DIANE L. MENNA - v. BOARD OF TRUSTEES PUBLIC EMPLOYEES RETIREMENT SYSTEM -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4210-08T1

DIANE L. MENNA,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES' RETIREMENT

SYSTEM,

Respondent-Respondent.

___________________________________

October 15, 2010

Argued September 27, 2010 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 1023702.

James M. Clancy argued the cause for appellant (Bafundo, Porter, Borbi & Clancy, LLC, attorneys; Mr. Clancy, on the brief).

Kellie L. Kiefer Pushko, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Pushko, on the brief).

PER CURIAM

This case involves a claim by a former State employee for accidental disability retirement benefits under N.J.S.A. 43:15A-43. The employee, Diane L. Menna ("appellant"), appeals a final agency decision of the Board of Trustees of the Public Employees' Retirement System ("the Board") dated March 19, 2009, denying her claim. Based upon our limited scope of review of such administrative decisions, we affirm.

Appellant was employed as a family service specialist at the Division of Youth and Family Services ("DYFS"). As part of her job functions, appellant inspected foster homes and conducted parenting training. She spent about fifty percent of her work hours doing paperwork and other administrative tasks. In addition, appellant had to drive to various work sites, and transport items such as training manuals, videos, and books.

The workplace incident that underlies appellant's present claim for benefits occurred on November 6, 2002. According to appellant, while she was moving boxes during renovations to her workspace, she fell and struck a desk and a metal office divider. Appellant injured her left shoulder in the course of her fall. At the time of the incident, appellant was fifty-four years of age.

Following the November 2002 incident, appellant was treated for her left shoulder injury by both her family doctor and an orthopedic specialist. When her condition failed to improve after physical therapy, appellant underwent arthroscopic shoulder surgery in early February 2003. Her post-surgical treatment included resumed physical therapy, steroid injections, and pain medication.

Appellant attempted to return to work for DYFS, assuming the duties of an administrative assistant. However, that position required significant use of the telephone, which exacerbated her shoulder pain. In addition, her prescribed pain medications diminished her ability to concentrate. Consequently, appellant stopped working in July 2004. She was thereafter awarded Social Security disability benefits and workers' compensation.

Prior to her fall at work on November 6, 2002, appellant had already been diagnosed and treated for numerous significant medical conditions, including problems with her left shoulder. In April 1992, appellant had surgery on her left shoulder to alleviate pain attributed to degenerative changes. In September 1998, appellant was in a work-related motor vehicle accident, in which she injured that same shoulder. She was in a second work-related motor vehicle accident in January 1999, in which her neck and lower back were injured. Appellant acknowledged that these prior injuries and medical conditions pre-existed the November 6, 2002 accident, but she contended that they only caused her occasional pain and she was still able to do her job.

Appellant's instant claim for accidental disability benefits from the November 6, 20021 incident was initially rejected by the Board on the grounds that the incident did not comprise a qualifying "traumatic event" under the statute. Subsequently, the Board reconsidered its assessment, in light of the Supreme Court's supervening opinion in Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007), which clarified the statutory definition of a "traumatic event." Appellant's claim was then referred to an Administrative Law Judge ("ALJ") for a hearing, as described by the ALJ, to determine whether she was "totally and permanently disabled as a result of the [November 6, 2002 incident]."

At the one-day administrative hearing in September 2008, the ALJ heard testimony in support of the claim from appellant and her expert, Ralph G. Cataldo, D.O., a specialist in pain management and anesthesiology. The Board presented expert testimony from Zoher Stark, M.D., an orthopedic surgeon who examined appellant on February 2, 2006.

Dr. Cataldo, who was not appellant's treating physician, had initially examined her in July 2002 to evaluate her medical limitations resulting from the 1998 and 1999 motor vehicle accidents, apparently in connection with a claim for workers' compensation. At the time of that July 2002 examination, which preceded the subject accident of November 2002, Dr. Cataldo noted scarring from appellant's 1992 shoulder surgery, decreased range of motion of her left shoulder, weakness in appellant's left arm, numbness and gripping problems in her left hand, and assorted other symptoms in appellant's neck and back. Dr. Cataldo found that, at the time of the July 2002 examination, appellant had a sixty-five percent disability of her left shoulder. He further described appellant as seventy percent disabled in her cervical spine, ninety-five percent disabled in her lumbar spine, and fifty percent disabled in her left hand.

Dr. Cataldo reexamined appellant in May 2006 following the subject incident of November 2002. He also reviewed the reports of MRI studies of her left shoulder that were performed in December 2002 and in November 2004, which revealed a partial tear in appellant's left rotator cuff. Dr. Cataldo's examination noted appellant's continuing shoulder problems, which included restricted range of motion and weakness in her left arm. He found no improvement resulting from appellant's arthroscopic surgery in 2003. Dr. Cataldo also noted appellant's unsuccessful attempt to resume her work at DYFS.

Based upon his 2006 evaluation, Dr. Cataldo concluded that appellant was permanently and totally disabled as a result of the November 6, 2002 incident, and that she displayed a fifty-five percent disability associated with her left shoulder. Although he acknowledged that appellant had pre-existing injuries and osteo-arthritis, Dr. Cataldo noted that she had tolerated her pain before the November 2002 incident. He opined that had that incident not occurred she would have been able to continue to perform the essential duties of her job.

The Board's medical expert, Dr. Stark, diagnosed appellant with degenerative joint disease in her left shoulder. He further diagnosed her with degenerative joint disease in her hands and knees, and degenerative disc disease in her cervical and lumbar spine. Dr. Stark concluded that the November 6, 2002 incident had not caused her permanent and total disability.

After hearing the proofs, the ALJ issued an initial decision on November 13, 2008. The ALJ concluded that, "despite the evidence of prior injury and surgery to her left shoulder," appellant had satisfied the statutory requirements to receive accidental disability benefits stemming from the November 6, 2002 workplace incident. In the course of her decision, the ALJ underscored the fact that appellant had been able to perform her job duties, albeit with occasional pain, before the November 2002 incident, and that, following that incident, her condition had worsened.

The Board disagreed with the ALJ's recommendation. In its final agency decision, the Board concluded that the November 6, 2002 incident was not "the substantial contributing cause of [appellant's] total and permanent disability," which appellant had the burden of proving under N.J.S.A. 43:15A-43 and relevant case law. The Board found that the ALJ had applied an incorrect legal standard in assessing the medical evidence by substantially hinging her analysis upon Dr. Cataldo's testimony that, but for the November 2002 incident, appellant would still be able to perform the essential duties of her job. Instead of such a "but for" approach, the Board focused upon the severity and persisting nature of appellant's pre-existing conditions, as documented by Dr. Cataldo's prior evaluation in July 2002, at which time he found that appellant had a sixty-five percent disability to her left shoulder, as well as a host of other disabling conditions.

Appellant argues on appeal that the Board erred in denying her claim for benefits, and that it should have instead adopted the ALJ's recommendation. In assessing that argument, we must bear in mind that the scope of our review of the Board's administrative agency decision is limited. In re Hermann, 192 N.J. 19, 27 (2007). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Id. at 28.

Applying that deferential scope of review here, we are satisfied that there is substantial credible evidence to support the Board's ultimate conclusion of ineligibility, and that its decision is neither arbitrary, or capricious, or unreasonable. In doing so, we do not overlook the ALJ's role as an administrative factfinder. Although the ALJ's decision did correctly recite the statutory standard for eligibility for accidental disability benefits under N.J.S.A. 43:15A-43, the Board reasonably found that the substance of the ALJ's analysis focused too much upon appellant's inability to return to work after the November 2002 incident, and too little upon the extensive and severe nature of appellant's pre-existing shoulder injuries that Dr. Cataldo himself had diagnosed four months before the accident as producing a sixty-five percent disability in her left shoulder.

The applicable statute had been repeatedly construed by our courts to require that the subject workplace accident be a "direct" cause of the claimed disability. Titman v. Bd. of Trs., Teachers' Pension & Ret. Fund, 107 N.J. Super. 244, 247 (App. Div. 1969); see also Korelnia v. Bd. of Trs., Pub. Empls. Ret. Sys., 83 N.J. 163, 170 (1980). Although in some circumstances an accidental disability injury can arise from both trauma and a pre-existing injury, "the trauma, while it need not be the sole or exclusive causative agent, must at the very least be the essential significant or the substantial contributing cause of the disability." Korelnia, supra, 83 N.J. at 170 (citing Gerba v. Bd. of Trs. Pub. Empls. Ret. Sys., 83 N.J. 174, 186 (1980)). Given the considerable extent of appellant's prior disability to her shoulder, the Board did not misapply its expertise in concluding that appellant had not sustained her burden of proof.

Affirmed.

1 In her initial application, appellant also sought benefits for injuries caused by the September 1998 and January 1999 motor vehicle accidents. However, appellant withdrew her claims relating to those accidents after it became apparent that they had not been timely filed. See N.J.S.A. 43:15A-43 (prescribing a five-year time limitation for such claims, subject to a limited exception).