IN THE MATTER OF THALIA TRETSIS, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 15, 2022
• Docket: A-3682-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3682-19

IN THE MATTER OF THALIA TRETSIS MIDDLESEX COUNTY, SHERIFF'S OFFICE. ____________________________

Argued February 3, 2022 – Decided February 15, 2022

Before Judges Haas and Mawla.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2018-2711 and 2018-1572.

Catherine M. Elston argued the cause for appellant Thalia Tretsis.

Benjamin D. Leibowitz, Senior Deputy County Counsel, argued the cause for respondent Middlesex County Sheriff's Office (Thomas F. Kelso, Middlesex County Counsel, attorney; Benjamin D. Leibowitz, on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Craig S. Keiser, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM Appellant Thalia Tretsis appeals from the May 1, 2020 final

administrative determination of the Civil Service Commission (Commission)

removing her from her position as a sheriff's officer with the Middlesex County

Sheriff's Office (County), but modifying that removal to a resignation in good

standing. The Commission adopted the findings of fact and conclusions of law

from the initial decision of Administrative Law Judge (ALJ) Sarah G. Crowley,

who found appellant could not perform her duties at the time of her termination

due to a knee injury from which she could not recover. See N.J.A.C. 4A:2-

2.3(a)(3) (permitting an employer to remove an employee for "[i]nability to

perform duties[.]"). We affirm.

Maureen Thompson, the County's employee benefits specialist, testified

that appellant injured her right knee when she fell on ice in her job-site parking

lot on March 6, 2015. Thompson processed appellant's workers' compensation

claim for this incident. Between March and August 2015, appellant treated with

two orthopedic doctors. She then returned to work on temporary light duty and

later resumed her full responsibilities.

Thompson stated appellant left work again on unpaid leave between June

and December 2016 due to personal unrelated medical issues. When appellant

complained about continuing issues with her knee, Dr. Gregory Gallick took

A-3682-19 2 over her case. Gallick qualified as an expert in orthopedic medicine at the Office

of Administrative Law (OAL) hearing. After he reviewed appellant's medical

records, Gallick performed arthroscopic surgery on her knee on January 5, 2017.

He then prescribed medication and physical therapy.

Gallick testified that patients with similar conditions usually return to

light duty in a short period of time and are able to resume their full duties within

three months. However, appellant told Gallick she still suffered significant pain

a few weeks after the surgery, and did not clear her for light duty until mid-

February. When Gallick next saw her in March, appellant stated she was still in

pain, had trouble on stairs, was unable to run, and had weakness in her knee.

Appellant repeated these complaints when Gallick examined her in April and

May 2017.

Because appellant had not recovered as expected, Gallick recommended

that she undergo a "Functional Capacity Examination" (FCE). Monica A.

Lynch, the Director of Kinematic Consultants, Inc. (Kinematic), 1 testified on

behalf of the County and qualified without objection as an expert in FCEs.

1 Kinematic is a private company and is not affiliated with the County. According to Lynch, who had twenty years of experience at the company, Kinematic performs FCEs on employees from a number of law enforcement agencies and other public entities.

A-3682-19 3 Lynch explained that an FCE tests an employee's ability to perform tasks

associated with their jobs. By using computerized technology, the FCE

measures such skills as an employee's strength, balance, and ability to move,

lift, and pull. Each test is repeated a number of times to obtain an accurate

representation of the individual's abilities.

Kinematic performed the FCE on appellant on June 8, 2017. After

reviewing the results, Gallick found they confirmed his determination that

appellant could not perform the full duties of a sheriff's officer. Appellant told

Gallick she "did not feel comfortable going back to her regular job" because she

had pain and weakness in her knee and was unable to run. The FCE supported

these complaints and also showed that appellant's ability to lift over thirty-five

pounds was compromised. Therefore, Gallick opined that appellant had reached

her "maximum medical improvement" (MMI) level and could not perform her

required duties. 2

On June 27, 2017, Thompson attended an employee status conference with

appellant to review the FCE. Appellant asked the county to send her to another

2 Thompson and Undersheriff Kevin Harris testified about the full range of duties a sheriff's officer performed. Harris stated there was no permanent light duty available for sheriff's officers.

A-3682-19 4 doctor for a second opinion. The County agreed and arranged with its workers'

compensation carrier to have Dr. David Epstein examine appellant. Epstein

qualified as an expert in orthopedic surgery and testified at the hearing.

On July 13, 2017, Epstein evaluated appellant. She told him she was still

having pain and discomfort in her knee. He recommended gel injections, and

with appellant's consent, the first injection occurred on August 15, 2017.

However, when Epstein saw appellant again on September 7, 2017, she still

complained of knee pain. Epstein then recommended another FCE. 3

Kinematic conducted this FCE on September 18, 2017. Lynch testified

appellant still had a deficit in her balance on her right side. She failed to meet

the minimum requirements for the strength test, which also measured her

diminished ability to lift and pull. Appellant continued to complain of pain in

her knee, which worsened when bending, walking, and standing. According to

Lynch, the FCE results indicated that appellant was only able to perform light

duty work.

Gallick reviewed the results of the September FCE and Epstein's notes.

Gallick testified that a patient's MMI is reached within three or four months. In

3 Epstein stated he did not recommend another injection because appellant still experienced pain after the first one. A-3682-19 5 appellant's case, her surgery occurred in January 2017 and she was still

complaining of pain in September 2017. Therefore, Gallick opined appellant

had reached her MMI and could not perform the required duties of a sheriff's

officer.

Epstein also reviewed the September FCE. According to Epstein, the

results showed that appellant had significant limitations and continued to

complain of pain. Like Gallick, Epstein opined appellant had reached full MMI

and was unable to perform her full duties.

Harris testified that he is responsible for disciplining employees. After

receiving the September FCE, Harris reviewed appellant's record and

determined that her physical limitations prevented her from returning to full

duty.

On September 28, 2017, the County served appellant with a Preliminary

Notice of Disciplinary Action seeking to remove her from her position, together

with a summary of the results of the September FCE. Harris testified the County

Sheriff conducted a Loudermill4 hearing for appellant on that same date. 5

4 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). At a Loudermill hearing, the public employer is required to give the employee "notice [of] and an opportunity to respond" to the disciplinary charges. Ibid. 5 Harris was present at the hearing. A-3682-19 6 Following an October 25, 2017 departmental hearing, the County sustained the

charge of inability to perform the essential functions of the job and issued

appellant a Final Notice of Disciplinary Action on November 14, 2017. The

County removed appellant from her position effective that date.

Appellant requested a hearing concerning her removal, and the

Commission transmitted the matter to the OAL as a contested case. The ALJ

conducted a multi-day hearing.

Appellant did not testify at the hearing. She presented the testimony Dr.

Donald R. Polakoff, who qualified as an expert in orthopedic surgery. Polakoff

examined appellant on May 1, 2019 for about forty-five minutes. He opined

that appellant was able to perform the duties of a sheriff's officer beca use she

demonstrated for him that she could hop on one leg at a time, do pushups and

squats, and lift a file box he found in his office over her head while doing three

knee bends. Polakoff did not know how much the box weighed. Polakoff was

unable to provide any expert testimony on the value of FCE reports and did not

offer an opinion on appellant's fitness for duty at any time prior to May 1, 2019,

the date of his examination.

In her March 12, 2020 initial decision, the ALJ concluded appellant was

unable to perform the duties of a sheriff's officer at the time the County

A-3682-19 7 terminated her employment. In so ruling, the ALJ assessed the credibility of all

the witnesses. She found the County's witnesses, Gallick, Epstein, Thompson

and Harris, credible. However, the ALJ determined that Polakoff, who was

appellant's sole witness, "provided no credible testimony on the issue of

appellant's condition on the date of [her] MMI or about the validity of the FCE

examinations."

In reaching these conclusions, the ALJ explained that Gallick's and

Epstein's evaluations of appellant demonstrated she was not getting any better

following her knee surgery. She still "report[ed] pain and weakness in the knee

and an inability to run."

Gallick's and Epstein's expert diagnoses were supported by the two FCEs

Kinematic conducted in 2017. The ALJ found these "reports and tests

demonstrate[d] . . . that at the time of the appellant's removal she had reached

[MMI] and was unable to perform the duties of a sheriff's officer and was

therefore not fit for duty." The ALJ rejected appellant's contention that

Kinematic may have incorrectly performed the FCEs. The ALJ found Lynch's

credible expert testimony established that Kinematic "used all the normal

protocols on appellant" and Kinematic's "equipment is tested on a regular basis

to ensure the accuracy of the equipment."

A-3682-19 8 On the other hand, the ALJ found Polakoff's testimony was not credible

because it

did not address appellant's ability to perform her job in September of 2017, when she was removed from her position as a sheriff's officer. An appointing authority is not required to wait three, four[,] or five years for an individual to return to duty. By the appellant's own admission to Dr. Gallick and Dr. Epstein, she continued to experience weakness and limitations in September of 2017.

Therefore, the ALJ concluded "that the appellant had reached [MMI] and was

incapable of performing the duties of her position at the time of her termination."

However, because "the reason for this separation was her inability to perform

her job due to physical injury and not as the result of any conduct or action that

is worthy of discipline," the ALJ modified appellant's termination "to a

resignation in good standing."

The Commission thereafter adopted the ALJ's initial decision as its final

administrative decision and concluded the County was justified in removing

appellant from employment. The Commission also modified appellant's

removal to a resignation in good standing.

Now on appeal, appellant raises the same contentions she unsuccessfully

presented to the ALJ and the Commission. She asserts:

A-3682-19 9 [I].[6] BY DISREGARDING UNCONTESTED MEDICAL EVIDENCE ESTABLISHING THAT [APPELLANT] RECOVERED FROM HER INJURY AND IS FIT TO RETURN TO HER EMPLOYMENT AS A SHERIFF'S OFFICER, THE [COMMISSION] VIOLATED NEW JERSEY STATUTES, REGULATIONS, AND APPELLATE COURT RULINGS INTERPRETING SAME.

[II]. THE [COMMISSION'S] DETERMINATION IS ARBITRARY, CAPRICIOUS[,] AND UNREASONABLE AS IT AFFIRMED THE COUNTY'S ARBITRARY, CAPRICIOUS[,] AND UNREASONABLE CONDUCT IN TERMINATING [APPELLANT]. . . . THE [COMMISSION'S] DETERMINATION IS FURTHER ARBITRARY, CAPRICIOUS[,] AND UNREASONABLE AS THE TESTIMONY OF THE COUNTY'S WITNESSES WAS NOT CREDIBLE.

A. The County Admitted to Requiring [Appellant] to Satisfy Physical Requirements No Other Middlesex County Sheriff's Officer had to Satisfy.

B. The County Admitted that it Took Diametrically Opposed Positions Based on Identical FCE Conclusions.

C. The County Admitted that it Could Not, and Did Not, Identify Either the Essential Functions of a Sheriff's Officer's Job Referenced in the Specifications to the Charges, or the "DOT" Job Description

6 Appellant's original Point I set forth the applicable "Standard of Review." A-3682-19 10 Relied Upon by Kinematics and the County's Medical Experts.

[III]. THE [COMMISSION] ERRED BOTH IN ITS RELIANCE ON INADMISSIBLE EVIDENCE, SPECIFICALLY, THE COUNTY'S FCEs AND EXPERT REPORTS, AND FURTHER, BY IMPROPERLY SHIFTING THE BURDEN TO [APPELLANT] TO ESTABLISH THE SCIENTIFIC RELIABILITY OF FUNCTIONAL CAPACITY EXAMINATIONS WHEN IT IS WELL-SETTLED THAT THE PARTY PROPOSING THE EVIDENCE, HERE, THE COUNTY, HAS THE BURDEN TO ESTABLISH ITS SCIENTIFIC RELIABILITY.

A. Contrary to the [Commission's] Determination, It is the County's Burden to Establish the Scientific Reliability of the FCEs Relied Upon in Terminating [Appellant].

B. Notwithstanding the Inadmissibility of the FCEs in and of themselves, the County Proffered No Evidence that the Testing Protocols Were Scientifically Reliable or that the Equipment Utilized to Measure [Appellant's] Physical Capabilities was Reliable in Terms of Performance or Calibration.

C. By Lynch's Admission, the Insurance Industry Does Not Consider the Testing Conducted by Kinematics as a "Medical Evaluation."

[IV]. THE [COMMISSION] ERRONEOUSLY FAILED TO REVERSE THE COUNTY'S

A-3682-19 11 SUSPENSION OF [APPELLANT], WITHOUT PAY, IN LIGHT OF UNCONTROVERTED EVIDENCE THAT THE COUNTY VIOLATED ITS OWN POLICIES BY FAILING TO EXPLORE REASONABLE ACCOMMODATIONS FOR [APPELLANT] WHILE ON RESTRICTED OR LIGHT DUTY. . . . IN SUSPENDING [APPELLANT] WITHOUT PAY, THE COUNTY FURTHER VIOLATED [APPELLANT'S] PROCEDURAL DUE PROCESS RIGHTS.

[V]. THE [COMMISSION'S] FINAL ADMINISTRATIVE RULING VIOLATES THE CIVIL SERVICE ACT; THE [COMMISSION] ALSO FAILED TO TURN SQUARE CORNERS WITH [APPELLANT].

These arguments are so lacking in merit as to not warrant much discussion

in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons

set forth in the Commission's final administrative determination, which adopted

the well-supported findings of fact and conclusions of law the ALJ detailed in

her comprehensive initial decision. See R. 2:11-3(e)(1)(D).

Our scope of review of an administrative agency's final determination is

limited. In re Herrmann, 192 N.J. 19, 27 (2007). "[A] 'strong presumption of

reasonableness attaches'" to the agency's decision. In re Carroll, 339 N.J. Super.

429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App.

Div. 1993)). Additionally, we give "due regard to the opportunity of the one

A-3682-19 12 who heard the witnesses to judge . . . their credibility." In re Taylor, 158 N.J.

644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

The burden is upon the appellant to demonstrate grounds for reversal.

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002);

see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.

1993) (holding that "[t]he burden of showing the agency's action was arbitrary,

unreasonable[,] or capricious rests upon the appellant."). To that end, we will

"not disturb an administrative agency's determinations or findings unless there

is a clear showing that (1) the agency did not follow the law; (2) the decision

was arbitrary, capricious, or unreasonable; or (3) the decision was not supported

by substantial evidence." In re Application of Virtua-West Jersey Hosp.

Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).

When an agency decision satisfies such criteria, we accord substantial

deference to the agency's fact-finding and legal conclusions, acknowledging

"the agency's 'expertise and superior knowledge of a particular field.'" Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). It

is not our place to second-guess or substitute our judgment for that of the agency

and, therefore, we do not "engage in an independent assessment of the evidence

A-3682-19 13 as if [we] were the court of first instance." Taylor, 158 N.J. at 656 (quoting

State v. Locurto, 157 N.J. 463, 471 (1999)).

In addition, we give "due regard to the opportunity of the one who heard

the witnesses to judge . . . their credibility[,]" and therefore accept their findings

of fact "when supported by adequate, substantial[,] and credible evidence." Ibid.

(first quoting Close, 44 N.J. at 599 (second quoting Rova Farms Resort, Inc. v.

Invs. Ins. Co., 65 N.J. 474, 484 (1974))). With regard to expert witnesses, we

rely upon the trier of fact's "acceptance of the credibility of the expert's

testimony and the [judge's] fact-findings based thereon, noting that the [judge]

is better positioned to evaluate the witness' credibility, qualifications, and the

weight to be accorded [to his or] her testimony." In re Guardianship of D.M.H.,

161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599,

607 (1989)).

Applying our highly deferential standard of review, we are satisfied the

record amply supports the Commission's determination that appellant could not

perform the duties of her sheriff's officer position when respondent removed her

from employment in September 2017. See N.J.A.C. 4A:2-2.3(a)(3). The

Commission adopted the ALJ's findings of fact, which were based on her

assessment of the credibility of the expert and lay testimony. We must give

A-3682-19 14 appropriate deference to the ALJ's and the Commission's findings where, as

here, those findings are based on sufficient credible evidence in the record.

Taylor, 158 N.J. at 658-59.

Contrary to appellant's contentions, the ALJ and the Commission

considered all of the medical and lay evidence presented and concluded the

County's proofs were more persuasive than the testimony of appellant's single

witness. We defer to that well-reasoned determination. The ALJ never shifted

the burden of proof to appellant on any issue. Appellant asserts the Commission

ignored case law and statutes in its review but that claim also lacks merit because

appellant's purported authorities concerned individuals who retired on disability

pensions, not employees removed pursuant to N.J.A.C. 4A:2-2.3(a)(3).7

We also reject appellant's argument that the County provided insufficient

proof of the nature and scope of her required duties and no credible evidence

concerning the viability of the FCEs. As the ALJ correctly found, Thompson

7 Appellant devotes a portion of her brief to a discussion of an application for accidental disability retirement benefits she filed following her removal. However, as we noted in Tretsis v. Bd. of Trs., Police & Firemen's Ret. Sys., No. A-1723-18 (June 24, 2020) (slip op. at 12), the pension board properly deferred its consideration of appellant's retirement application pending the outcome of the County's action to remove appellant from employment. Therefore, nothing in appellant's still pending retirement litigation is before us in this appeal. A-3682-19 15 and Harris testified in detail concerning the sheriff's officer's position, and

Lynch provided the only expert testimony at the hearing about the validity of

the FCEs.

We also discern no merit in appellant's contention that the County

deprived her of due process during the removal proceedings. The County

provided appellant with a Loudermill hearing and a departmental hearing, and

an independent ALJ presided at her contested case hearing when the

Commission referred her appeal to the OAL.

In sum, we conclude that the ALJ's findings are fully supported by the

record and her legal conclusions are unassailable. Like the Commission, we

affirm substantially for the reasons expressed in the ALJ's comprehensive

written decision, which "is supported by sufficient credible evidence on the

record as a whole[.]" R. 2:11-3(e)(1)(D).

Affirmed.

A-3682-19 16