Opinion
DOCKET NO. A-0034-13T2
04-29-2015
MARVA GORDON, Petitioner-Appellant, v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
Alan Rosenberg argued the cause for appellant. Jane G. Lafferty, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lafferty, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from the Board of Trustees, Public Employees' Retirement System, Department of Treasury, Docket No. 998111. Alan Rosenberg argued the cause for appellant. Jane G. Lafferty, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lafferty, on the brief). PER CURIAM
Petitioner Marva Gordon appeals from the Public Employees' Retirement System (PERS) Board of Trustees' final administrative determination that she is not entitled to receive ordinary disability retirement benefits. We affirm.
In October 2010, at age sixty-three, after working for nearly twenty years with the New Jersey Department of Labor, Job Service, petitioner applied for ordinary disability retirement under N.J.S.A. 43:15A-42, which provides in pertinent part:
A member, under [sixty] years of age, who has [ten] or more years of credit for New Jersey service, shall, upon the application of the head of the department in which he shall have been employed or upon his own application or the application of one acting in his behalf, be retired for ordinary disability by the board of trustees. The physician or physicians designated by the board shall have first made a medical examination of him at his residence or at any other place mutually agreed upon and shall have certified to the board that the member is physically or mentally incapacitated for the performance of duty and should be retired.
The statute was amended, effective May 21, 2010. The amendment neither applies to nor affects petitioner's application for ordinary disability retirement.
Following the PERS Board's denial of her application, petitioner accepted a service retirement for which she qualified but also filed an administrative appeal from the PERS Board's denial of ordinary disability benefits. Her appeal was transmitted to the Office of Administrative Law where an Administrative Law Judge (ALJ) tried the matter over two days. During the trial, petitioner testified about the disabling nature of her medical conditions and presented the testimony of two lay witnesses and a doctor to corroborate her testimony and establish her entitlement to ordinary disability benefits. The attorney for PERS presented the testimony of a medical expert who opined that petitioner was not totally and permanently disabled for her duties as an employment counselor.
Based on his review of the totality of the evidence, "and having had the opportunity to assess the demeanor and credibility of the witnesses who testified," the ALJ found that petitioner was not permanently and totally disabled and unable to perform the duties and functions of her job. Noting that the outcome of her case turned on the credibility of the medical experts, the ALJ found that the medical expert who testified on behalf of PERS "presented a more persuasive opinion as to the issue of permanent and total disability and as to the petitioner's ability to perform the functions and duties of her job."
Petitioner filed exceptions to the ALJ's decision. PERS adopted the ALJ's recommendation and reaffirmed the PERS Board's determination that petitioner was not entitled to receive ordinary disability retirement benefits. Petitioner appealed.
Because it is important that the parties understand our role in reviewing the PERS Board's determinations, we begin with the standards that guide our decision. Our review of agency determinations is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We generally "defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Virtua-W. Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). For that reason, we ordinarily 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." Ibid. "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Having considered petitioner's arguments in light of the record and our standard of review, we conclude the Board's decision is supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). Petitioner's arguments are without sufficient merit to warrant further discussion in a written opinion. 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.
CLERK OF THE APPELLATE DIVISION