MARIA GRIECO-HICKS VS. BOARD OF TRUSTEES, TEACHERS' Â PENSION AND ANNUITY FUND(TEACHERS' PENSION AND ANNUITY FUND, DEPARTMENT OFTHE TREASURY)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0799-15T2
MARIA GRIECO-HICKS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, TEACHERS'
PENSION AND ANNUITY FUND,
Respondent-Respondent.
___________________________________
Argued December 6, 2016 – Decided May 11, 2017
Before Judges Fisher and Ostrer.
On appeal from the Teachers' Pension and
Annuity Fund, Department of the Treasury,
Docket No. 1-487853.
Samuel M. Gaylord argued the cause for
appellant (Gaylord Popp, LLC, attorneys; Tanya
L. Phillips, on the briefs).
Amy Chung, Deputy Attorney General, argued the
cause for respondent (Christopher S. Porrino,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Ms.
Chung, on the brief).
PER CURIAM
Petitioner Maria Grieco-Hicks appeals from the September 10,
2015 final decision of the Teachers' Pension and Annuity Fund
Board of Trustees (the Board), denying her application for
accidental disability retirement benefits. The Board adopted the
initial decision of the Administrative Law Judge (ALJ). He found
that petitioner failed to meet her burden to show she was
permanently and totally disabled, and her alleged disability was
directly caused by a traumatic event at work. Petitioner
challenges both findings on appeal. Because we reject petitioner's
argument on the former, we need not reach the latter, and,
therefore, affirm.
I.
Petitioner's claim arises out of a workplace accident on
September 3, 2010. Petitioner had been an art teacher for fourteen
years at Trenton Central High School. She was fifty-seven years
old. While standing on a step-stool to place art equipment on a
shelf, she misstepped and fell. She struck an old printing press
and her right foot was tucked under her buttocks as she hit the
floor. The awkward fall injured her knee. Despite experiencing
pain, she continued to work while under treatment until October
21, 2010. At that point, a physician reviewed an MRI performed
on October 6, 2010, which had revealed bone bruises and multiple
tears of meniscuses and ligaments including the anterior cruciate
ligament (ACL). The physician immediately advised her not to
return to school.
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After leaving work, petitioner received treatment from a
variety of specialists over a year and a half, which improved her
knee condition — albeit not to full strength. She underwent knee
surgery in March 2011 to remove the torn meniscuses and reconstruct
her ACL by grafting a ligament from a cadaver. She followed up
with physical therapy and received nerve blocks from a pain
management specialist. MRIs in September 2011 and in April 2012
showed bowing and partial tearing of the ACL graft.
By late 2011, she continued to complain of pain. She began
seeing a workers' compensation orthopedist, Steven R. Gecha, M.D.
Dr. Gecha discharged her in March 2012, concluding she had reached
her maximum level of medical improvement. His report acknowledged
that petitioner declined to pursue a second surgery that Dr. Gecha
explained had a fifty percent chance of improving her symptoms.
Dr. Gecha stated that, even though she was discharged,
petitioner was restricted from standing and walking for extended
periods of time. However, she had "[n]o limit to sitting . . . ."1
In prior reports, he suggested "sedentary work only with only a
1 The restrictions included: "[m]aximum 2 hours a day of standing
and walking. Less than 1 hour a day of driving. . . . No twisting
to transfer objects, squatting below chair levels, climbing
ladders or cat walks, climbing more than 1 flight of stairs,
lifting or carrying greater than 20 pounds, kneeling."
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limited amount of total standing and walking . . . . No limit to
sitting . . . ."
Petitioner applied for accidental disability retirement
benefits in July 2012. After the Board initially denied her
application, the matter was referred to the Office of
Administrative Law for a contested hearing, which was held in
April 2015. The witnesses included petitioner and two experts:
Arthur Becan, M.D., who testified on petitioner's behalf, and
Jeffrey F. Lakin, M.D., whom the Board retained.
Petitioner testified that she continued to experience daily
pain, swelling, and instability in her knee. Her knee hurt when
she walked, it was difficult to navigate steps, and she had trouble
sleeping through the night. She testified that she could no longer
work as an art teacher at Trenton Central High School. She
contended that the job entailed a lot of walking, standing, stair-
climbing, and carrying various supplies. She acknowledged,
however, the building was handicap accessible and an elevator was
available to persons provided a key to it. Moreover, petitioner's
formal job description did not explicitly identify physical tasks
of the position.2
2 Plaintiff's job description identified the following
"performance responsibilities":
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Based upon his August 2013 examination of petitioner and a
review of her records, Dr. Becan opined that petitioner was totally
and permanently disabled. He reviewed her various tears, operation
and treatments, and concluded she was left with severe progressive
arthropathy3 of the right knee. He further opined that she had an
"unstable arthritic knee" that caused buckling, which contributed
1. Plans in written form and executes in
practice a program of study that meets the
individual needs, abilities, and interests of
all students assigned.
2. Creates a classroom environment that is
conducive to learning and appropriate to the
. . . interest of the student.
3. Guides the learning process toward the
achievement of curriculum goals[,] . . .
establishes clear objectives for all les[s]ons
. . . [and] communicate[s] these objectives to
students.
4. Strive[s] to implement by instruction and
action the District's philosophy of education
and instructional goals and objectives.
5. Assists in the selection of books . . . and
other instructional materials.
6. Establishes and maintains cooperative
relations with others.
7. Perform[s] such tasks and assumes such
responsibilities as directed by the
principal[.]
3 "Arthropathy" is defined as, "[a]ny disease affecting a joint."
Stedman's Medical Dictionary 161 (28th ed. 2006).
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to the knee's continued atrophy. He testified that petitioner
tore her ACL again after surgery, but did not identify the cause.
He opined that she "no longer can perform prolonged walking,
prolonged standing, prolonged sitting. She is unable to climb
stairs, squat, kneel or crawl, and all of these are activities
that were required as her occupation as an art teacher." Dr.
Becan opined that petitioner would likely need a total knee
replacement.
Dr. Lakin disagreed with Dr. Becan's conclusion. He conducted
a December 2012 examination and records review. According to Dr.
Lakin, petitioner complained her knee would give out once a month,
but "her main complaints . . . were just sensitivity . . . along
the incision." She told him she was able to navigate stairs and
walk without a brace or other aids. He opined that petitioner's
knee was stable and had excellent motion. He found no evidence
of arthropathy. He minimized the significance of the tearing of
the ACL graft, which he said was intact. He concluded that
petitioner was not totally and permanently disabled from the normal
activities of her job as a result of the accident.
The ALJ credited petitioner's complaints of instability,
numbness, tingling, her daily pain and swelling, difficulty
sleeping, going up and down steps, and her inability to stand for
more than ten minutes. However, he rejected her claim that these
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complaints rendered her unable to perform her essential job duties.
The ALJ reasoned:
[P]etitioner's case comes down to her
assertion that she is totally and permanently
disabled because she is no longer able to
perform prolonged walking, prolonged standing
and prolonged sitting. She also maintains
that she is unable to climb stairs, squat,
kneel, or crawl, and that these are all
activities necessary in the petitioner's
occupation as an art teacher.
Several factors militate against
petitioner's position. First, aside from
petitioner's own testimony, nothing in the
record tends to show that she was required to
walk, stand or sit for prolonged periods of
time. Nor is there any suggestion that
petitioner was required to squat, kneel or
crawl. The only activity that Dr. Becan
suggests petitioner cannot do that is in the
record as required is climbing steps.
However, petitioner agreed that her school had
an elevator, but that it required a key that
she did not have. There is no evidence that
petitioner could not get such a key, nor has
petitioner produced any evidence that the
Trenton school district would not move her to
a classroom that did not require steps to
access her classroom, such as a classroom on
the first floor. Petitioner did not offer
proof that she would be incapable of
performing her job if using some form of
assistance, such as a cane or wheelchair.
Further, petitioner admitted that ramps had
been installed at her school. Simply put, I
find it unlikely that the administration of
the Trenton school district would require a
teacher to use stairs if she could not do so,
and that the Trenton school district would
terminate her from her employment if she could
not do so. Petitioner offered no such proof
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that she would have been terminated for an
inability to use stairs.
The testimony of the experts evinces
little dispute over petitioner's ability to
return to work. Dr. Lakin testified that she
was not totally and permanently disabled and
could return to work. Dr. Becan is of the
opinion that petitioner cannot do physical
actions that are not even required in
petitioner's job description.
The ALJ also found that petitioner was not totally disabled
in her knee, noting that even Dr. Becan found that petitioner had
100 degrees of flexion, no atrophy in her right leg, and only a
"mild loss" of strength.
Turning to the issue of causation, the ALJ found both experts
credible, but Dr. Lakin's opinion more persuasive. "Dr. Lakin
explained that if a traumatic injury were causing her arthritis,"
she would be experiencing symptoms that she had not described.
Instead, "the MRIs only showed typical age-related arthritis.
Further, there was no degeneration." The ALJ concluded that
petitioner failed to prove that her fall "was the direct cause of
her right-knee issues."
The Board subsequently adopted the ALJ's initial decision and
denied petitioner's application for accidental disability
retirement benefits.
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II.
We exercise a narrow scope of review of the Board's decision.
We will sustain the Board's decision "unless there is a clear
showing that it is arbitrary, capricious, or unreasonable, or that
it lacks fair support in the record." Russo v. Bd. of Trs., Police
& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (internal quotation
marks and citation omitted). However, we are not bound by the
agency's statutory interpretation or other legal determinations.
Ibid.
In order to qualify for accidental disability retirement
benefits, petitioner was required to demonstrate she was
"permanently and totally disabled as a direct result of a traumatic
event occurring during and as a result of the performance of [her]
regular or assigned duties." N.J.S.A. 18A:66-39(c). See also
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J.
189, 194-95 (2007) (setting forth elements of a claim for
accidental disability retirement benefits in a parallel statute).
The principal issue is whether petitioner was "permanently and
totally disabled" from performing her normal duties. Petitioner
bears the burden of proof. Bueno v. Bd. of Trs., Teachers' Pension
& Annuity Fund, 404 N.J. Super. 119, 126 (App. Div. 2008), certif.
denied, 199 N.J. 540 (2009).
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To determine whether a person is "permanently and totally
disabled," the Supreme Court adopted the standard set forth in
Getty v. Prison Officers' Pension Fund, 85 N.J. Super. 383 (App.
Div. 1964), that is, "the criterion is whether or not [the
petitioner] is employable in the general area of his ordinary
employment . . . ." Skulski v. Nolan, 68 N.J. 179, 205-06 (1975)
(quoting Getty, supra, 85 N.J. Super. at 390). The Getty court
rejected tests at either of two extremes: one requiring that the
petitioner be "generally unemployable" and the other requiring
that the petitioner be "disabled from performing the specific
functions for which he was hired."4 Getty, supra, 85 N.J. Super.
at 390 (emphasis added). In adopting the Getty standard, the
Skulski Court emphasized that its standard "places no requirement
upon the applicant to show physical inability to perform
4 These two extremes relate to two prior cases described in
Skulski, supra, 68 N.J. at 204-05. The Court of Errors and Appeals
in Meehan v. Cnty. Employees' Pension Comm'n, 135 N.J.L. 17 (E. &
A. 1946), affirmed the denial of a pension to a prison guard who
lost his left eye as a result of a workplace injury, stating, "The
sole question is whether the disability suffered permanently
incapacitates him from reasonably performing the duties of his
position." Id. at 18. By contrast, the old Supreme Court, in
Simmons v. Policemen's Pension Comm'n, 111 N.J.L. 134, 135-36
(Sup. Ct. 1933), rejected the finding that a police officer was
not permanently disabled because he was still fit for desk duty,
stating "a fireman is a fireman, a policeman a policeman, and
neither a desk clerk"; rather, the petitioner was permanently
disabled if unable to perform "the ordinary everyday duties of a
policeman."
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substantially different duties or to produce evidence of general
physical unemployability provided, however, that employer has work
for him in the general area of his employment." Skulski, supra,
68 N.J. at 206.
We applied this test in Bueno, which involved a claim for
ordinary disability retirement benefits. Bueno, supra, 404 N.J.
Super. at 122. We did so notwithstanding that the petitioner was
required to show she was "physically or mentally incapacitated for
the performance of duty," N.J.S.A. 18A:66-39(b), as opposed to
showing she was "permanently and totaled disabled", N.J.S.A.
18A:66-39(c), which is required for accidental disability
retirement benefits. In Bueno, an experienced teacher suffered
from adjustment and anxiety disorders as a result of the manner
in which she was supervised and other conditions at a New Brunswick
school where she had worked for the last few years. Bueno, supra,
404 N.J. Super. at 123-24. The Board concluded that Bueno was
capable of teaching in a different school, in a more supportive
environment. Id. at 124. Applying Skulski, we affirmed the denial
of benefits to Bueno because she "failed to even prove that she
was disabled from teaching for other employers." Id. at 131.
Applying Skulski and Bueno to this case, we discern no error
in the Board's decision. The evidence demonstrates that petitioner
was "employable in the general area of [her] ordinary employment,"
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Skulski, supra, 68 N.J. at 205-06. She failed to show that she
was unable to teach high school art, even if she could not teach
it in precisely the same manner she had before her injury. As the
ALJ noted, her school was handicap accessible and had an elevator.
Accordingly, for example, she did not need to climb multiple
flights of stairs.
Dr. Gecha, whose opinions petitioner cites on appeal,
concluded that petitioner had no limitations on sitting, so long
as she rose to stretch periodically.5 Crediting petitioner's
complaints of pain, she could still stand for brief periods of
time. As the ALJ observed, petitioner "did not offer proof that
she would be incapable of performing her job if using some form
of assistance, as a cane or wheelchair." There was no evidence
that even if she used a wheelchair, she would be unable to move
about a classroom to guide and teach art students, particularly
if reasonable accommodations to classroom layout were made.
Furthermore, the Trenton Board of Education, as well as any
other public school employer, would have been obliged to make
reasonable accommodations for petitioner's limitations to the
5 We recognize that Dr. Becan stated that petitioner could not sit
for prolonged periods of time. However, petitioner did not make
that claim in her testimony, and Dr. Gecha stated she had no
limitations on sitting. We presume that Dr. Becan meant only,
consistent with Dr. Gecha, that petitioner would need periodically
to rise to stretch.
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extent they were not already provided. See 42 U.S.C. §
12112(b)(5)(A) (defining "discriminat[ion] against a qualified
individual on the basis of disability" to include "not making
reasonable accommodations to the known physical . . . limitations
of an otherwise qualified individual with a disability who is an
. . . employee" (internal quotation marks omitted)).
Inasmuch as we affirm the Board's decision that petitioner
did not prove that she was totally and permanently disabled, we
need not reach the Board's determination that petitioner failed
to prove causation.
Affirmed.
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