Mitchell v. Bd. of Trs.
| Docket Number | A-2642-21 |
| Decision Date | 31 August 2023 |
| Parties | CHERIE MITCHELL, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued June 20, 2023.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury PERS No. xx6372.
Herbert J. Stayton, Jr., argued the cause for appellant (Stayton Law, LLC, attorneys; Herbert J. Stayton, Jr., on the brief).
Payal Y. Ved, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney Sookie Bae-Park, Assistant Attorney General, of counsel; Payal Y. Ved, on the brief).
Before Accurso and Messano, Judges.
Appellant Cherie R. Mitchell had been employed as a licensed practical nurse (LPN) at Ancora Psychiatric Hospital since 2005, when on November 21, 2014, a combative patient she and others were attempting to restrain forcefully kicked her backwards against a "firebox." Mitchell injured her neck and right shoulder, which had been surgically repaired twice before in 2010 and 2013 due to work-related injuries. After each surgery, Mitchell had returned to her position at Ancora. Mitchell's physicians initially prescribed a conservative course of treatment, but, ultimately, she underwent a third shoulder surgery and received epidural injections in her cervical spine. For reasons we explain in greater detail, Mitchell never returned to her position.
Mitchell applied for accidental disability retirement (ADR) benefits, see N.J.S.A. 43:15A-43(a), but the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denied her application. The Board concluded that Mitchell was "not totally and permanently disabled from the performance of [her] regular and assigned job duties," nor "physically or mentally incapacitated from the performance of [her] usual or other duties that [her] employer [wa]s willing to offer," and "there [wa]s no evidence in the record of direct causation of a total and permanent disability."
Mitchell appealed, and the matter was transferred to the Office of Administrative Law as a contested case. An administrative law judge (ALJ) conducted the hearing over two days and considered the testimony of Mitchell, her orthopedic expert, Dr. David Weiss, and Robin McGuigan. McGuigan was the human resources assistant at the Department of Human Services (DHS), which employed Mitchell, who was familiar with her case. Dr. Jeffrey Lakin testified as the Board's orthopedic expert.
The ALJ rendered an initial decision affirming the Board's denial of ADR benefits. She determined Mitchell had failed to prove "an incapacity to perform duties in the general area of her ordinary employment as an LPN," and that she was not "disabled from working as an LPN for other employers." The ALJ also concluded that if the Board "determine[d] . . . [Mitchell was] in fact disabled," she had failed to prove "her alleged disability occurred as a direct result of the November 21, 2014 traumatic event." The ALJ determined "the work accident was not the essential significant or substantial contributing cause of [Mitchell]'s alleged disability."
Mitchell filed exceptions. On March 17, 2022, the Board "adopted the ALJ's decision affirming" its previous denial of ADR benefits to Mitchell. This appeal followed.
In several points and subpoints in her brief, Mitchell essentially argues that she satisfied the standards set out by the Court in Richardson v. Board of Trustees, Police &Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), and the Board's denial of ADR benefits was arbitrary, capricious and unreasonable. Mitchell also contends Dr. Lakin's testimony was entitled to "little weight."
Mitchell additionally raises several points for the first time on appeal that focus on her interaction with DHS and Mitchell's request for workplace accommodation based on a restriction purportedly placed on her work duties by her medical providers. Mitchell first argues that DHS administratively determined it could not reasonably accommodate her medical restrictions, which conclusively demonstrates Mitchell was permanently disabled from performing the essential functions of an LPN. Mitchell also claims that based on DHS's determination, the doctrines of res judicata and collateral estoppel bar the Board from denying her ADR benefits. Mitchell additionally argues the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, "preempts" the Board's decision that she is not totally and permanently disabled and unable to perform the essential duties of her position as an LPN. Lastly and alternatively, Mitchell argues the record supports a finding that she is entitled to ordinary disability retirement (ODR) pension benefits. See N.J.S.A. 43:15A-42. We have considered these arguments in light of the record and applicable legal standards. We affirm. I.
Dr. Weiss was not one of Mitchell's treating doctors, but at the hearing before the ALJ, he reviewed the course of Mitchell's treatment following the November 2014 incident. The treatment began conservatively but ultimately led to the surgical repair of a complete tear of the rotator cuff in her right shoulder by Dr. Luke Austin in May 2015. Dr. Weiss also reviewed the treatment for pain in Mitchell's cervical spine by Dr. Theodore D. Conliffe, including two epidural injections. Dr. Weiss, who personally reviewed the MRI of Mitchell's cervical spine, opined that she had suffered a herniated disc at C-3-C-4.
Dr. Weiss testified that "given the injuries to both [Mitchell's] right shoulder and cervical spine[,] she would be unable to engage in either the functional or postural requirements" of her job as an LPN. The doctor opined that Mitchell could still "perform sedentary work . . . which would render her below the functional requirements of a [LPN]." He further concluded the November 2014 incident was the cause of Mitchell's injuries and limitations.
On cross-examination, Dr. Weiss acknowledged that restrictions on Mitchell's ability to lift more than ten to fifteen pounds were "self-reported" and not the result of any tests he had administered. He also acknowledged that Mitchell would be able to perform "a significant portion of her job duties," and Dr. Austin's November 2016 post-operative note indicated Mitchell could return "to normal activities" with "no restrictions" on the use of her shoulder. On redirect, Dr. Weiss acknowledged that Dr. Conliffe and Dr. Barrett Woods, a spinal surgeon with whom Mitchell had consulted, cleared her to return to work and released her from their care in May 2016 with a ten-pound weightlifting limit.
Robin McGuigan was the ADA coordinator for DHS, and she engaged in the required interactive process with Mitchell upon her clearance to return to work in May 2016. See, e.g., Tynan v. Vicinage 13 of the Superior Ct., 351 N.J.Super. 385, 400-01 (App. Div. 2002) (). Mitchell requested an accommodation for the ten-pound weightlifting limit.
McGuigan sent DHS's "Jobs Demands and Medical Capabilities Form," that listed various functions performed by LPNs to Dr. Woods to complete. Dr. Woods indicated that Mitchell had a ten-pound weightlifting restriction and could not do "pushing-pulling," but she was otherwise unrestricted in her ability to perform her job duties.
McGuigan agreed that the job duties of an LPN as described by the Civil Service Commission did not include some duties performed by an LPN at Ancora, for example the need to lift or move adult patients weighing at least 100 pounds. McGuigan contacted eight other facilities to determine if they could accommodate an LPN with Mitchell's medical restriction; none could.
On August 22, 2016, McGuigan advised Mitchell in writing that her request for an accommodation was denied and offered Mitchell the option to resign in good standing or retire. If Mitchell chose neither option, McGuigan stated Ancora would "be forced to take the necessary action to separate [Mitchell] from State Service in accordance with N.J.A.C. 4A:2-2.3(a)(3), Inability to Perform Duties."
Mitchel testified before the ALJ about her current medical condition and restrictions on her activities of daily living. She also said that Dr. Woods had agreed to increase her weightlifting restriction to twenty-five pounds and provided a note to that affect, but McGuigan informed her that her request for an accommodation was denied.[1] On cross-examination, Mitchell reviewed the essential job functions for an LPN at Ancora and acknowledged her ability to perform most of them, albeit some with limitations, and an inability to perform a few. For example, Mitchell said she was unable to push wheelchairs or reposition patients in bed.
Dr Lakin evaluated Mitchell in March 2018. He testified about the various tests he performed during the examination, stating most were objective in nature. Dr. Lakin opined that Mitchell had had an excellent recovery from shoulder surgery. The doctor, who had reviewed only the radiological reports and not the MRI imaging of Mitchell's cervical spine, concluded the MRI demonstrated "multi-level changes of degeneration." Dr. Lakin testified that Mitchell had no "physical restrictions or limitations" because of her cervical spine and was fully capable of performing her job duties as an LPN. Mitchell's counsel...
To continue reading
Request your trial