Opinion
DOCKET NO. A-3550-12T1
10-07-2014
MARIE SIMON-MOISE, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, L.L.C., attorneys; Louis W. Boltik, on the brief). Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Chris M. Tattory, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from the Board Trustees, Public Employees' Retirement System. Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, L.L.C., attorneys; Louis W. Boltik, on the brief). Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Chris M. Tattory, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Marie Simon-Moise appeals from a February 21, 2013 decision of the Board of Trustees of the Public Employees' Retirement System (Board). The Board adopted an Initial Decision issued by Administrative Law Judge (ALJ) Jeff S. Masin, recommending that the Board deny petitioner's application for an accidental disability retirement pension because she failed to prove that she was permanently disabled. Having reviewed the record, we find that the Board's decision is supported by substantial credible evidence. R. 2:11-3(e)(1)(D). We affirm substantially for the reasons stated by ALJ Masin.
The ALJ determined that plaintiff had suffered a "traumatic event" of the sort that could qualify her for an accidental disability pension if she were permanently disabled. See N.J.S.A. 43:15A-43; Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007). That issue is not before us on this appeal.
Petitioner's statement of facts discusses only her expert witnesses and other evidence, completely omitting any discussion of the Board's evidence. Such a one-sided presentation violates Rule 2:6-2(a)(4), which requires that the appellant's statement of facts set forth the facts "material to the issues on appeal" and "incorporat[e] all pertinent evidence." Petitioner's appendix omits the initial report of the Board's orthopedic expert, a violation of Rule 2:6-1(a)(1)(I), which requires that appellant's appendix include those documents on which respondent is likely to rely.
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We will not discuss the evidence in detail, because it is set forth at length in the Initial Decision. Plaintiff was a physical therapy assistant at the New Lisbon Developmental Center. There was no dispute that in 2008, she was injured in three different workplace incidents. In one incident, a patient fell out of a mechanical lift and landed on petitioner. In the second incident, she caught a patient in her arms as he was falling. In the third incident, a patient walking behind her punched petitioner on the back of the neck. According to petitioner, her neck, shoulders and arms were injured in these incidents.
The primary issue in the case was whether the injuries caused plaintiff to become permanently disabled. The evidence required the ALJ to determine which side's medical experts were more credible, and whether petitioner was a credible witness. The judge found that petitioner's testimony was not credible in significant respects. The judge also found that the Board's experts were "more persuasive" than petitioner's experts.
To cite one notable example, petitioner's expert Dr. Rosen testified that petitioner suffered from reflex sympathetic dystrophy (RSD) caused by a brachial plexus injury, and the condition was disabling. However, the Board's expert Dr. Berman cogently explained why objective medical tests, such as an EMG, and objectively observable examination results, such as the lack of muscle atrophy in petitioner's arms, demonstrated that petitioner could not be suffering from a brachial plexus injury and RSD. The ALJ found Dr. Berman's opinion persuasive.
The Board accepted the ALJ's findings. After reviewing the record in light of the applicable standard of review, we find no basis to disturb the Board's decision. See Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995). On this appeal, petitioner primarily contends that the Board's decision is against the weight of the evidence. We disagree. Petitioner's appellate contentions are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
/s/
CLERK OF THE APPELLATE DIVISION