LISA TREZZA - 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NOT FOR PUBLICATION WITHOUT THE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-5778-08T35778-08T3

LISA TREZZA,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

_________________________________

Argued May 10, 2010 - Decided July 16, 2010

Before Judges Yannotti and Chambers.

On appeal from the Board of Trustees, Public

Employees' Retirement System, PERS No.

1164470.

Stephen E. Erickson argued the cause for appellant (Pegalis & Erickson, LLC, attorneys; Mr. Erickson, on the brief).

Jobil P. Cyriac, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Cyriac, on the brief).

PER CURIAM

Petitioner Lisa Trezza appeals from the decision of the Board of Trustees of the Public Employees Retirement System (the Board) dated July 16, 2009, denying her application for an accidental disability pension. She contends that she is entitled to an accidental disability pension because her post-traumatic stress disorder, which prevents her from working, is "the direct result of a traumatic event" she sustained in the workplace. Specifically, she maintains that her post-traumatic stress disorder was caused by an infection she contracted in the workplace. The Board denied her application determining that under the circumstances presented, Trezza does not meet the statutory requirements for an accidental disability pension. We agree and affirm.

These are the salient facts which the parties do not dispute. Trezza was employed as a counselor at the Special Treatment Unit of the Ann Klein Forensic Center (the STU) where part of her duties included regularly shaking the hands of persons confined there. At the time, she also worked part-time at a drug rehabilitation facility. On January 7, 2005, she experienced symptoms that led to a diagnosis of a methicillin resistant staphylococcus aureus (MRSA) infection which is potentially fatal. She was hospitalized for this condition from January 10, 2005, to January 15, 2005, and was so ill that she stated she was given her last rites. She recovered and returned to work on January 31, 2005. On March 21, 2005, she experienced further symptoms. She was diagnosed again with the infection and was treated for the condition.

In April 2005, after she recovered, Trezza attempted to return to work, but was unable to do so due to the fear of contracting the infection again. She was diagnosed with post-traumatic stress disorder due to these events. In a final administrative action dated September 17, 2007, the Merit System Board granted Trezza sick leave injury benefits for the period from January 2005 to January 2006, finding that she had contracted the MRSA infection in her workplace and that her post-traumatic stress disorder resulted from her contraction of MRSA.

Trezza applied for an accidental disability pension. The Board denied petitioner's application and petitioner appealed. The case was sent to the Office of Administrative Law and while the case was pending, the Supreme Court decided Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008) and Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007). The Board then reexamined petitioner's case in light of the new case law. It again denied her application on the basis that there was no factual evidence that she had contracted the infection in the performance of her duties. It determined that the infection was not a traumatic event that would qualify an employee for an accidental disability pension.

A hearing was held before an administrative law judge on Trezza's appeal. At that hearing, the parties stipulated that Trezza was permanently and totally disabled due to her post-traumatic stress disorder. The parties presented conflicting expert testimony on whether the infection was caused by Trezza's employment at the STU.

Trezza presented testimony from Dr. Robert Greifinger, an expert on prison health care, who testified that MRSA is more prevalent in correctional facilities than in the general community. He testified that, within a reasonable degree of medical certainty, Trezza contracted MRSA at the STU. The fact that there were no reported cases of MRSA at the STU did not change his opinion because individuals in the facility could be colonized with the bacteria but experience no symptoms.

The Board presented expert testimony from Dr. Stephen D. DeFronzo, an infectious disease expert, who testified that it was difficult to know when MRSA is transmitted because a person may be colonized for weeks to months without showing symptoms. He also stated that a drug rehabilitation facility had a higher transmission rate then a correctional facility.

The administrative law judge determined that it was more likely than not that Trezza contracted her infections at the STU. The administrative law judge also found that Trezza had sustained her burden of proving that her disability was due to a traumatic event as required by statute and concluded that she was entitled to an accidental disability pension.

The Board disagreed with the administrative law judge's determination, and denied Trezza accidental disability retirement benefits, concluding that she had failed to establish that her disability was the direct result of a traumatic event that occurred at the STU. Trezza appeals that determination to this court, raising the following issues:

POINT I

Petitioner's Conceded Total and Permanent Disability is the Direct Result of a Traumatic Event.

POINT II

Petitioner's Conceded Permanent and Total Disability is the Direct Result of her MRSA Infection.

POINT III

[The Administrative Law Judge's] Decision was Based on Sufficient Credible Evidence in the Record.

POINT IV

The Administrative Law Judge's Findings of Credibility were Supported by the Record.

POINT V

The PERS Board Erred in Finding that the ALJ's Initial Decision was Arbitrary, Capricious and Unreasonable.

POINT VI

Petitioner Suffered a "Physical-Mental" Injury Not a "Mental-Mental" Injury.

Our scope of review is limited, and we will sustain an administrative agency's final quasi-judicial decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). When evaluating the agency's decision, we consider (1) whether the agency has followed the law; (2) whether the decision is supported by "substantial evidence" in the record; 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." Id. at 28 (quoting Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995)).

While we are not bound by an agency's decision on purely legal questions, we will give "substantial deference" to an agency's interpretation of those statutes the agency enforces. Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). If the statute is ambiguous or silent on a particular point, we may not substitute our judgment for that of the agency provided the agency's determination is "based on a permissible construction of the statute." Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 581 (2000) (quoting 2 Am. Jur. 2d Administrative Law 525 (1994)).

With this standard in mind, we have reviewed the Board's decision, arguments of counsel, and the record. Putting aside the factual question of whether Trezza contracted MRSA in the workplace, we conclude that even if the proofs show that it is more likely than not that the source of her infection was contact in the STU, she does not qualify for an accidental disability benefit.

The statute provides that to qualify for an accidental disability benefit, the employee must have become "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." N.J.S.A. 43:15A-43. The Court has stated that in order to qualify for benefits the employee must meet the following five criteria:

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.

[Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., supra, 192 N.J. at 212-13.]

When considering whether a traumatic event has occurred, work effort alone solely or combined with a preexisting condition does not constitute a traumatic event. Id. at 210-12. Rather a traumatic event is synonymous with an accident and refers to an "unexpected external happening that directly causes injury and is not the result of pre-existing disease alone or in combination with work effort." Id. at 212. An employee "who is injured as a direct result of an identifiable, unanticipated mishap has satisfied the traumatic event standard." Id. at 213. The Court gave as examples of incidents meeting this standard, "[a] policeman . . . shot while pursuing a suspect; a librarian . . . hit by a falling bookshelf while re-shelving books;" a social worker injured by a "car door while transporting a child to court." Id. at 214. Each of those events were "identifiable as to time and place; undesigned and unexpected; and not the result of pre-existing disease, aggravated or accelerated by the work." Ibid. As the Court stated, "[t]he polestar of the inquiry is whether, during the regular performance of his job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member." Ibid.

For a post-traumatic mental injury to qualify for accidental disability pension benefits, the Court has also imposed an additional requirement:

The disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person. By that addition, we achieve the important assurance that the traumatic event posited as the basis for an accidental disability pension is not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.

[Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008).]

While the Board gave a variety of reasons for denying the benefits, most pertinently, it found that Trezza had not established that her disability was caused by a traumatic event "identifiable as to time and place." The Board noted:

The term "and" within "identifiable as to time and place" clearly requires that time and place be read in conjunction for exactness. After Richardson [v. Board of Trustees, Police & Firemen's Retirement System, supra, 192 N.J. 189] articulated its five part test, it held:

Recapping, it seems clear to us that the Legislature amended the accidental disability statutes to return the definition of accident to its pre-Fattore [v. Police & Firemen's Retirement System, 80 N.J. Super. 541 (App. Div.), certif. denied, 41 N.J. 245 (1963)] state, no more and no less. Thus, a member who is injured as a direct result of an identifiable, unanticipated mishap has satisfied the traumatic event standard.

[Id. at 213, emphasis added].

Richardson iterated this exacting standard, unequivocally imposing that the injury must be the "direct result of an identifiable, unanticipated mishap." [Ibid.] This clearly is not the case here, since not only is there no mishap, but also the alleged incident lacks any specificity as to the exact time and place. The Petitioner could only generalize date ranges and could only speculate as to likelihoods, but could not find an exact date and time with any particularity. In the ALJ's Conclusion of Law, he states that:

Based on the findings of fact detailed above, the evidence does establish that Trezza did contract MRSA as a result of her performing her job at STU. Thus, the events are identifiable as to place. The events are also identifiable as to time. Respondent's expert testified that the first MRSA infection happened within a few days of her being hospitalized. The second MRSA infection occurred after she returned to work. Finally, there is absolutely no evidence demonstrating that the two MRSA events were designed and expected.

[Initial Decision at 10, emphasis added].

The ALJ distinguishes that the event must be independently "identifiable as to time" and independently "identifiable as to place". [Ibid.] However, there is nothing in the record to conclusively determine a specific place merely that it was "more likely" at one work location versus another work location. (Initial Decision at 8). Additionally, there is nothing in the record which specifies an exact time or day, but only a range, to indicate that the incident "occurred after [Petitioner] returned to work." [Ibid.] The evidence in the record does not support that Petitioner met the stringent standard of an "identifiable, unanticipated mishap" as required by Richardson.

The ALJ further erred in this case in concluding that the mere possibility of an exposure to an infectious disease at the facility satisfies the accidental disability statute. It is clear that no "accident" occurred here. At best, the alleged incident involved the "possibility" of an occupational exposure. Even if the exposure to MRSA occurred at the State facility, it would constitute an occupational exposure and not an accident or traumatic event within the meaning of N.J.S.A. 43:15A-43.

We agree with this analysis. Trezza cannot point to any identifiable incident distinct as to time and place that caused her MRSA infection. Rather her claim is based on an estimation or projection of where and when she most likely contracted the infection. Indeed, no one can say with certainty that she sustained the infection due to her work at the STU. Accordingly, because Trezza did not establish that her inability to work was caused by a traumatic event sustained in the workplace, the Board properly denied her application for accidental disability benefits.

 
Affirmed.

(continued)

(continued)

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