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Menna v. Board of Trustees

October 15, 2010

DIANE L. MENNA, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 1023702.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2010

Before Judges Sabatino and Alvarez.

This case involves a claim by a former State employee for accidental disability retirement benefits under N.J.S.A. 43:15A-43. The employee, Diane L. Menna ("appellant"), appeals a final agency decision of the Board of Trustees of the Public Employees' Retirement System ("the Board") dated March 19, 2009, denying her claim. Based upon our limited scope of review of such administrative decisions, we affirm.

Appellant was employed as a family service specialist at the Division of Youth and Family Services ("DYFS"). As part of her job functions, appellant inspected foster homes and conducted parenting training. She spent about fifty percent of her work hours doing paperwork and other administrative tasks. In addition, appellant had to drive to various work sites, and transport items such as training manuals, videos, and books.

The workplace incident that underlies appellant's present claim for benefits occurred on November 6, 2002. According to appellant, while she was moving boxes during renovations to her workspace, she fell and struck a desk and a metal office divider. Appellant injured her left shoulder in the course of her fall. At the time of the incident, appellant was fifty-four years of age.

Following the November 2002 incident, appellant was treated for her left shoulder injury by both her family doctor and an orthopedic specialist. When her condition failed to improve after physical therapy, appellant underwent arthroscopic shoulder surgery in early February 2003. Her post-surgical treatment included resumed physical therapy, steroid injections, and pain medication.

Appellant attempted to return to work for DYFS, assuming the duties of an administrative assistant. However, that position required significant use of the telephone, which exacerbated her shoulder pain. In addition, her prescribed pain medications diminished her ability to concentrate. Consequently, appellant stopped working in July 2004. She was thereafter awarded Social Security disability benefits and workers' compensation.

Prior to her fall at work on November 6, 2002, appellant had already been diagnosed and treated for numerous significant medical conditions, including problems with her left shoulder. In April 1992, appellant had surgery on her left shoulder to alleviate pain attributed to degenerative changes. In September 1998, appellant was in a work-related motor vehicle accident, in which she injured that same shoulder. She was in a second work-related motor vehicle accident in January 1999, in which her neck and lower back were injured. Appellant acknowledged that these prior injuries and medical conditions pre-existed the November 6, 2002 accident, but she contended that they only caused her occasional pain and she was still able to do her job.

Appellant's instant claim for accidental disability benefits from the November 6, 2002*fn1 incident was initially rejected by the Board on the grounds that the incident did not comprise a qualifying "traumatic event" under the statute. Subsequently, the Board reconsidered its assessment, in light of the Supreme Court's supervening opinion in Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007), which clarified the statutory definition of a "traumatic event." Appellant's claim was then referred to an Administrative Law Judge ("ALJ") for a hearing, as described by the ALJ, to determine whether she was "totally and permanently disabled as a result of the [November 6, 2002 incident]."

At the one-day administrative hearing in September 2008, the ALJ heard testimony in support of the claim from appellant and her expert, Ralph G. Cataldo, D.O., a specialist in pain management and anesthesiology. The Board presented expert testimony from Zoher Stark, M.D., an orthopedic surgeon who examined appellant on February 2, 2006.

Dr. Cataldo, who was not appellant's treating physician, had initially examined her in July 2002 to evaluate her medical limitations resulting from the 1998 and 1999 motor vehicle accidents, apparently in connection with a claim for workers' compensation. At the time of that July 2002 examination, which preceded the subject accident of November 2002, Dr. Cataldo noted scarring from appellant's 1992 shoulder surgery, decreased range of motion of her left shoulder, weakness in appellant's left arm, numbness and gripping problems in her left hand, and assorted other symptoms in appellant's neck and back. Dr. Cataldo found that, at the time of the July 2002 examination, appellant had a sixty-five percent disability of her left shoulder. He further described appellant as seventy percent disabled in her cervical spine, ninety-five percent disabled in her lumbar spine, and fifty percent disabled in her left hand.

Dr. Cataldo reexamined appellant in May 2006 following the subject incident of November 2002. He also reviewed the reports of MRI studies of her left shoulder that were performed in December 2002 and in November 2004, which revealed a partial tear in appellant's left rotator cuff. Dr. Cataldo's examination noted appellant's continuing shoulder problems, which included restricted range of motion and weakness in her left arm. He found no improvement resulting from ...


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