IN THE MATTER OF LISA TREZZA, DEPARTMENT OF HUMAN SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2510-05T12510-05T1

IN THE MATTER OF LISA TREZZA,

DEPARTMENT OF HUMAN SERVICES.

__________________________________

 

Argued March 26, 2007 - Decided April 17, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from a Final Decision of the Merit System Board, 2006-138.

David A. Krenkel argued the cause for appellant, Lisa Trezza.

Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent, Merit System Board (Stuart Rabner, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Ullman, on the brief).

PER CURIAM

Petitioner, Lisa Trezza, appeals from a December 8, 2005, decision of the Merit System Board (the Board) denying her sick leave benefits. Trezza is employed as a Senior Rehabilitation Counselor at the Special Treatment Unit of the Ann Klein Forensic Center (STU). On January 7, 2005, Trezza noticed swelling and pain in her lower lip. She initially received antibiotics, however, the swelling and pain worsened, causing her to seek emergency treatment at Riverview Medical Center on Sunday, January 9, 2005.

She came under the care of Dr. Passalaqua, who admitted her to the hospital for IV antibiotic treatment. In the hospital, she was seen by Dr. Anuradha Ramasubramani, an infectious decease specialist, who told her that he believed she was suffering from Community-Associated Methicillin-Resistant Staphylococcus Aureus (CA-MRSA). Dr. Ramasubramani placed Trezza on anti-staphylococcus coverage pending laboratory results of the cultures. The cultures confirmed the presence of CA-MRSA. Ramasubramani indicated in his notes that "[Trezza] works in the prison and is at risk for MRSA as outbreaks of . . . MRSA have been documented in the prison setting."

According to Trezza, she notified her supervisor, Cathy Hatfield, Director of Rehabilitation at STU, and told her that her doctor had diagnosed her with CA-MRSA, that it was contracted at STU and was extremely contagious. Trezza was released from the hospital on January 14, 2005. She remained on antibiotics for five more days. She saw another infectious disease specialist, Dr. Ahmad, on January 20. Dr. Ahmad extended her oral antibiotics regimen for an additional five days. Trezza returned to work on January 31, 2005, however, she did not enter door one at STU until February 28, 2005. Three weeks later, on March 21, 2005, the swelling and pain reappeared. Trezza was again referred to Dr. Ahmad, who put her back on antibiotics. In his handwritten outpatient progress notes, Dr. Ahmad wrote:

2nd episode of CA-MRSA . . . [patient] works as a counselor in prison, probably continued exposure to CA-MRSA (as inmates under [high] incidence [and] likelihood of being colonized with CA-MRSA).

In a letter dated August 3, 2005, to the Board, Anne S. Kenyon, Manager of Human Resources at the Ann Klein Forensic Center, reported that Cathy Hatfield stated that although Trezza called her and reported her illness, Trezza did not mention it was work related. However, Hatfield indicated that because Trezza was concerned that she may be contagious, Hatfield contacted the administration at STU, which responded by showing a video to the staff concerning CA-MRSA. Kenyon reported that Dr. Ferguson advised that no residents were being treated for CA-MRSA and there had been no outbreaks at STU. The Sick Leave Injury Committee (SLI Committee) discussed Trezza's condition with the hospital's Infection Control Office, which, according to Kenyon, advised that because MRSA can be contracted in many ways, "to pinpoint STU" as the source "is impossible to prove." Kenyon noted that "[w]orking at a school, going to a grocery store or the mall are all possible sites of contamination." Accordingly, Kenyon reported that the SLI Committee rejected Trezza's application for sick leave benefits.

In response to Kenyon's letter, Trezza advised the Board that in addition to advising her that she was at increased risk for CA-MRSA because she worked in a prison setting, Dr. Ramasubramani "also informed me that individuals could be carriers without symptoms or knowledge of the infection."

In its decision after relating the above facts, the Board concluded:

In the instant matter, the appointing authority denied [Trezza's] request for SLI benefits on the basis that her illness was not work related. [Trezza's] physicians indicated that [Trezza] probably contracted MRSA from her worksite since she works in a prison setting. However, there was no evidence of an outbreak at [Trezza's] worksite. Dr. Ferguson reported that no resident at STU was being treated for MRSA at the time, nor did any of the residents have symptoms of MRSA. . . . [Trezza] has failed to establish that her condition was work related. Accordingly, a thorough review of the record indicates that the denial of SLI benefits by the appointing authority was proper and consistent with uniform SLI criteria and [Trezza] has failed to meet her burden of proof in this matter.

On appeal, Trezza asserts that she met her burden of proof. She maintains that the doctor's reports regarding her high risk of contracting CA-MRSA at her work environment, together with her submission of numerous articles from the Asbury Park Press indicating that there were over thirty incidents of MRSA at Monmouth and Ocean County correctional facilities, established that her condition was contracted at the work place.

N.J.A.C. 4A:6-1.6(c) provides in pertinent part:

The disability must be due to an injury or illness resulting from the employment.

1. Injuries or illnesses which would not have occurred but for a specific work-related accident or condition of employment are compensable.

. . . .

3. Illnesses which are generally not caused by a specific work-related accident or condition of employment, are not compensable except when the claim is supported by medical documentation that clearly establishes the injury or illness is work related.

Our role on review is limited. Our function is to determine whether the administrative action was arbitrary, capricious, or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We will only decide whether the findings could reasonably have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We cannot substitute our judgment for that of the agency. In re Polk, 90 N.J. 550, 578 (1982). We accord a strong presumption of reasonableness to the agency's exercise of its statutorily delegated responsibilities. See City of Newark v. Natural Res. Council Dep't of Envtl. Prot., 82 N.J. 530, 539-, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing that the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Applying those principles, we are convinced that the Board's final determination lacks sufficient evidential support and a remand is necessary to afford Trezza an opportunity to establish through medical expert reports that it is not uncommon for persons housed in a prison type setting to be infected and not show signs of the disease. The Board prefaced its decision by acknowledging that her "physicians indicated that [Trezza] probably contracted MRSA from her worksite since she works in a prison setting." However, the Board then rejected the doctor's conclusion based upon the evidence that there had been no other outbreaks of the disease at STU. In reaching its decision, the Board did not address Trezza's statement that her doctors indicated that individuals can be carriers without manifesting any symptoms. Instead, it presumed that the lack of outbreaks at STU meant that STU's inhabitants could not have been infected with CA-MRSA. In Kaucher v. County of Bucks, 455 F.3d 418, 420 (3d Cir. 2006), the plaintiffs, a corrections officer and his wife, brought suit against the county and several of its employees, alleging violation of their due process rights, contending that they contracted MRSA as a result of unsanitary conditions at the jail. The court noted that

[c]olonization occurs when the bacteria are present in the body without causing illness or infection. According to the Centers for Disease Control and Prevention, staph bacteria, including MRSA, are "commonly carried on the skin or in the nose of healthy people," and at any given time, approximately 25% to 30% of people in the United States have staph bacteria colonized in their noses.

[Id. at 422.]

Dr. Ahmad specifically used the term "colonized" in his patient progress notes. We, therefore, remand the matter to the Board for further proceedings to permit Trezza to present evidence from a qualified medical expert to establish that the lack of outbreaks at STU does not necessarily support the conclusion that she could not have contracted the disease at STU. If Trezza provides such proofs, the employer should be given an opportunity to rebut her submissions. We do not retain jurisdiction.

 
Reversed and remanded.

(continued)

(continued)

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A-2510-05T1

April 17, 2007