ANNE TOMASELLO-MONAGAS v. PUBLIC EMPLOYEES RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2361-09T2

ANNE TOMASELLO-MONAGAS,

Petitioner-Appellant,

v.

PUBLIC EMPLOYEES' RETIREMENT

SYSTEM,

Respondent-Respondent.

________________________________

June 6, 2011

Submitted October 20, 2010 - Decided

Before Judges Gilroy and Ashrafi.

On appeal from the Board of Trustees, Public Employees' Retirement System, Department of Treasury, PERS No. 02-10-222455.

Reynolds & Scheffler, LLC, attorneys for appellant(Thomas F. Reynolds, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Melissa A. Haas, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Anne Tomasello-Monagas appeals from the December 11, 2009 final decision of the Board of Trustees of the Public Employees' Retirement System (the Board) that denied her application for accidental disability retirement benefits. We affirm.

Appellant is a former employee of the New Jersey Juvenile Justice Commission (JJC), having been employed by the JCC for approximately seventeen years, last holding the position of Teacher 3. As part of her duties with the JCC, appellant traveled to various locations throughout the State. Appellant suffers from scoliosis,1 having undergone a partial fusion of her spine at levels T12 to L4 in 1971. Following that surgery, appellant's back remained stable.

On April 29, 2004, appellant was involved in an automobile accident during the course of her employment. Having suffered injuries to her neck and back, appellant remained out of work for approximately four months, after which she returned to work on a part-time basis for four hours a day. On April 6, 2005, appellant was involved in a second automobile accident; however, this accident was not work related.

The second accident aggravated appellant's prior back injury. A magnetic resonance imaging diagnostic procedure (MRI) of April 14, 2005, when compared to an MRI of July 16, 2004, disclosed that appellant's "Grade 1 spondylolisthesis at L5-S1 had progressed." Appellant subsequently underwent an interbody lumbar fusion with the placement of six pedicle screws and two plates." However, following the surgery, appellant continued to suffer "severe low back pain with radiculopathy down her right lower extremity." Appellant then underwent a second surgery to remove a broken screw from her last spinal fusion, shave off a part of a spinal bone, and untwist her sciatic nerve. Having been diagnosed with "a failed back syndrome status post lumbar fusion," appellant never returned to work after the April 6, 2005 accident; rather, appellant filed an application for accidental disability retirement benefits on August 24, 2006, asserting that she was totally and permanently disabled as a result of the injuries suffered in the April 29, 2004 accident only.

On June 21, 2007, the Board issued a written decision determining that appellant was "totally and permanently disabled from the performance of [her] regular and assigned duties and that the incident described as occurring on April 29, 2004, was considered a 'traumatic event'" under N.J.S.A. 43:15A-43. Nonetheless, "the Board determined that petitioner's disability was not a direct result of the incident described as detailed by N.J.S.A. 43:15A-43 and relevant case law." Accordingly, the Board denied appellant accidental disability retirement benefits, granting her ordinary disability benefits instead. On July 17, 2007, appellant appealed. On August 15, 2007, the Board transferred the matter to the Office of Administrative Law (OAL) as a contested case.

Administrative Law Judge (ALJ) Martone conducted an administrative hearing on January 21 and May 19, 2009. Testifying at the hearing on behalf of appellant were: appellant; her husband, Raphael Monagas; and appellant's medical expert, Dr. Michael Jung, who practices family medicine. The only witness to testify on behalf of the Board was Dr. Lance Markbreiter, an orthopedic surgeon, who had conducted a medical evaluation of appellant on behalf of the Board.

On October 29, 2009, the ALJ issued his initial decision, concluding that appellant's disability "was not a direct result of the incident of April 29, 2004, since it was not the essential significant or the substantial contributing cause of the resultant disability." The ALJ "ORDERED that the determination of the [Board] denying [appellant's] application for an accidental disability retirement pension because her disability was not a direct result of the incident of April 29, 2004, is AFFIRMED." (Emphasis in original).

In reaching his decision, the ALJ reasoned in pertinent part:

Neither testifying doctor expressed their opinions of causation in terms of whether either or both auto accidents constituted the essential significant or the substantial contributing cause of the resultant disability. However, it is clear from the testimony of Dr. Markbreiter that his opinion is that both accidents together are the essential significant or the substantial contributing cause of the resultant disability.

I FIND that Dr. Jung provided very little analysis or support for his conclusion that the April 2004 accident was the direct cause of all of her injuries and her disability. In contrast, Dr. Markbreiter properly relied on the reports of the petitioner's treating physicians that there was an aggravation of petitioner's symptoms and that the spondylolisthesis at L5-S1 had progressed following the second accident. In addition, he relied on an April 14, 2005, MRI report which stated that the spondylolisthesis is progressive when compared to the prior study clearly demonstrating another traumatic event. He further relied on petitioner's deposition testimony (R-3) that she returned to work part-time after the first accident and that she did not return to work for fourteen months after the second accident. Also, the petitioner required surgery after the second accident, and she admitted that the second accident did aggravate her condition.

Dr. Markbreiter concluded that based on the fact the petitioner was able to return to work on a part-time basis and was able to function at work after the first accident, but was unable to do so following the second accident of April 6, 2005, and based on the objective evidence described by her orthopedic doctor and neurosurgeon, as well as MRI evidence of progression, he expressed the opinion that the petitioner's disability is directly related to both the April 29, 2004 accident as well as the April 6, 2005 accident, and that the second accident led to her inability to perform her part-time duties and to her need for surgery. Implicit in Dr. Markbreiter giving petitioner fifty percent causality from the accident of April 29, 2004, and fifty percent from the accident of April 6, 2005, is that the April 29, 2004 accident was not the essential significant or the substantial contributing cause of the resultant disability. I FIND that Dr. Markbreiter's conclusions and opinions are based on undisputed facts, the conclusions and opinions of petitioner's treating physicians and objective testing of the petitioner.

On December 11, 2009, the Board issued a final decision adopting the findings of fact and conclusions of law of the ALJ's decision, denying appellant accidental disability benefits.

On appeal, appellant argues that the ALJ overlooked or underevaluated: 1) the fact that appellant's treatment had been directed by her workers' compensation carrier; 2) Dr. Markbreiter's testimony of a pre-existing 70% disability (for a fused spine due to scoliosis as a teenager); 3) appellant's testimony that her condition after the 2005 accident was the same as her condition after the 2004 accident; and 4) appellant's testimony that she had been told that she was required to return to work full time although she had not been medically cleared to do so. Additionally, appellant argues that the ALJ mischaracterized Dr. Jung's opinion.

Our review of an administrative agency's decision is limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., ___ N.J. ___, ___ (2011) (slip op. at 16). "[T]he overarching and informative principle guiding appellate review requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). Accordingly, "'[a]n 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.'" Russo, supra, at 16-17 (quoting In re Hermann, 192 N.J. 19, 27-28 (2007)). In applying this standard, we are informed by the following determinations:

(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.

[Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995)).]

Accidental disability retirement under the Public Employees' Retirement System is governed by N.J.S.A. 43:15A-43. That statute provides in pertinent part:

A member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application or the application of one acting in his behalf, be retired by the board of trustees, if said employee is 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, on an accidental disability allowance.

[N.J.S.A. 43:15A-43.]

Under the statute, the term "direct" "connotes relative freedom from remoteness, whether in terms of time, intervention of other contributive causes or the like, or a combination of such factors." Titman v. Bd. of Trs., Teachers' Pension & Annuity Fund, 107 N.J. Super. 244, 247 (App. Div. 1969). To meet the direct result requirement of the statute, the traumatic event must be "the essential significant or substantial contributing cause of the disability." Gerba v. Bd. of Trs., Public Employees' Ret. Sys., 83 N.J. 174, 187 (1980).

We have considered appellant's arguments in light of the record and applicable law. The ALJ's findings are supported by sufficient, credible evidence in the record. We affirm substantially for the reasons expressed by the ALJ in his initial decision of October 29, 2009, as adopted by the Board in its final decision on December 11, 2009.

1 "Scoliosis" is defined as "an appreciable lateral deviation in the normally straight vertical line of the spine." Dorland's Illustrated Medical Dictionary, 1390 (25th ed. 1974).