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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0344-16T3
DAWN THOMAS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM.
Respondent-Respondent.
____________________________
Submitted November 14, 2017 – Decided December 15, 2017
Before Judges Hoffman and Mayer.
On appeal from the Board of Trustees of the
Public Employees' Retirement System,
Department of Treasury, PERS No. 2-1352911.
William B. Hildebrand, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Christina Levecchia, Deputy Attorney General,
on the brief).
PER CURIAM
Dawn Thomas appeals from a final agency decision of the Board
of Trustees of the Public Employees' Retirement System (Board)
denying her application for accidental disability retirement
benefits. We affirm.
Thomas was employed as a human services assistant at Ancora
Psychiatric Hospital from 2008 until she resigned in June 2014.
On June 14, 2014, Thomas submitted an application for accidental
disability retirement benefits claiming that she hurt her back on
April 23, 2010 while checking on a combative patient.
The Board denied Thomas' application because the April 2010
incident, which involved lifting and dressing a confrontational
patient, was not undesigned and unexpected.1 While the Board found
Thomas was totally and permanently disabled from the performance
of her duties, it noted that her pension account lacked the
required years of service for receipt of ordinary disability
retirement benefits.
Thomas requested a hearing, and the Board referred the matter
to the Office of Administrative Law (OAL).
1
Thomas initially claimed her injury occurred while she was
lifting and dressing a patient. When Thomas appealed the Board's
denial of her accidental disability retirement benefits, she
claimed her injury was the result of slipping on urine in the
patient's room and broken wheel locks on the patient's bed.
2 A-0344-16T3
An administrative law judge (ALJ) heard testimony from Thomas
and her co-worker at Ancora Psychiatric Hospital, Noel Garate.
The Board did not call any witnesses.
During the OAL hearing, Thomas testified that she injured her
back in April 2010 when she was checking on an aggressive patient.
According to Thomas, she entered the patient's room and placed her
finger under the patient's nose to check his breathing in
accordance with hospital protocol. While she was checking the
patient, he grabbed her arm and tried to bite her. Thomas
testified there was urine on the floor in the patient's room and
that she slipped while attempting to pull her arm away from the
patient. When Thomas hit the floor, she said she heard and felt
a crack in her back. Thomas further testified that the wheels on
the patient's bed would not remain in the locked position, so when
she pulled her arm away from the patient, the bed moved with her.
The incident was witnessed by Garate.
During cross-examination, Thomas admitted that filed incident
reports must be accurate. However, Thomas testified that the
incident report for her April 2010 accident was wrong because her
hourly wage was incorrect and other relevant information, such as
urine on the floor and broken wheel locks on the bed, was not set
forth in that report. Thomas was questioned regarding her May
2015 answers to interrogatories as well. The April 2010 incident
3 A-0344-16T3
as described in the interrogatory responses varied significantly
from the events as described by Thomas in her 2010 incident report.
While Thomas denied that the 2015 interrogatory answers were her
responses, she conceded that the signature accompanying the
responses was her signature. Similarly, when questioned about her
2014 disability application and the differences between that
document and the April 2010 incident report, Thomas denied that
the words on the application were her words. She acknowledged
that the signature on the disability application was her signature.
Thomas testified that the incident report and disability
application submitted as evidence at the OAL hearing were
inaccurate.2 On further cross-examination, when asked about the
history that she provided to a medical examiner in September 2014,
Thomas acknowledged that there was no mention of urine on the
floor in the patient's room or that the patient attempted to bite
her.
During the OAL hearing, Garate testified that he witnessed
the April 2010 incident. According to Garate, the patient attacked
Thomas and attempted to bite her when she checked his breathing.
Garate did not see urine on the floor but believed that urine
2
Counsel agreed to joint exhibits introduced as evidence at the
OAL hearing. The agreed upon exhibits included Thomas' 2010
incident report, 2014 disability application, and September 24,
2014 medical history given to an examining doctor.
4 A-0344-16T3
could have leaked from the patient's catheter bag. Garate also
testified that the brakes on the bed were broken. Garate further
stated that he did not know what part of Thomas's body was injured
and did not hear a pop or crack. Garate also acknowledged that
he was friendly with Thomas and hoped she would be awarded
accidental disability retirement benefits.
The ALJ did not find the testimony of Thomas and Garate to
be credible. The ALJ noted that Thomas' testimony varied
significantly from the incident report, application for accidental
disability retirement benefits, and history Thomas provided to a
medical doctor. Neither the incident report, made two days after
the episode with the patient, nor Thomas' 2014 application for
accidental disability benefits, nor the information given by
Thomas to an examining doctor in September 2014, made any mention
of urine on the floor or broken brakes on the patient's bed. These
claims were not raised by Thomas until May 2015, when she answered
discovery requests in connection with her efforts to receive
accidental disability retirement benefits. The ALJ also found
that Thomas was aware she was ineligible to receive ordinary
disability retirement benefits because she lacked the required
years of service for benefits. The ALJ noted that Thomas disputed
the authenticity of three documents jointly admitted as evidence
during the OAL hearing — her disability application, the incident
5 A-0344-16T3
report, and her answers to interrogatories — but admitted the
signature on those documents was her signature. Thomas failed to
offer any credible explanation during the OAL hearing as to the
discrepancies between the documents and her testimony, which the
ALJ found "serve[d] to undermine the credibility of her testimony."
The ALJ concluded that Thomas had every reason to alter her
testimony during the OAL hearing to receive benefits.
The ALJ determined that Thomas was not entitled to accidental
disability retirement benefits because she failed to demonstrate
by a preponderance of credible evidence that the wheels on the
patient's bed were broken or that there was urine on the floor in
the patient's room. Moreover, the ALJ found that Thomas' job
description included lifting and dressing patients. The ALJ also
concluded that Thomas was aware of the combative and unpredictable
nature of this patient. Based on these finding, the ALJ found
that the incident did not qualify as an unexpected happening for
an award of accidental disability retirement benefits.
The Board adopted the ALJ's initial decision and denied
Thomas' application for accidental disability retirement benefits.
On appeal, Thomas argues: 1) the Board's findings are not supported
by substantial credible evidence; and 2) the Board was incorrect
in deeming that the patient's attack on Thomas was not undesigned
and unexpected.
6 A-0344-16T3
The standard of appellate review from a final agency decision
is deferential. An agency determination should not be reversed
"unless it is arbitrary, capricious or unreasonable or it is not
supported by substantial credible evidence in the record as a
whole." Lavezzi v. State,
219 N.J. 163, 171 (2014) (quoting Prado
v. State,
186 N.J. 413, 427 (2006)). However, we review an
agency's legal interpretations de novo. Id. at 172. "Generally,
courts afford substantial deference to an agency's interpretation
of a statute that the agency is charged with enforcing."
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys.,
192 N.J.
189, 196 (2007).
A PERS member is eligible for accidental disability
retirement benefits if the member 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 . . . ." See
N.J.S.A. 43:15A-43.
The Richardson Court set forth the following factors a
claimant must prove to qualify for accidental disability
retirement benefits:
1. [the claimant] is permanently and totally
disabled;
2. as a direct result of a traumatic event
that is
7 A-0344-16T3
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.
[
192 N.J. at 212-13.]
The only issue in this matter is whether the traumatic event
experienced by Thomas was "undesigned and unexpected." To answer
that question, the ALJ was required to assess the credibility of
the witnesses who testified during the OAL hearing. The ALJ had
an opportunity to see and hear the testifying witnesses to render
credibility determinations. State v. Locurto,
157 N.J. 463, 471
(1999). Having heard the witnesses' testimony, and comparing the
testimony to the documentary evidence submitted during the OAL
hearing, the ALJ concluded the incident was not undesigned and
unexpected because there was no credible evidence that there was
urine on the floor or that the bed's wheel locks were broken.
8 A-0344-16T3
Moreover, the ALJ found that lifting and dressing a patient, as
Thomas stated in her April 2010 incident report and 2014 disability
benefits application, is not an unexpected event. Thomas routinely
performed such duties for all patients at Ancora Psychiatric
Hospital, including patients who were "combative." Further,
because the job description for a human services assistant, such
as Thomas, included "assisting residents with dressing," the ALJ
deemed the injury was not undesigned or unexpected.
Having reviewed the record, we conclude there is sufficient
credible evidence to support the Board's determination that
Thomas' disability was not the result of a traumatic evident that
was "undesigned and unexpected."
Affirmed.
9 A-0344-16T3
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