On appeal from the Board of Trustees, Public Employees' Retirement System, PERS No. 1164470.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
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:
Petitioner's Conceded Total and Permanent Disability is the Direct Result ...