Toscano v. Bd. of Trs., Pub. Emps.' Ret. Sys.
| Decision Date | 09 May 2022 |
| Docket Number | A-0861-20 |
| Parties | PATRICIA TOSCANO, 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 April 6, 2022
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury PERS No. xx-8655.
Samuel M. Gaylord argued the cause for appellant (Szaferman, Lakind Blumstein & Blader, PC, attorneys; Samuel M. Gaylord, on the brief).
Allyson V. Cofran, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Melissa H. Raska, Assistant Attorney General, of counsel; Allyson V. Cofran, on the brief).
Before Judges Whipple, Geiger and Susswein.
Petitioner Patricia Toscano appeals from a final agency decision of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denying her application for ordinary disability retirement benefits under N.J.S.A. 43:15A-42. The Board adopted the initial decision of the Administrative Law Judge (ALJ), who found Toscano was "ineligible for either an accidental disability pension or an ordinary disability pension."[1] We affirm in part, vacate in part, and remand.
We take the following facts from the record. Toscano was employed by the Green Brook Board of Education as a paraprofessional for seventeen years. In that role, she worked with special needs children on various tasks, including taking notes for them ensuring they stayed on task and focused, and helping them maintain composure both physically and verbally.
Toscano suffered significant injuries from accidents at work in 2013 and 2016. Toscano's job duties included ensuring that her assigned student stayed on task and focused throughout the day and did not get "out of control" verbally or physically. In October 2013, Toscano was assigned to an eleven-year-old autistic student who was often "very physical"-"he could hit, bite, and headbutt you," requiring Toscano to maintain control over him. She sometimes had to seek assistance from someone "certified to physically restrain a student when they become physical."
On October 18, 2013, Toscano was working directly with one student. She briefly got up to retrieve an item for the student. As she moved around a table seated with multiple students, Toscano asked a student to move his chair so she could pass. The student swiftly moved his chair, causing Toscano to fall. She landed on her left side, "black[ed] out," and "saw . . . black and stars."[2] Toscano experienced "agonizing pain" in her left arm, fractured her left elbow, injured her left wrist, and underwent surgery on her wrist and hand due to nerve damage.
Due to her injuries, Toscano remained out of work until March 2014. During that period, she received treatment for a concussion and medication side effects from Dr. Erin Elmore, who was provided by the workers' compensation carrier.
In December 2013, Toscano underwent a neuropsychological evaluation by Karen Tennyson, Ph.D., a clinical neuropsychologist. Dr. Tennyson reviewed Toscano's medical history and administered a battery of tests. At the time of the evaluation, Toscano was prescribed Topomax for nausea and Oxycodone for pain. She continued to complain of nausea, vomiting, severe headaches, blurred vision, tingling hands and pain in her limbs, ears, and gums, which occurred after her first accident. Toscano's medical history included breast cancer, irritable bowel syndrome, renal disease, discoid lupus, rheumatoid arthritis, and numerous surgeries, including a bilateral mastectomy with reconstruction, bilateral oophorectomy, colon resection, and six rectal surgeries. Testing revealed that Toscano's full-scale IQ was in the borderline range, as were her working memory index and processing speed index. In numerous respects, Toscano scored in the low end of average. Dr. Tennyson reported that throughout the evaluation, Toscano's mood appeared mildly depressed, anxious, and somatically focused, but two tests revealed symptom validity. Dr. Tennyson noted, however, that "there were several occasions during testing where [Toscano] appeared to provide slightly exaggerated and atypical responses."
Dr. Tennyson issued a January 2, 2014 report. She diagnosed Toscano with post-concussion syndrome and undifferentiated somatoform disorder.
Toscano's cognitive skills fell in the low average to average range, which was deemed "fairly consistent" with her ninth-grade education. Dr. Tennyson reported that Toscano's "level of anxiety likely impacted her performance" on certain tests as did her "excessive[]focus on her physical symptoms[.]"
Dr. Tennyson noted that "[t]he physical symptoms [Toscano] reports including headaches and nausea are consistent with post[-]concussion syndrome; however, she reported these symptoms to such a degree during the evaluation that these symptoms appeared somewhat exaggerated as the level of disability she reported is not consistent with her level of injury." Dr. Tennyson concluded that "the majority of [Toscano's] complaints are either somatic (such as preoccupation with her injuries and nausea) or psychological/emotional (such as anxiety, depression and frustration with her slowed recovery)." Dr. Tennyson opined that despite Toscano's medical history, "it is likely that her physical complaints and excessive somatic focus are in excess of what would be expected and do not fully explain all of her physical complaints, which meets [the] criteria for a diagnosis of a somatoform disorder."[3] Dr. Tennyson recommended that Toscano receive psychotherapy to address her "tendency to excessively focus on somatic complaints as well as her high level of depression and anxiety."
On March 10, 2016, Toscano tripped over a music box while guiding a student during music class, fell backwards, landed on her left arm and tilted here neck back, seriously injuring her neck and reinjuring her left arm. Toscano felt "sizzles" that felt like "painful electricity" in her neck. The same medical facility that initially treated Toscano believed she suffered another concussion, refractured her left arm, and reinjured her left elbow. She was transported by ambulance to an emergency room.
Toscano returned to work approximately forty-five days later but continued to experience headaches, neck pain, and difficulty walking and standing. She continued to receive treatment from Dr. Elmore through workers' compensation.
Toscano completed the 2016 school term and went back to work the next term, but stated she was having "severe trouble" working, complaining of headaches, neck pain, and difficulty walking and standing due to "severe pain" and tingling sensations. Toscano continued working until February 2017, when she was put on bed rest by her neurosurgeon, Dr. Charles A. Gatto, due to the risk of spinal cord injury. Dr. Gatto diagnosed Toscano with "[c]ervical stenosis with cervical kyphosis and cervical disk herniation with progressive symptoms at [levels] C4-5 and C5-6 and C6-7." In March 2017, Toscano underwent three-level cervical fusion surgery with fixtures. Following the surgery, she was unable to work for approximately six months and received workers' compensation disability benefits.
Following the neck surgery, Toscano wore a neck brace for four and one-half months. When the neck brace was removed, she experienced severe pain on the right side of her face. An MRI revealed that the neck brace had permanently dislocated Toscano's jaw. In July 2017, Toscano began treatment for her dislocated jaw with David Schor, D.D.S, a temporomandibular joint specialist. She was also referred to a neurologist for neuropathy. Toscano continued to receive workers' compensation disability benefits until April 2018.[4]
Toscano returned to work in the Fall of 2017 but had trouble performing her job duties. She continued to experience severe pain at work, complaining of headaches, neck pain, and difficulty walking and standing from severe pain in her feet and legs, mostly on the right side, along with tingling in her feet, hands, and fingertips. On March 4, 2018, Dr. Elmore declared her disabled and advised her not to return to work. She continued to receive workers' compensation benefits until April 2018. She has not worked since.
According to her employer, Toscano's job duties were to:
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