SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1357-18T3

JASON PRENDEVILLE,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

Argued January 22, 2020 – Decided

Before Judges Gilson and Rose.

On appeal from the Board of Trustees of the Police and 

Firemen's Retirement System, Department of the 

Treasury, PFRS No. 3-85947.

Arthur J. Murray argued the cause for appellant 

(Alterman & Associates, LLC, attorneys; Stuart J. 

Alterman, of counsel; Arthur J. Murray, on the brief).

Laura Drahushak, Deputy Attorney General, argued the 

cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Donna Arons, Assistant Attorney 

General, of counsel; Laura Drahushak, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

February 11, 2020
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PER CURIAM

Jason Prendeville appeals a final decision of the Board of Trustees, Police 

and Firemen's Retirement System (PFRS). The Board adopted the initial

decision of the Administrative Law Judge (ALJ), denying Prendeville's 

application for accidental disability retirement benefits. The ALJ found, and the 

Board agreed, Prendeville was not permanently and totally disabled from 

performing his duties as a corrections officer, and his disability claim was not 

the direct result of a traumatic event. Because we conclude the Board's decision 

"is supported by sufficient credible evidence on the record as a whole," R. 2:11-

3(e)(1)(D), we affirm.

In July 2015, Prendeville applied for accidental disability retirement 

benefits, claiming he suffered from post-traumatic stress disorder (PTSD), postconcussion syndrome, and other cognitive and neurological deficits following 

an incident that occurred nearly two years prior. At the time of the incident, 

Prendeville was working as a senior corrections officer for the Juvenile Justice 

Commission. The facts pertaining to that event are essentially undisputed. 

Prendeville was injured when he attempted to quell a melee involving 

approximately thirty youthful-offender inmates. He was struck in the head by 

"something" that caused blood to "gush[] from [his] nose at a high rate." 
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Prendeville was treated in the emergency room for head, nose, and neck injuries; 

he did not lose consciousness; he neither sustained broken bones nor required 

stitches. Shortly thereafter, Prendeville claimed he experienced anxiety attacks 

and cognitive and neurological deficits. He did not return to work. 

The Board denied Prendeville's application. Following denial of 

Prendeville's reconsideration application, the matter was transmitted to the 

Office of Administrative Law as a contested case. 

During the ensuing two-day testimonial hearing before the ALJ, 

Prendeville testified on his own behalf and presented the testimony of George 

A. Peters, Ph.D., an expert in neuropsychology, and Vasko K. Gulevski, M.D. 

an expert in neurology. At the time of the hearing, both experts were still 

treating Prendeville in connection with his worker's compensation claim. Drs. 

Peters and Gulevski agreed that Prendeville is permanently and totally disabled. 

The Board presented the competing testimony of its experts: Mark J. Chelder, 

Ph.D., a neuropsychology expert, and Steven M. Lomazow, M.D., a neurology 

expert. The Board's experts opined Prendeville is not disabled and can return to 

work. The ALJ also considered documentary evidence, including the experts' 

reports and Prendeville's medical records. 
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The ALJ discussed at length the testimony adduced at the hearing, which 

is part of the record. The evidence required the ALJ to assess Prendeville's 

credibility and to determine which party's medical experts were more credible. 

Although he noted Prendeville "appeared to be a credible witness," the 

ALJ ultimately determined Prendeville "embellish[ed] the facts of the incident 

and the credible expert testimony of Dr. Chelder established that [Prendeville] 

was magnifying his symptoms." Indeed, the ALJ observed Prendeville did not 

stutter or exhibit any memory issues while testifying during the hearing. Those 

observations were contrary to Prendeville's testimony that his "[s]tuttering . . . 

manifest[ed] under stress" and his "memory was horrible"; he "would be in the 

middle of a conversation and forget what [he] was saying . . . ." 

Turning to his assessment of the experts, the ALJ recognized all four 

"medical experts proved to be credible, competent witnesses." Citing the 

general rule we espoused long ago in a workers' compensation case, the ALJ 

aptly observed a treating physician's testimony should be accorded more weight 

than an evaluating physician when the medical evidence is in conflict. See

Bialko v. Baker Milk, Co., 38 N.J. Super. 169, 171-72 (App. Div. 1955). The 

ALJ recognized, however, that "this guidepost [was] not unwaivable" and noted 

that other factors to consider in exposing "weaknesses" in expert testimony 
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included whether the expert's "conclusions [were] based largely on the 

subjective complaints of the patient or on a cursory examination," or were 

"support[ed] in the records from other physicians . . . ." See Angel v. Rand 

Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961). With those legal 

principles in view, the ALJ ultimately determined the Board's experts "presented 

a more logical and persuasive opinion as to the issue of permanent and total 

disability and [Prendeville]'s ability to perform the functions and duties of his

job." 

Assessing Prendeville's experts, the ALJ afforded both witnesses the 

consideration to which they were entitled as his treating physicians, finding 

"they presented credible and sincere testimony" and "their opinions were 

influenced by [Prendeville]'s subjective complaints that were strengthened by 

the objective findings." But, the ALJ concluded "their findings were conclusory 

in nature and ill supported by any concrete evidence." 

For example, the ALJ cited various concerns with Dr. Peters' testimony, 

particularly during cross-examination:

Dr. Peters noted that although Prendeville complained 

of many issues with intellectual function, his actual 

scores on the test were high-normal. Also, 

[Prendeville's] complaints about speech were not 

supported by [Dr. Peters'] findings when he noted that 

Prendeville was "fluent and engaged in conversation." 
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. . . [Dr. Peters also] indicate[d] that he was relying on 

Prendeville's history as reported to him. In fact, Dr. 

Peters noted that he was "not a detective" and "I don't 

ask for corroboration" of any information provided. 

Conversely, the ALJ cited examples of Dr. Chelder's testimony, 

describing the results of the personality assessment test that a neuropsychologist 

had administered to Prendeville. Those results "revealed a tendency toward mild 

symptom exaggeration. As such, test findings would need to be interpreted with 

caution as they may have overestimated levels of psychological dysfunction." 

Dr. Chelder "did not believe that there were ongoing issues related to postconcussive syndrome as the evidence for concussion was limited." Accordingly, 

the ALJ accepted Dr. Chelder's "objective findings" underscoring the expert's 

conclusion that: "Prendeville was . . . not permanently and totally disabled from 

performing his job as a corrections officer with respect to his psychological 

functioning. There was insufficient evidence of a disabling psychological 

disorder due to the findings of symptom exaggeration on personality testing."

Considering the testimony of the opposing neurological experts, the ALJ

noted both doctors found no objective evidence that Prendeville suffered a 

concussion. Regarding Prendeville's expert, the ALJ observed, "On crossexamination, Dr. Gulevski conceded that [Prendeville]'s motor exam was normal 

along with the sensory examination. In fact, no records confirm the fact that 
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Prendeville suffered a concussion[;] only the self-reporting by Prendeville 

himself." Similarly, on behalf of the Board, Dr. Lomazow cited "[t]wo MRIs of 

the brain demonstrat[ing] very mild nonspecific white matter changes" to 

support his conclusion that "[t]here is absolutely no objective evidence with 

respect to a concussion." Instead, Dr. Lomazow opined Prendeville exaggerated 

his symptoms. 

After Prendeville filed exceptions and the agency replied, the Board 

adopted the ALJ's decision "with modification."1 This appeal followed.

On appeal, Prendeville raises the following points for our consideration:

POINT I

THE . . . BOARD'S FAILURE TO GIVE GREATER 

WEIGHT TO THE TESTIMONY OF [DRS.] PETERS 

AND GULEVSKI GIVEN THE FACT THEY WERE 

TREATING EXPERTS AS OPPOSED TO [DRS.] 

CHELDER AND LOMAZOW, WHO WERE 

EXAMINING EXPERTS, LED TO A CLEARLY 

ERRONEOUS DETERMINATION.

POINT II

THE . . . BOARD'S FAILURE TO ACKNOWLEDGE 

THAT ITS EXPERT'S CONCURRENCE WITH 

1

 The Board's modification "reject[ed] statements" on one page of the ALJ's 

nineteen-page decision regarding an unrelated incident from another decision by 

the ALJ. Prendeville has not raised any concerns about those unrelated 

references. Having considered the entire record before the ALJ, our review is

not hampered by those references.
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BOTH [DRS.] PETERS AND GULEVSKI THAT 

PRENDEVILLE WAS NOT FIT TO BE 

DESIGNATED AS [MAXIMUM MEDICAL 

IMPROVEMENT (MMI)] AS OF THE DATE HE 

TESTIFIED, WHICH WAS MORE THAN [FOURAND-A-HALF] YEARS POST INCIDENT, LED TO 

A CLEARLY ERRONEOUS DETERMINATION.

POINT III

THE . . . BOARD'S FAILURE TO RECOGNIZE 

THAT PRENDEVILLE HAD ESTABLISHED ALL 

CRITERIA UNDER THE DSM-V FOR A 

DIAGNOSIS OF PTSD LED TO A CLEARLY 

ERRONEOUS RESULT.

A. [to E].[2] [DR.] CHELDER, THE BOARD'S HIRED

EXAMINING EXPERT, CONCURRED WITH [DR.] 

PETERS THAT PRENDEVILLE HAD 

ESTABLISHED CRITERIA A[, C, D, E, AND F] 

UNDER DSM-V FOR A DIAGNOSIS OF PTSD.

F. ALTHOUGH [DRS.] CHELDER AND PETERS 

DISAGREED OVER WHETHER OR NOT 

PRENDEVILLE HAD ESTABLISHED CRITER[ION]

B UNDER THE DSM-V FOR A DIAGNOSIS OF 

PTSD, THE MEDICAL RECORDS MOVED INTO 

EVIDENCE COUPLED WITH [DR.] PETERS' 

TESTIMONY SUBSTAN[T]IATE CRITERI[ON] B 

OF PTSD.

POINT IV

THE . . . BOARD SUBMITTED NO EVIDENCE TO 

REFUTE THE TESTIMONY THAT THE JUVENILE 

JUSTICE COMMISSION OFFERS NO RESTRICTED 

2

 We have condensed the related subpoint headings for the sake of brevity.
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DUTY OR LIGHT DUTY TO CORRECTIONS 

OFFICERS.

"Our review of administrative agency action is limited." Russo v. Bd. of 

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts 

presume the validity of the "administrative agency's exercise of its statutorily 

delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For 

those reasons, "an appellate court ordinarily should not disturb an administrative 

agency's determinations or findings unless there is a clear showing that (1) the 

agency did not follow the law; (2) the decision was arbitrary, capricious, or 

unreasonable; or (3) the decision was not supported by substantial evidence." In 

re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 

422 (2008). "The burden of demonstrating that the agency's action was 

arbitrary, capricious or unreasonable rests upon the [party] challenging the 

administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 

2006). 

"[T]he test is not whether an appellate court would come to the same 

conclusion if the original determination was its to make, but rather whether the 

factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of 

Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. 

Super. 74, 79 (App. Div. 1985)). "Where . . . the determination is founded upon 
10 A-1357-18T3

sufficient credible evidence seen from the totality of the record and on that 

record findings have been made and conclusions reached involving agency 

expertise, the agency decision should be sustained." Gerba v. Bd. of Trs., Pub. 

Emps.' Ret. Sys., 83 N.J. 174, 189 (1980), overruled on other grounds by

Maynard v. Bd. of Trs., Teachers' Pension & Annuity Fund, 113 N.J. 169 (1988). 

That said, appellate courts review de novo an agency's interpretation of a statute 

or case law. Russo, 206 N.J. at 27. 

Pursuant to N.J.S.A. 43:16A-7(a)(1), a PFRS member may apply for 

accidental disability retirement benefits. In Richardson v. Board of Trustees, 

Police & Firemen's Retirement Systems, 192 N.J. 189, 212-13 (2007), the Court 

held that a claimant for accidental disability retirement benefits 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; 
11 A-1357-18T3

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. 

Relevant here, the Court observed a "permanent and total disability" 

precludes an employee, due to mental or physical impairment, "from performing 

his own or any other available job." Id. at 195. An individual seeking accidental 

disability retirement benefits must prove a disabling permanent injury, and 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, 51 (2008). 

Applying these principles, we are satisfied the medical testimony and 

records support the ALJ's decision and the Board's adoption of that decision. 

We reject Prendeville's argument raised in point I of his brief that the Board 

erred by failing "to give greater weight" to the testimony of his treating 

physicians than the Board's non-treating experts. As stated above, the ALJ 

carefully examined the legal precedent, but found the Board's experts were more 

persuasive. Giving "due regard" to the ALJ's opportunity to hear the witnesses 

and judge their credibility, as we must, In re Taylor, 158 N.J. 644, 656 (1999), 

we defer to his credibility findings, which "are often influenced by matters such 

as observations of the character and demeanor of witnesses and common human 
12 A-1357-18T3

experience that are not transmitted by the record." State v. Locurto, 157 N.J. 

463, 474 (1999). 

We further note, the ALJ as the factfinder here, was not obligated to accept 

any expert's opinion, even if the expert was "impressive," State v. Carpenter, 

268 N.J. Super. 378, 383 (App. Div. 1993), and may accept some of the expert's 

testimony and reject the rest, Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. 

Div. 1993), even if that testimony is unrebutted by any other evidence, Johnson 

v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429, 438 (App. Div. 1997), 

particularly "when, as here, the factfinder is confronted with directly divergent 

opinions expressed by the experts," State v. M.J.K., 369 N.J. Super. 532, 549 

(App. Div. 2004). Importantly, "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. Affairs, Bureau of Hous. Inspection, 182 N.J. Super 415, 

421 (App. Div. 1981). 

According the appropriate deference to the ALJ's credibility 

determinations, we conclude there is substantial evidence in the record to 

support the ALJ's factual findings and legal conclusions, which the Board 

adopted. "We rely upon the expertise of the [Board] to separate legitimate from 
13 A-1357-18T3

illegitimate claims," Patterson, 194 N.J. at 51, and we are satisfied that the 

Board's "determination [here] is founded upon sufficient credible evidence seen 

from the totality of the record . . . ." Gerba, 83 N.J. at 189; R. 2:11-3(e)(1)(D).

We have considered Prendeville's remaining contentions in light of the 

record and applicable legal principles, and conclude they are without sufficient 

merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E). We add 

only the following brief comments regarding point II of his brief.

Prendeville contends the Board erred in finding he was not totally and 

permanently disabled because both of his experts and the Board's 

neuropsychologist opined Prendeville would not achieve MMI and he continues 

to receive workers' compensation benefits. Prendeville's argument is 

unavailing. Although a work-related injury may satisfy workers' compensation 

requirements, it does not necessarily constitute an "accidental disability" for 

pension retirement purposes where, as here, the credible medical evidence in the 

record indicates the injury was not the direct result of a traumatic event. Gerba, 

83 N.J. at 184.

Affirmed.