Opinion
DOCKET NO. A-0377-14T1
04-05-2016
MICHAEL BARR, Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Samuel J. Halpern argued the cause for appellant. Robert S. Garrison, Jr., Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Garrison, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS No. 3-10-39437. Samuel J. Halpern argued the cause for appellant. Robert S. Garrison, Jr., Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Garrison, on the brief). PER CURIAM
Petitioner Michael Barr appeals from respondent Board of Trustees of the Police & Firemen's Retirement System's (Board) August 5, 2014 final determination adopting an administrative law judge's (ALJ) initial decision to deny "reopening [petitioner's] application for Accidental Disability retirement benefits [(ADRB)]." The ALJ determined that petitioner failed to diligently pursue his application and submit in a timely manner the required medical information in proper form.
Petitioner contends the Board's decision to adopt the ALJ's findings was "unreasonable and unjustified under the unique facts of this case." In addition, he argues that the Board improperly deprived him of an "adverse inference" arising from the agency's failure to call a witness with whom petitioner spoke in his effort to obtain an extension of time for submitting his application for the benefits to which he claimed he was entitled. The Board disagrees and argues that its decision was "reasonable given the number of times the Division requested the required medical documentation." It also argues petitioner was not entitled to any adverse inference in the Board's determination.
We have considered the parties' arguments in light of our review of the record and applicable principles of law. We affirm.
The following facts are taken from the ALJ's findings, which were adopted by the Board, and the hearing before the ALJ. They are essentially undisputed.
Petitioner, who had been a firefighter with the Paterson Fire Department since 1977, applied to the State Division of Pension and Benefits (Division) for special retirement in October 2009. The Board approved his application that December, effective February 1, 2010, and petitioner has received his retirement benefits without interruption since that date.
Eligibility for special retirement is based on twenty-five years of service, rather than age. N.J.A.C. 17:4-6.11(b).
In November 2009, while his application for special retirement was pending, petitioner sustained injuries to his neck and arms while performing his duties as a firefighter, and eventually underwent three surgeries to address his injuries.
As a result of his injuries, on January 15, 2010, petitioner applied to change his type of retirement and receive ADRB. In May, the Board acknowledged its receipt of petitioner's application and informed him that he was required to submit an employer certification, medical records, including the Division's medical forms completed by petitioner's physician, and an authorization for the release of health information from the hospital. The Board advised petitioner that his "physician must complete the form in its entirety; otherwise, we cannot continue the processing of your" application for ADRB, and that, if he was "not able to obtain the [required] documentation," he was to advise the Division "as to the reason in writing." Petitioner immediately responded to the Board's request by submitting his employer's certification. He did not submit any medical documentation with his response, and did not do so until almost two years later, in April 2012, after the Division closed his application for failure to submit the required medical information.
Petitioner did, however, speak with a Division representative in June 2010, telling her that his physician could not complete the medical information until he underwent an anticipated procedure, after which his doctor could determine whether he would need additional treatment. The Division responded in writing on June 10, 2010, again requesting the required medical information. Petitioner responded on July 14, referring to his earlier conversation with the Division representative and again stating he could not supply the information until after he had his surgery.
After his July 2010 letter, petitioner did not submit any medical information to the Division. As a result, the Division sent petitioner a "final notice" on December 28, 2011, advising him that it "assumed [he was] no longer interested in pursuing [his] claim for [ADRB]," and that if it did "not receive this information within 15 days, [it would] close out [petitioner's] file." Petitioner called the Division and told the representative he had spoken to previously that his attorney would be supplying the required medical records. After that conversation, the Division sent petitioner another "final notice" requiring the medical information be supplied within fifteen days or the file would be closed. Petitioner quickly responded with a letter enclosing what he described as "all documentation to this date from all examining physicians, [s]urgeons and all treating doctors as requested." In the letter, he also advised the Division that it should not close his file because he was "still seeking medical attention[, and t]his may be a long process as [he was] dealing with an agency providing workers compensation for the City of Paterson."
Copies of these materials are not contained in the record.
After receiving petitioner's submission, another Division representative, Douglas Dinkler, wrote to petitioner on February 8, 2012, supplying him with the specific state regulation that required applications for ADRB "be supported by at least two medical reports, one by the member's personal or attending physician and the other in the form of either hospital records or a report from a second physician." The cited regulation, N.J.A.C. 17:4-6.1, requires the reports to be submitted within six months of the application and provides that if they are "not received the retirement will be cancelled, and the member must complete a new disability application for a future retirement date." Dinkler's letter enclosed the required "Personal Physician's report" form to be completed by petitioner's physician, and stated the form had to be submitted within thirty days or his application for ADRB would be cancelled. On March 2, petitioner and Dinkler spoke on the telephone, and petitioner requested a sixty-day extension for his doctor to complete the form. Dinkler did not indicate whether the request was granted but, according to petitioner, stated he would get back to petitioner.
The request was made in accordance with N.J.A.C. 17:4-6.1, which states in pertinent part:
(a) Applications for retirement must be made on forms required by the System. Such forms must be completed in all respects and filed with the Division before the requested date of retirement. . . .
. . . .
(d) As to an application for disability retirement, the following shall apply:
1. An application for a physical disability retirement must be supported by at least two medical reports, one by the member's personal or attending physician and the other in the form of either hospital records supporting the disability or a report from a second physician. The required documentation must be received within six months of the date of filing the disability retirement application. If it is not received, the retirement will be cancelled and the member must complete a new disability application for a future retirement date . . . .
[N. J.A.C. 17:4-6.1 (emphasis added).]
By March 13, 2012, petitioner had not submitted the required physician's report. As a result, the Division canceled petitioner's application and sent him written confirmation. Upon his receipt of the letter, petitioner wrote to Dinkler, reminding him of their earlier conversation and asking for more time to make the necessary submission. The Division received the letter on March 23, 2012.
The letter was dated March 3, 2012, but referred to petitioner's receipt of the Division's March 13 letter and stated petitioner received it on March 16, 2012.
Before the Division responded, petitioner sent Dinkler additional information, which included the Division's medical examination form, completed by petitioner's physician on April 3, 2012, the same date the doctor indicated he began treating petitioner. The Division received the material on April 11, 2012, and, on the same date, denied petitioner's request for an extension and advised him that he could not reapply for ADRB because he was already collecting special retirement benefits.
Petitioner appealed the Division's decision to the Board, requesting his application be reopened. The Board considered the request at a meeting on June 18, 2012, and denied it, relying upon the six-month requirement for the submission of the medical information under N.J.A.C. 17:4-6.1(d)(1), and the Division's numerous requests for that information before closing petitioner's application.
Petitioner appealed the Board's determination. In his appeal, petitioner contended that Dinkler granted him an extension and requested a hearing at which Dinkler could testify. The Board granted the request for a hearing and the case was set down before the ALJ as a contested matter. Petitioner was the only witness to testify at the hearing.
Petitioner argued to the ALJ that he "demonstrated good cause and exercised reasonable diligence" under the circumstances because the submission of the medical reports was held in abeyance while he awaited the outcome of an appointment with his treating physician. Citing the Supreme Court's opinion in Steinmann v. Department of the Treasury, Division of Pensions, Teachers' Pension & Annuity Fund, 116 N.J. 564 (1989), petitioner contended he was unable to make an "informed choice about his retirement" until he met with his treating physician. The Board argued that petitioner had failed to submit the required information for "nearly two-and-a-half years" without any good cause.
In a comprehensive fifteen-page written decision, the ALJ explained his reasons for denying petitioner's appeal. He began by distinguishing the issue in Steinmann from those presented in petitioner's case, pointing out that the issue addressed by the Court in Steinmann was whether the petitioner could make an informed decision about her retirement without obtaining "information about the effect of [her pending] workers' compensation award on her retirement options." He then noted the difference between the two cases, stating:
This case, however, is not Steinmann. In Steinmann, [the petitioner] could not make an informed decision between retirement options because she did not have sufficient information. In this case, [petitioner] simply failed to submit the requisite medical documentation within the requisite time period. Indeed, [petitioner] had already made his choice between retirement options and does not argue that his decision was uninformed.
The ALJ reviewed the requirement that medical reports be submitted within six months of application, and noted it "took nearly two-and-a-half years [for petitioner] to do so," though acknowledged that the Division waited until February 2012 to notify petitioner that he had thirty days to submit the necessary information. He found from petitioner's testimony that Dinkler never indicated that the time period for submission would be extended, and that petitioner failed to demonstrate reasonable diligence in complying with the time requirements.
The ALJ turned to petitioner's contention that "the Board did not deal fairly with him," and petitioner's reliance on our opinion in Fiola v. Department of the Treasury, Division of Pensions, Police and Firemen's Retirement System, 193 N.J. Super. 340 (App. Div. 1984). He reviewed the issue addressed in that case, which did not involve a member's compliance with statutory or regulatory requirement for submission of information within a specific time period, and our holding, in which we noted that "where the Legislature has intended to place a time limitation on an application for statutory pension benefits, it has done so clearly and unequivocally." Id. at 350. The ALJ observed our finding in Fiola that, where no time period was specified, any attempt to enforce compliance with a specific period constituted "unfair dealing" by the Board. After analyzing the court's opinion in Fiola, the ALJ concluded that "the system has not been antagonistic toward [petitioner]. In fact, the Board granted [petitioner] extension after extension to submit the requisite medical documentation — extensions totaling nearly two-and-a-half years." Accordingly, he found petitioner failed to "demonstrate good cause; that he has not exercised reasonable diligence; and that his case should not be reopened as a result."
In reaching his conclusion, the ALJ also relied upon the Legislature's use of time limits for submission of medical information within six months in various public employee retirement systems. Relying upon the applicable regulation's legislative history, he noted that the six-month time period selected for ADRB was determined to be a reasonable requirement in light of the nature of the claim.
Applications for other types of retirement benefits are treated differently. Specifically, N.J.A.C. 17:4-6.1 provides:
(b) Except for a disability retirement application, in the event a member files an incomplete application, all deficiencies, except the employer certification, shall be brought to the member's attention and the member shall be required to provide the additional information within 90 days to enable processing. If there is no response within the 90-day time frame, the application will expire and the member will be required to refile. This section shall not apply to information provided by the employer.--------
[N. J.A.C. 17:4-6.1(b) (emphasis added).]
After the ALJ issued his decision, petitioner's counsel filed exceptions with the Division. Petitioner primarily challenged the ALJ's finding that petitioner's belief that Dinkler granted an extension was "unwarranted," relying upon the fact that Dinkler never responded to petitioner's request. Citing our opinion in State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007), he asserted that, because the Board did not call Dinkler as a witness to refute petitioner's "inference" that an extension had been granted, petitioner was entitled to an adverse inference that "Dinkler's testimony would have been favorable to him." Relying on Fiola, petitioner's counsel also argued that the Board's rejection of the medical information petitioner eventually supplied during the sixty-day period he inferred Dinkler granted him was "a clear expression of antagonism against him."
After considering the ALJ's recommendation, the exhibits adduced at the hearing, and petitioner's exceptions, the Board adopted the ALJ's recommendation that petitioner's application for ADRB should not be reopened. This appeal followed.
The scope of our review of an administrative agency's final determination is limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). "An appellate court affords a strong presumption of reasonableness to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (citation omitted). 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). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).
We conclude from our review of the record that the Board correctly applied the applicable law, and that its decision "is supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). We find no merit to petitioner's contention that he was entitled to an adverse inference as to the Division's failure to produce Dinkler as a witness, as petitioner admitted that Dinkler never explicitly granted his request for extension and, if petitioner thought Dinkler's testimony was needed, he could have compelled his appearance at the hearing. Consequently, we find no basis to intervene.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION