In the Matter of Thailia Tretsis, Middlesex County, Sheriff’s Office
Superior Court of New Jersey, Appellate Division
No. A-3682-19; 2022 WL 453869
Appellant, Thalia Tretsis, appeals from the May 1, 2020 final administrative determination of the Civil Service Commission removing her from her position as a sheriff’s officer, but modifying the removal to a resignation in good standing. The Commission adopted the findings of fact and conclusions of law from the initial decision of the Administrative Law Judge (ALJ) who found the appellant could not perform her duties at the time of her termination due to a knee injury from which she could not recover.
Appellant injured her right knee on March 6, 2015, when she fell on ice in her job-site parking lot. Appellant had a workers’ compensation claim for this incident. Between March and August 2015, she treated with two orthopedic doctors, and eventually returned to light duty and then full duty. Over a year later, when appellant complained about continuing issues with her knee, she was referred to Dr. Gallick, who eventually performed arthroscopic surgery on her knee in January 2017. Dr. Gallick originally testified that patients with similar conditions usually return to light duty in a short period of time, and then full duty in three months. However, appellant continued to complain of pain and weakness through May 2017. Dr. Gallick then sent Claimant for a functional capacity exam (FCE), which was performed in June 2017. The results confirmed to Dr. Gallick that appellant could not perform the full duties of a sheriff’s officer, and he opined that she had reached MMI.
Appellant requested a second opinion, and was sent to Dr. Epstein, who recommended injections, which she received in August 2017. Appellant was sent for a second FCE in September 2017 when she was still complaining of pain. Dr. Gallick and Dr. Epstein both opined that Claimant had reached her MMI after reviewing the second FCE. In September 2017, the County sought to remove appellant from her position due to the FCE. A hearing was held, and appellant was removed as of November 14, 2017. Appellant requested a hearing, and the matter was transferred to the OAL, where another hearing took place. The ALJ concluded that appellant was unable to perform the duties of a sheriff’s officer at the time her employment was terminated. The ALJ evaluated the credibility of the witnesses, which included Drs. Gallick and Epstein for the County, who were found to be credible, and Dr. Polakoff for the appellant, who was found to be not credible. The ALJ then concluded that appellant was incapable of performing her job duties at the time of her termination, and because her separation was not due to conduct or action worthy of discipline, the termination was modified to a resignation in good standing. The Commission thereafter adopted the decision as the final administrative decision. Appellant appealed.
The court holds that appellant’s arguments are “so lacking in merit as to not warrant much discussion in a written opinion.” They held that applying their highly deferential standard of review, the court is satisfied that the record amply supports the Commission’s determination that the appellant could not perform the duties of a sheriff’s officer when she was removed from her employment. The court further opined that the ALJ and the Commission considered all of the medical and lay evidence and concluded that the County’s proof was more persuasive than appellant’s single witness. The court held that the ALJ’s findings are fully supported by the record, and her legal conclusions are unassailable.
Smith v. Township of South Hackensack
Superior Court of New Jersey, Appellate Division
No. A-3258-20; 2022 WL 497657
Plaintiff, a volunteer firefighter, was struck by a South Hackensack firetruck at a time when, as he alleges, it was being used by the individual defendants to bar hop. N.J.S.A. 34:15-43 provides that “each and every member of a volunteer fire company doing public fire duty…who may be injured in line of duty shall be compensated” under the Workers’ Compensation Act. Despite this, plaintiff filed an action for personal injury damages in the Law Division against South Hackensack and the individual defendants.
Seventeen months after the filing, defendants moved to dismiss, asserting that the trial court lacked subject matter jurisdiction, that the Division of Workers’ Compensation had exclusive jurisdiction, and that plaintiff’s sole remedy was within the Workers’ Compensation Act. The motion judge rejected the subject matter jurisdiction argument, but did find the Division possessed primary jurisdiction, and transferred the matter. Despite this transfer, the Division would not recognize the matter and advised plaintiff that he had to file a petition for benefits in order to have the matter adjudicated. Plaintiff moved for a reinstatement of his complaint, but it was denied.
The Division’s supervising judge reconfirmed that the matter would not be adjudicated unless a petition for benefits was filed, regardless of the transfer order. Plaintiff again moved in the trial court for reconsideration, and this was again denied. Plaintiff then filed a notice of appeal and moved in the Superior Court for a determination about the appealability of the trial court order transferring the matter to the Division. This appeal was granted.
The invocation of the primary jurisdiction doctrine was a mistaken exercise of the judge’s discretion. The New Jersey Supreme Court recognizes that the superior court has jurisdiction to determine the existence of the employment relationship and such other employment issues raised by way of defense to the employee’s tort action. The court finds that the four recognized grounds for the invocation of the primary jurisdiction doctrine weighs heavily in the plaintiff’s favor. The court concluded that the judge abused her discretion in putting plaintiff through the burden of prosecuting a claim in another forum for the sole purpose of proving that forum had no jurisdiction.
The court further held that the plaintiff commenced his action in superior court, and as he is the “master of his complaint,” was entitled to pursue it in the superior court until defendants show the occurrence falls within the workers’ compensation laws. The court order was reversed, the transfer order was vacated, and the matter was remanded for entry of an order denying defendants’ motion to dismiss.
MEMO -2022-02-14 4866-0289-1022 v.1.docx
4892-2623-6689, v. 1