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Anne Tomasello-Monagas v. Public Employees' Retirement System

June 6, 2011

ANNE TOMASELLO-MONAGAS, PETITIONER-APPELLANT,
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Board of Trustees, Public Employees' Retirement System, Department of Treasury, PERS No. 02-10-222455.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 20, 2010

Before Judges Gilroy and Ashrafi.

Appellant Anne Tomasello-Monagas appeals from the December 11, 2009 final decision of the Board of Trustees of the Public Employees' Retirement System (the Board) that denied her application for accidental disability retirement benefits. We affirm.

Appellant is a former employee of the New Jersey Juvenile Justice Commission (JJC), having been employed by the JCC for approximately seventeen years, last holding the position of Teacher 3. As part of her duties with the JCC, appellant traveled to various locations throughout the State. Appellant suffers from scoliosis,*fn1 having undergone a partial fusion of her spine at levels T12 to L4 in 1971. Following that surgery, appellant's back remained stable.

On April 29, 2004, appellant was involved in an automobile accident during the course of her employment. Having suffered injuries to her neck and back, appellant remained out of work for approximately four months, after which she returned to work on a part-time basis for four hours a day. On April 6, 2005, appellant was involved in a second automobile accident; however, this accident was not work related.

The second accident aggravated appellant's prior back injury. A magnetic resonance imaging diagnostic procedure (MRI) of April 14, 2005, when compared to an MRI of July 16, 2004, disclosed that appellant's "Grade 1 spondylolisthesis at L5-S1 had progressed." Appellant subsequently underwent an interbody lumbar fusion with the placement of six pedicle screws and two plates." However, following the surgery, appellant continued to suffer "severe low back pain with radiculopathy down her right lower extremity." Appellant then underwent a second surgery to remove a broken screw from her last spinal fusion, shave off a part of a spinal bone, and untwist her sciatic nerve. Having been diagnosed with "a failed back syndrome status post lumbar fusion," appellant never returned to work after the April 6, 2005 accident; rather, appellant filed an application for accidental disability retirement benefits on August 24, 2006, asserting that she was totally and permanently disabled as a result of the injuries suffered in the April 29, 2004 accident only.

On June 21, 2007, the Board issued a written decision determining that appellant was "totally and permanently disabled from the performance of [her] regular and assigned duties and that the incident described as occurring on April 29, 2004, was considered a 'traumatic event'" under N.J.S.A. 43:15A-43. Nonetheless, "the Board determined that petitioner's disability was not a direct result of the incident described as detailed by N.J.S.A. 43:15A-43 and relevant case law." Accordingly, the Board denied appellant accidental disability retirement benefits, granting her ordinary disability benefits instead. On July 17, 2007, appellant appealed. On August 15, 2007, the Board transferred the matter to the Office of Administrative Law (OAL) as a contested case.

Administrative Law Judge (ALJ) Martone conducted an administrative hearing on January 21 and May 19, 2009. Testifying at the hearing on behalf of appellant were: appellant; her husband, Raphael Monagas; and appellant's medical expert, Dr. Michael Jung, who practices family medicine. The only witness to testify on behalf of the Board was Dr. Lance Markbreiter, an orthopedic surgeon, who had conducted a medical evaluation of appellant on behalf of the Board.

On October 29, 2009, the ALJ issued his initial decision, concluding that appellant's disability "was not a direct result of the incident of April 29, 2004, since it was not the essential significant or the substantial contributing cause of the resultant disability." The ALJ "ORDERED that the determination of the [Board] denying [appellant's] application for an accidental disability retirement pension because her disability was not a direct result of the incident of April 29, 2004, is AFFIRMED." (Emphasis in original).

In reaching his decision, the ALJ reasoned in pertinent part:

Neither testifying doctor expressed their opinions of causation in terms of whether either or both auto accidents constituted the essential significant or the substantial contributing cause of the resultant disability. However, it is clear from the testimony of Dr. Markbreiter that his opinion is that both accidents together are the essential significant or the substantial contributing cause of the resultant disability.

I FIND that Dr. Jung provided very little analysis or support for his conclusion that the April 2004 accident was the direct cause of all of her injuries and her disability. In contrast, Dr. Markbreiter properly relied on the reports of the petitioner's treating physicians that there was an aggravation of petitioner's symptoms and that the spondylolisthesis at L5-S1 had progressed following the second accident. In addition, he relied on an April 14, 2005, MRI report which stated that the spondylolisthesis is progressive when compared to the prior study clearly demonstrating another traumatic event. He further relied on petitioner's deposition testimony (R-3) that she returned to work part-time after the first accident and that she did not return ...


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