Opinion
DOCKET NO. A-4530-12T1
06-30-2015
JOSEPHINE VIGLIETTA, Appellant, v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent.
Gaylord Popp, LLC, attorneys for appellant (Louis W. Boltik, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph F. Dorfler, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Board of Trustees of the Public Employees Retirement System, Department of the Treasury, PERS #2-10-240539. Gaylord Popp, LLC, attorneys for appellant (Louis W. Boltik, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph F. Dorfler, Deputy Attorney General, on the brief). PER CURIAM
Josephine Viglietta appeals from a final decision of the Board of Trustees of the Public Employees' Retirement System (Board), denying her application for accidental disability retirement benefits, pursuant to N.J.S.A. 43:15A-43. Misapplying the applicable law, the Board found Viglietta was not entitled to accidental disability retirement benefits because her injury was not caused "solely" by a traumatic event. We remand, and direct the Board to reconsider Viglietta's application under the appropriate standard.
Viglietta, then sixty years old, worked as a custodian with the Freehold Regional High School District. On December 28, 2007, she was involved in an accident at work. While stripping wax off of a floor, she slipped and fell, landing on her right side, striking her right elbow and shoulder. She experienced severe shoulder pain, and never returned to work. There is no record of shoulder pain prior to this accident.
Viglietta was seen and treated by a doctor on the date of her fall. Thereafter, on January 2, 2008, she was referred to an orthopedist; and, on January 22, 2008, she was diagnosed with impingement syndrome of the right shoulder. On February 18, 2008, Viglietta was given a cortisone injection into her right shoulder, and the treating doctor ordered an MRI. On March 10, 2008, she underwent the right shoulder MRI, which did not reveal a rotator cuff tear, but was consistent with impingement syndrome and a type 2 acromion.
According to the testimony of both of the expert witnesses, the acromion is the bone at the apex of the shoulder. The Acromion can be type 1, where the bone is flat, type 2, where the bone is curved, or type 3, where the bone is severely curved or hooked. The rotator cuff tendons run under the acromion, through the space between it and the ball of the shoulder, the humeral head. When the space is compressed, there is an impingement which results in pain. --------
After Viglietta's accident, she initially received conservative treatment, including injections and physical therapy. Despite this treatment, she still reported severe pain in the shoulder. On April 4, 2008, Viglietta underwent a functional capacity evaluation (FCE) that showed she could only work in a sedentary duty position, and that she had a lifting ability of ten pounds or less. According to the FCE report, Viglietta showed sub-maximal effort, although it is unknown if the FCE took into account the pain she was experiencing while she completed it.
On August 5, 2008, Viglietta underwent an EMG, which showed radiculopathy on the right side. She then underwent an arthroscopic decompression surgery on her right shoulder on December 19, 2008, which was performed by an orthopedic surgeon, Dr. Chalnick. Chalnick's operative report states that "the coracoacromial ligament was released. The bur was placed posteriorly in a cutting block fashion a flat type 1 acromion was established. Of note the rotator cuff was intact." Viglietta received physical therapy following the surgery.
On March 27, 2009, Viglietta filed an application for ordinary disability retirement from her position as a custodian. On April 21, 2009, Chalnick wrote that Viglietta was significantly improved since the surgery, but was still unable to perform her duties as a custodian. He added that he might be willing to allow her to return to sedentary work. However, no light duty work was available. Chalnick also noted some improvement in Viglietta's range of motion, but found that it was still restricted. Viglietta continued to complain of pain.
On June 8, 2009, Viglietta's employer filed an employer certification for disability retirement, which stated that no other position was available for her. On July 30, 2009, Chalnick sent Viglietta for another MRI of her right shoulder. The MRI report concluded she had "a partial tear involving the supraspinatus, infraspinatus, and subscapularus [sic] tendon".
On August 12, 2009, Viglietta timely filed an amended application requesting accidental disability retirement benefits, attributing her condition to her December 2007 accident. Her application for ordinary retirement disability benefits was approved, while her application for accidental retirement benefits was still pending.
Thereafter, on May 26, 2010, Viglietta was sent to see an orthopedist, Dr. Lawrence Barr, for a medical examination. Without having seen the MRI results or the operative report, Barr examined plaintiff. Barr opined that Viglietta was no longer permanently disabled and could resume her job as a custodian.
On October 21, 2010, the Board denied Viglietta's request for accidental disability retirement, and terminated her ordinary disability retirement benefits. The Board based its decision on Barr's opinion that she was now capable of resuming her former position as a custodian, or other comparable duty. The Board determined that there was no evidence in the record of direct causation of a total and permanent disability caused by a traumatic event. On April 22, 2011, after having reviewed the operative, EMG, and x-ray reports, as well as other doctors' notes, Barr's opinion was unchanged.
Viglietta filed a timely appeal of the Board's decision and the matter was transmitted to the Office of Administrative Law as a contested case. On February 17 and December 14, 2012, a hearing was held by the Administrative Law Judge (ALJ). Three witnesses testified at the hearing: Viglietta, Viglietta's expert Dr. David Weiss, and the Board's expert Dr. Barr. Weiss's diagnosis was that Viglietta "had a chronic post-traumatic rotator cuff tendonopathy to the right shoulder[,]" and "a chronic medial and lateral epicondylitis to the right elbow." He also opined that Viglietta was permanently injured as a direct result of the trauma from the December 28, 2007 fall, and that she was disabled from performing her duties as a custodian. Weiss continued,
[w]ell, given her job-related functions, it was my opinion that she could not function in a heavy duty capacity as required by this job. I didn't feel her capable of being able to lift materials of 40 pounds, empty trash cans, moving boxes. She had to do pushing, pulling, moving desks, have to use machinery required to wax. It was just too much for her to do now with that shoulder and elbow, more so with the shoulder.Finally, Weiss testified that Viglietta appeared to him to give an honest effort on all tests he performed on her.
Barr also diagnosed Viglietta as having impingement syndrome, saying "[i]t happens, actually in this case, where you have a fall. There's an injury. It starts out with edema, swelling, and then, it becomes tendonitis and bursitis, and in the late stages, it can develop into a rotator cuff tear. So, that's . . . Impingement Syndrome." On the other hand, Barr opined that Viglietta had made a full recovery following the surgery to her right shoulder, and was therefore not permanently disabled. He opined that she could work as a custodian without restrictions.
Barr further stated that the tests demonstrated no arthritic changes. The only other statement by Barr relevant to causation was his testimony that a "type 2 acromion is curved, and can cause impingement" after he had described the various acromion types as "congenital." He did not opine the acromion structure was the cause of Viglietta's impingement.
On January 28, 2013, the ALJ issued her Initial Decision, finding Weiss more persuasive than Barr, as to Viglietta's disability. She also found that Viglietta was a credible witness. The ALJ concluded that Viglietta was totally and permanently disabled, and thus entitled to receive ordinary disability retirement benefits. The ALJ, then made a finding that the cause of Viglietta's permanent disability was a "congenital anomaly," referring to her type 2 acromion, despite the fact there was no testimony by either expert or any support in the record for the finding that a type 2 acromion is an "anomaly", which is something that deviates from what is standard, normal, or expected.
As to accidental disability retirement benefits, the ALJ held that "without proof that the traumatic event of December 2007 was the sole cause of this total disability I CONCLUDE that petitioner has not met her burden of proof and has not demonstrated that she is entitled to accidental retirement disability." (Emphasis added)
On April 18, 2013, the Board adopted the ALJ's findings of fact and conclusions of law, and granted Viglietta's application for ordinary disability benefits, while denying her application for accidental disability benefits. This appeal followed.
Viglietta contends that the ALJ failed to apply the correct legal standard to her claim because the law does not require she prove the sole cause of her permanent disability was a traumatic event. Instead, the appropriate standard is whether the traumatic event was the substantial factor in causing her permanent disability. We agree.
The standard of review that applies in an appeal from a state agency decision is well established. "Judicial review of an agency's final decision is generally limited to a determination of whether the decision is arbitrary, capricious, or unreasonable or lacks fair support in the record." Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223-24 (2009)). Nonetheless, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]" Mayflower Sec. Co. v. Bureau of Sec, 64 N.J. 85, 93 (1973). In this case, the Board adopted the ALJ's application of the law. Therefore, we focus on the legal standard applied by the ALJ.
N.J.S.A. 43:15A-43 governs and sets forth the requirements for members of the Public Employees' Retirement System to receive accidental disability retirement benefits. The statutory language describing the relevant requirement reads as follows. A member must be "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[.]" Ibid.
In this case, the Board adopted the ALJ's finding that Viglietta has a total and permanent disability. The question before us is whether the ALJ correctly interpreted the standard to be applied to determine whether Viglietta's disability was a direct result of a work related traumatic event.
The Supreme Court in Cattani v. Board of Trustees held that accidental retirement benefits can be awarded where a preexisting disease is combined with a traumatic event. 69 N.J. 578 (1976). The Court found that "a basis for an accidental disability pension would exist if it were shown that the disability directly resulted from the combined effect of a traumatic event and a preexisting disease." Id. at 586. Relevant to that determination, an important distinction exists between (1) a preexisting condition combined with ordinary work or even extra strenuous work effort that creates disability, and (2) a preexisting condition combined with a traumatic event to create disability. The former is not an accidental disability as described by the statute, while the latter can be if the traumatic event is the substantial contributing factor. Id. at 585-86.
Four years later, in Gerba v. Board of Trustees, the Supreme Court specified that:
[A]ccidental disability in some circumstances may arise even though an employee is afflicted with an underlying physical disease bearing causally upon the resulting disability. In such cases, the traumatic event need not be the sole or exclusive cause of the disability. As long as the traumatic event is the direct cause, i.e., the essential significant or substantial contributing cause of the disability, it is sufficient to satisfy the statutory standard of an accidental disability even though it acts in combination with an underlying physical disease.
[83 N.J. 174, 186-87 (1980) (emphasis added).]
On the same day Gerba was decided, the Court also issued its opinion in Korelnia v. Board of Trustees of the Public Employees' Retirement System, 83 N.J. 163 (1980). There, again, the Court explained the governing principles as follows:
The statutory standards for an accidental disability are two-fold. They require that
the disability be the 'direct result' of a traumatic event. They also require that the disability not be the result of a 'cardiovascular, pulmonary or musculoskeletal condition which was not a direct result of a traumatic event.' N.J.S.A. 43:15A-43. While the statutory definition stresses that the resulting disability must be 'direct' in terms of its traumatic origins, it does not require that the antecedent trauma be the exclusive or sole cause of the disability
[Id. at 169-170 (citing Gerba, supra, 83 N.J. at 186-87).]
Six years later, we applied the above Supreme Court holdings in Petrucelli v. Board of Trustees of the Public Employees' Retirement System, 211 N.J. Super. 280 (App. Div. 1986). Petrucelli was a case involving a fall that caused a non-symptomatic preexisting spinal condition to morph into total disability. There, we stated:
The claimant in Gerba lost because the undisputed record established that he had symptomatic developmental arthritis for a decade and that the employment event only contributed to the progression of the disease. Id. at 188. The companion case Korelnia, 83 N.J. at 170, also recognized that in the proper circumstance 'an accidental disability may under certain circumstances involve a combination of both traumatic and pathological origins.'
In the case before us we conclude that the 'direct result' test was legally satisfied. As noted, there was no issue of credibility. Claimant was a very active 49-year-old man performing a strenuous job. He had no prior back problems of any kind. After his severe
fall down a nine-step stairway, all concede he is permanently and totally disabled because of his now-symptomatic low-back problem.
. . . We are satisfied that if claimant here cannot recover after a severe trauma, superimposed on a non-symptomatic structural anomaly, which triggered a symptom complex resulting in total disability, no claimant could ever recover accidental benefits in any circumstance where there exists a quiescent underlying condition which had caused no trouble and might never cause any trouble. We conclude that such a narrow and crabbed 'directness' test was never intended by the Legislature nor condoned by the Supreme Court in Gerba.
[Petrucelli, supra 211 N.J. Super. at 288-89.]
Thus, Viglietta was not required to prove that her fall was the sole cause of her permanent disability as stated in the conclusion of the ALJ's opinion. Contrary to the Board's finding, Viglietta was only required to prove that her fall was the substantial contributing cause of her permanent disability. We note that Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189, 199 (2007), which is relied upon by both sides in this appeal, directly reaffirms Cattani, Gerba and Korelnia. That case, however, focuses on what constitutes a traumatic event versus work effort not on the medical causation issue presented here.
Because the Board did not apply the proper legal standard, we are constrained to remand this matter to the Board for reconsideration of Viglietta's application under the appropriate standard. We affirm the decision to grant ordinary retirement benefits to Viglietta, but remand for reconsideration as to whether she is entitled to the enhanced compensation provided by N.J.S.A. 43:15A-43.
Affirmed in part and reversed and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION