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Rosas v. Board of Trustees of the Public Employees' Retirement System

July 19, 2010

DALE ROSAS, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Board of Trustees, Public Employees' Retirement System, Docket No. 1092763.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 24, 2010

Before Judges R. B. Coleman and Alvarez.

Petitioner appeals from a final determination by the Board of Trustees of the Public Employees' Retirement System (the Board), rejecting the findings and recommendations of an Administrative Law Judge (ALJ) on petitioner's claim for accidental disability retirement under N.J.S.A. 43:15A-43. We affirm.

The incidents giving rise to the claim occurred on May 21, 2002, and May 29, 2002, when petitioner was employed by the Eatontown Board of Education (Eatontown) as a special education aide. On May 21, petitioner was assisting a child on a rehabilitative structure called "the gym." He became frightened and fell, grabbing at her, causing her to also fall to the ground. She injured her back, neck, and right shoulder and knee in the fall. She received medical attention that day and was placed on light duty, with a recommendation for physical therapy. A few days later, on May 29, 2002, the same child slipped and fell as petitioner was assisting him, causing her to again fall to the floor on her right side. She was seen by the same doctor and was subsequently treated by Drs. Barry Swick and Harris Bram. Petitioner returned to work, but in November 2002, she was hospitalized with spinal meningitis unrelated to her workplace injuries. Eatontown subsequently advised her that her job was not "light duty," as was medically required, and that Eatontown could not continue to employ her.

Petitioner thereafter filed an application for accidental disability retirement with the Division of Pensions and Benefits on August 5, 2005, alleging she was totally and permanently disabled as a result of the incidents we have described. That initial application was rejected because the Board found that she was not permanently disabled as the falls did not constitute "traumatic events" under N.J.S.A. 43:15A-43 and that her "alleged disability was not a direct result of either... incident[]." Petitioner was ineligible for any other benefit except for "the return of [her] accumulated pension contributions" because of her age and limited number of years of service. She appealed the denial on September 28, 2006, and the Board approved her request for a hearing on October 19, 2006. The matter was accordingly transferred to the Office of Administrative Law (OAL) as a contested case.

Upon the Supreme Court's issuance of its opinion in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), the Board decided to reconsider the application. Additional medical documentation was also submitted on petitioner's behalf in preparation for the OAL hearing. Based on this new information, the Board found that Rosas was indeed totally and permanently disabled and that the incidents on May 21 and May 29 qualified as traumatic events under Richardson. The Board maintained its position, however, that her disability was not the result of either event but instead the result of some other medical condition or conditions. Thus petitioner was denied accidental disability retirement benefits a second time. The Board voted to proceed with the OAL hearing on the issue of causation.

The plenary hearing was conducted before the ALJ on October 3 and October 7, 2008. Petitioner testified on her own behalf and presented the testimony of Dr. Martin Riss as her expert in "disability evaluations," although Riss is a family physician and is not board certified as an orthopedics specialist. Dr. Lance Markbreiter, who is a board certified orthopedic surgeon, testified as the Board's expert.

At the hearing, petitioner claimed she had never suffered from orthopedic problems prior to the falls, however, she testified that she had been stricken by congenital polio malitis as a child and was required to wear a corrective brace on her leg. She has also suffered from idiopathic thrombocytopenic purpura, a blood disorder that causes a low platelet count, since 1979. Additionally, petitioner has hyperthyroidism, hypertension, and high cholesterol. She was diagnosed with breast cancer in 2006 and received chemotherapy and radiation treatment. That same year, she suffered a stroke which caused minor vision loss in her left eye. Petitioner was diagnosed with carpal tunnel syndrome in both wrists in 2006.

Riss testified that he examined petitioner on August 21, 2008, reviewed her medical records, took a complete history, and performed a physical examination, although he did not have the opportunity to examine the x-rays or MRIs taken immediately following the falls. He did refer to reports prepared by other physicians who mentioned these x-rays of her thoracic spine and lumbosacral spine as depicting "no evidence of any remarkable finding." In other words, the tests were essentially normal. Riss testified that petitioner had a host of subjective complaints at the time of his 2008 examination including headaches, neck pain, stiffness, low back pain, right knee pain, and trouble sleeping. He testified that the muscles adjoining her spine suffered from "spasm" and she had limited range of motion and a limp. Riss also said that petitioner experienced spasms in her right cervical and bilateral trapezius. He said:

Spasm after an injury is a common finding for a period of a few months, a typical person who is injured will have spasm for a while, for a few weeks, maybe two, maybe three, maybe four months. I am examining her in 2008, a little over six years after the accidents, spasm is a finding that should not be present. So, six years after the accident I'm still feeling tension in her muscles that, again, should not be there.

In his view, petitioner was totally and permanently disabled as a result of the falls, although Riss acknowledged that he could not explain the "mechanics of what caused her to have such extensive injury." He based his opinion on the fact that prior to the falls she was "a hundred percent mobile," and that thereafter: she only goes a few more months of treatment and has to quit her job completely because she can't ...


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