 

her job after the accident. She experienced a burning sensation down her right 

leg, partly on her left leg, and pain in her back. She said she filed for disability 

in October 2011 because she "realized that [she] really couldn't work any more 

. . . because [she] was in too much pain." She asserted that as a result of the 

pain, she ceased participating in activities she enjoyed before the accident, such 

as baking, cooking, hunting, and canoeing. 

The ALJ found that Stankowski suffered a permanent, disabling injury, 

which was caused by the 2008 accident, and she had been experiencing pain 
9

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ever since. The ALJ found Stankowski's testimony credible. The ALJ also 

found Dr. Weiss's testimony more persuasive than Dr. Berman's. Dr. Weiss 

incorporated Stankowski's medical history into his conclusions while Dr. 

Berman discounted it. The diagnostic imaging showed abnormalities, which 

were correlated with Stankowski's repeated, but failed attempts at medical 

intervention to lessen her pain. The ALJ noted that Dr. Berman was under the 

mistaken impression that Stankowski had returned to work at regular duty. The 

ALJ concluded, "There are no accommodations that could be made to permit the 

petitioner to continue working [as a custodian]." 

The PERS Board rejected the ALJ's initial decision, "based on expert 

testimony to conclude that Ms. Stankowski is not disabled as a direct result of a 

traumatic event . . . ." The Board found Dr. Berman more persuasive because 

he "relied upon objective medical records and testing," particularly his clinical 

examination, which found no correlation between the imaging results and a 

disability. The Board concluded that Dr. Weiss placed undue weight on 

Stankowski's "subjective complaints." The Board was persuaded by Dr. 

Berman's opinion that the EMG tests are often inaccurate, and the MRI results 

reflected long-term degeneration, not a traumatic cause. The Board noted that 

Stankowski's history of working light duty showed that accommodations could 
10 A-0450-17T2

be made for her. The Board noted that two of her treating physicians concluded 

that she was capable of working. 

Notwithstanding its findings regarding the experts' opinion, the Board did 

not disturb the ALJ's finding that Stankowski testified credibly. The Board 

stated, "The Board modifies the ALJ's factual findings that are not pertinent to 

lay-witness credibility . . . ." Nonetheless, after noting that Stankowski returned 

to work in 2008 after a six-month absence, the Board asserted, "Ms. Stankowski

denied being unable to perform her job duties."5

II.

On appeal, Stankowski contends that she is entitled to accidental disability

retirement benefits. To be eligible, a petitioner must show five elements.

1. That he [or she] 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 and assigned duties;

4. that the disability was not the result of the member's 

willful negligence;

 

5

In support of this assertion, the Board cited not Stankowski's testimony, but a 

portion of Dr. Weiss's testimony in which he stated that Stankowski could not

perform the job requirements of a custodian. The Board also referred to exhibit 

"P-19," although the record included only thirteen plaintiff's exhibits.
11 A-0450-17T2

5. that the member is mentally or physically 

incapacitated from performing his usual or any other 

duty.

[Richardson v. Bd. of Trs., Police & Firemen's Ret. 

Sys., 192 N.J. 189, 212-13 (2007); N.J.S.A. 43:15A43.]

Only the first two elements are at issue in this case: whether Stankowski has a 

permanent disability caused by a workplace accident. A petitioner has the 

burden to prove that he or she is entitled to disability retirement benefits and 

"must produce such expert evidence as is required to sustain that burden." See

Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 51 (2008)

(addressing alleged mental disability). 

Stankowski contends that she is permanently and totally disabled as a 

result of the 2008 accident. She argues that the Board's decision was contrary 

to the evidence in the record. In short, she contends the ALJ got the case right 

and the Board got it wrong. Alternatively, Stankowski asserts that she should 

be eligible for ordinary disability retirement benefits, which are less generous

than accidental disability benefits. See Patterson, 194 N.J. at 43; compare

N.J.S.A. 43:15A-45 (allowance for ordinary disability retirement under PERS) 

with N.J.S.A. 43:15A-46 (allowance for accidental disability retirement under 

PERS). The legal test for ordinary disability benefits still requires a petitioner 
12 A-0450-17T2

to prove a disability. Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity 

Fund, 164 N.J. 564, 573-74 (2000); N.J.S.A. 43:15A-42 (ordinary disability 

retirement under PERS). However, a petitioner does not need to prove that the 

disability was caused by a workplace accident. Kasper, 164 N.J. at 573-74.

Our scope of review is limited. We will not disturb the Board's decision 

"unless there is a clear showing that it is arbitrary, capricious, or unreasonable, 

or that it lacks fair support in the record." Russo v. Bd. of Trs., Police & 

Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Although we may have reached a 

different decision, we cannot simply substitute our judgment for the Board's. In 

re Stallworth, 208 N.J. 182, 194 (2011); Clowes v. Terminix Int'l, Inc., 109 N.J. 

575, 587-88 (1988).

However, we will not "rubber stamp" an agency decision that is "clearly 

erroneous." In re Adoption of Amendments to Ne., Upper Raritan, Sussex and 

Upper Delaware Water Quality Mgt. Plans, 435 N.J. Super. 571, 584 (App. Div. 

2014). We need not affirm an agency's decision if we have "a definite conviction 

. . . that a mistake must have been made" for example, by "the obvious

overlooking or underevaluation of crucial evidence . . . ." 613 Corp. v. State, 

Div. of State of Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986).
13 A-0450-17T2

We are also mindful that the Board itself was reviewing the ALJ's initial 

decision. The ALJ had the opportunity to consider live witness testimony. The 

Board may not reject the ALJ's findings as to a lay witness's credibility unless 

it determines, based on its review of the record, that the findings are arbitrary, 

capricious or unreasonable or not supported by sufficient competent and credible 

evidence. N.J.S.A. 52:14B-10(c). The Board is less constrained in reviewing 

findings based upon expert witness testimony, although it must still "state with 

particularity the reasons" for rejecting such findings. See ZRB, LLC v. N.J. 

Dep't of Envtl. Prot., 403 N.J. Super. 531, 561 (App. Div. 2008) (quoting 

N.J.S.A. 52:14B-10(c)).

We consider whether Stankowski was permanently disabled. She 

essentially argues that Dr. Berman's findings overlooked and underevaluated her 

medical history. We agree that Dr. Berman minimized the significance of 

Stankowski's extensive rounds of treatment and evaluations in 2008 and 2011. 

Furthermore, the Board's finding that Stankowski was able to work rested on a 

questionable evidential foundation. Also, the Board failed to reconcile its 

acceptance of Stankowski's testimony with its rejection of Dr. Weiss's opinion 

in favor of Dr. Berman's. In light of these defects in the Board's decision, we 

remand for further consideration.
14 A-0450-17T2

Essential to Dr. Berman's opinion was his clinical examination that belied 

Stankowski's complaints of radiculopathy and disabling pain. We agree that 

Stankowski's complaints required clinical verification. Stankowski's diagnostic 

imaging results were insufficient to confirm a disabling injury unless they were 

correlated with clinical findings. See In re Hurt, 355 P.3d 375, 381 (Wy. 2015) 

(reciting the AMA Guides, which say conditions such as radiculopathy can only 

be diagnosed if the diagnostic imaging correlates with clinical findings).

However, in addition to the MRI, EMG and discograms – which Dr. 

Berman opined were false positives or of little probative value – Stankowski 

submitted to multiple clinical examinations in 2008 and 2011, which correlated 

her imaging results with clinical findings. Contrary to Berman's own brief 

examination, these physicians found that Stankowski suffered radiculopathy and 

back pain. Doctors Kahn and Corda wrote reports in 2008 and 2011 describing 

Stankowski's presentation during hands-on physical examinations. She had 

restricted motion, walked with a limp, had back pain and showed leg pain 

consistent with radiculopathy. Drs. Mitchell and Lowe, in 2011, saw similar 

symptoms during their hands-on evaluations. Dr. Weiss saw Stankowski and 

she manifested physical symptoms during her examination with him.
15 A-0450-17T2

The value of an expert's opinion is bounded by the facts and reasoning 

underlying the opinion. State v. Jenewicz, 193 N.J. 440, 466 (2008). Dr. 

Berman did not adequately explain the contrary clinical findings of multiple 

treating physicians, nor did the Board adequately explain its acceptance of Dr. 

Berman's conclusion in light of his omission. 

The Board concluded that Stankowski was able to work, because she 

returned, after her accident, on light duty in 2008 until she was laid off. The 

Board stated, "Ms. Stankowski's ability to work under an accommodation means 

that she is not permanently and totally disabled from performing her job duties." 

This conclusion lacks fair support in the record for three reasons.

First, the Board's finding that Stankowski "denied being unable to perform 

her job duties," is simply unsupported by the record the Board cites: the 

testimony of Dr. Weiss, who actually testified to the opposite; and an exhibit 

that does not exist. 

Second, the Board misplaced reliance on Stankowski's condition in May

2010, when she ceased work because of the lay-off, and not pain. Stankowski 

sought disability retirement benefits almost a year and a half later, when, she 

said, she was unable to work because of the pain. 
16 A-0450-17T2

Third, Dr. Berman noted that two of Stankowski's treating physicians 

opined in 2011 that she could return to light duty work. Stankowski's doctors 

primarily relied on the FCE and her prior ability to work light duty. Putting 

aside the questioned reliability of the FCE's methodology, the Board provides 

no basis for concluding that the FCE's determination in 2008 that Stankowski 

was capable of performing light duty was still valid when Stankowski filed for 

benefits more than three years later, despite the degenerative nature of her 

condition. Stankowski testified that she worked through pain in 2008 to 2010. 

Roughly a year and a half after she stopped work, she concluded that she could 

not return, even if a job were available. In other words, her condition had 

worsened to the point that she could not perform even under light duty 

conditions.

Finally, the Board's decision is subject to challenge because the Board did 

not disturb the ALJ's finding that Stankowski was a credible witness. Since that 

finding involved an "issue[] of credibility of lay witness testimony," the Board 

could not reject or modify it "unless it is first determined from a review of the 

record that the findings are arbitrary, capricious or unreasonable or are not 

supported by sufficient, competent, and credible evidence in the record." 
17 A-0450-17T2

N.J.S.A. 52:14B-10(c); see, e.g., In re Adoption of Amendments, 435 N.J. 

Super. at 584. The Board made no such requisite determination. 

Nonetheless, the Board credited Dr. Berman's testimony that Stankowski's

2008 injury did not leave her disabled. That testimony was inherently 

inconsistent with Stankowski's own lay witness testimony in 2016. She stated 

she was in constant pain; she worked through pain when she returned to work in 

2008; and by 2011, she concluded that she was unable to work under any 

conditions. 

The Board was obliged to explain its internally inconsistent findings. " It 

has long been recognized that '[o]ne of the best protections against arbitrary 

exercise of discretionary power lies in the requirement of findings and reasons 

that appear to reviewing judges to be rational.'" In re Hawley, 98 N.J. 108, 115 

(1984) (quoting K. Davis, Administrative Law, § 16.12, at 585 (1970 Supp.)). 

Absent such an explanation, we are constrained to conclude that the decision 

was arbitrary and capricious.

In light of these defects in the Board's decision, we reverse and remand 

for further consideration. We emphasize the issue is not whether Stankowski 

was totally disabled when she stopped working in May 2010, but whether she 

was disabled when she applied for accidental disability benefits in October 2011 
18 A-0450-17T2

and thereafter. Finally, in light of our remand, we do not reach the issue 

whether, if Stankowski is deemed totally and permanently disabled, the 2008 

accident was a sufficient cause to qualify for accidental, as opposed to ordinary 

disability retirement benefits. See Gerba v. Bd. of Trs. Pub. Emps.' Ret. Sys., 

83 N.J. 174, 186 (1980) (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 an underlying 

condition, such as osteoarthritis, is an "ordinary" disability); N.J.S.A. 43:15A43 (stating that "permanent and total disability resulting from a . . . musculoskeletal condition which was not a direct result of a traumatic event occurring 

in the performance of duty shall be deemed an ordinary disability").

Reversed and remanded for further consideration. We do not retain 

jurisdiction.