Opinion
DOCKET NO. A-4527-12T2
07-17-2014
ROBERT WUNDER, Petitioner-Appellant, v. TEACHERS' PENSION AND ANNUITY FUND, Respondent-Respondent.
Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, LLC, attorneys; Louis W. Boltik, on the brief). Diane J. Weeden, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Weeden, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, TPAF #404774.
Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, LLC, attorneys; Louis W. Boltik, on the brief).
Diane J. Weeden, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Weeden, on the brief). PER CURIAM
Petitioner Robert Wunder appeals from the June 7, 2013 final administrative decision of the Board of Trustees, Teachers' Pension and Annuity Fund (the Board), denying his application for ordinary disability retirement benefits pursuant to N.J.S.A. 18A:66-39. The Board determined Wunder did not establish he was permanently and totally disabled from performing his regular duties as a teacher. For the reasons that follow, we affirm.
I.
Wunder is a fifty-four year old former employee of the Cape May County Schools for Special Services (the School) where he worked as a health and physical education teacher from 1986 until the end of 2008. The School specializes in providing education to students who are severely and profoundly physically handicapped or who are normal physically, but are mentally handicapped. Wunder began working as a teacher's aide before his promotion to a health and physical education teacher for middle school students. In 2004, he was transferred to the high school and maintained his position as a health and physical education teacher.
As a health and physical education teacher, the School made Wunder "[r]esponsible for a full range of health/physical education/recreational activities designed especially for [the] district's handicapped students." He further had to "have knowledge of the various handicapping conditions and be able to develop programs suitable for students severely impaired." Wunder performed these duties and helped handicapped students, including those in wheel chairs, engage in sports such as floor hockey, volleyball, and swimming; he further physically assisted students getting in and out of their wheelchairs. Wunder's responsibilities also included administrative work and lunch duty, which entailed monitoring student behavior, making sure the students cleaned up and settling arguments.
In 2004, Wunder was diagnosed with an enlarged aorta and high blood pressure. He had a heart catheterization, was prescribed medication and returned to work about one week later. In the summer of 2006, Wunder's then seventeen-year-old son suffered a spinal cord injury in a swimming pool accident and was rendered an incomplete quadriplegic. While his son was in the hospital, Wunder visited his son every evening at the intensive care unit of the Jefferson University Hospital in Philadelphia after a full day of work. Beginning in December 2006, Wunder took family leave to care for his son, returning to work in the summer of 2007.
In November 2007, Wunder, in consultation with his wife, decided to leave his job. In explaining why he left work, Wunder testified, "we couldn't afford a full time caretaker because [his son] needs a full time caretaker. Our insurance company said he wasn't disabled enough for a full time caretaker[.]" If his son had not been injured, Wunder believed he would have been able to continue work.
In December 2007, after Wunder had left work, he was placed on temporary disability by his cardiologist. He also saw his family doctor who prescribed Lexapro because he was depressed; his family doctor further suggested he seek professional help. Wunder then saw Dr. John McInerney, a psychologist, in February 2008. Dr. McInerney's report noted that when he first saw Wunder, "he met criteria for major depression as a clear and persistent complication to his cardiac condition." Consequently, Dr. McInerney concluded, using the DSM-IV, Wunder was experiencing a major depressive episode. Wunder continued to see Dr. McInerney until May 23, 2008; he discontinued seeing Dr. McInerney because he started feeling better after he stopped working.
See American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (4th ed. Text Revision 2000).
Dr. McInerney next saw Wunder on November 14, 2008, and completed the requisite medical examination for Wunder's application for ordinary disability retirement benefits. Dr. McInerney then indicated Wunder's disability was stable and later testified he did not expect Wunder's depression "to get either better or worse." On November 28, 2008, Wunder applied for ordinary disability.
In connection with his application for ordinary disability, Wunder was examined on April 13, 2009, by the Board's independent medical examiner, Regis Acosta, M.D. a psychiatrist. Dr. Acosta diagnosed Wunder as having a single episode of major depressive disorder, which was in remission. He found Wunder was "not displaying any signs of anxiety and/or depression."
The Board initially denied Wunder's application on October 29, 2009, concluding he does not suffer from a permanent mental disability under N.J.S.A. 18A:66-39. Wunder filed an administrative appeal of the Board's denial and the dispute was referred to the Office of Administrative Law (OAL). An Administrative Law Judge (ALJ) held hearings on three non-consecutive days from March 2011 through January 2012 and heard testimony from Wunder and Drs. McInerney and Acosta as expert witnesses.
Dr. McInerney testified that he reevaluated Wunder on May 17 and June 2, 2010, and administered standardized psychological testing. According to these tests, Wunder suffered from severe and recurrent depression, depressive thinking, mild but persistent anxiety, and a loss of optimism. Therefore, Dr. McInerney opined Wunder was "experiencing a major depressive illness that is severe and persistent." He further believed Wunder was "likely to be unable to perform his duties" as a physical education teacher at the school due to depression and was "functionally disabled on a permanent basis." Dr. McInerney did note Wunder was in partial remission and continued treatment would help his depression. However, Dr. McInerney predicted if Wunder returned to work, the stress of working with "severely psychiatrically disturbed young adults would probably worsen his condition." He further initially stated he was unsure if Wunder could work as a physical education and health teacher in a regular public school but upon further reflection, he opined Wunder could not perform the duties of a regular education teacher.
Dr. Acosta disagreed, finding Wunder does not suffer from a major depressive disorder but rather suffered from a single depressive episode; he concluded medications and appropriate treatment would allow Wunder to continue his employment. Dr. Acosta further testified that Wunder's ability to get out of bed, take care of his own activities of daily living, in addition to caring for his son, "indicates that there was not a presence of a depression." Dr. Acosta additionally administered standardized tests which evidenced Wunder was within the normal range for depression and anxiety. Dr. Acosta also performed a mental status exam which consisted of observations and an assessment of cognitive function; he did not find "any relevant or any positive symptoms of severe mental illness or depression" and concluded there was "no finding of illness in the mental status exam." Dr. Acosta concluded Wunder was not permanently disabled and opined, "in reviewing the specifications of his job description, . . . [Wunder] has no deficit and/or inability to perform these activities."
Wunder also testified, stating he had difficulty dealing with students who had behavior problems when he returned to work after his son's accident. He found that working with these students wore him out and made him sad, depressed and overwhelmed. He believed he was not "stable enough to work with these kids anymore" and that "he might lose it if [a] kid challenged [him] now." Wunder did say he was depressed because of his son and felt like he "was in a hole and . . . couldn't get out of it." Wunder noted that after he left work he felt relieved because he believed he "couldn't handle the stress and . . . would've had a real problem if [he] went back to work and had to deal with the kids."
The ALJ issued his initial decision on December 17, 2012, concluding Wunder suffers from a mental disability and accordingly, should be granted ordinary disability retirement benefits. The ALJ found both doctors' testimony credible, although more weight was given to Dr. McInerney's testimony. Recognizing "[t]he outcome of this case turns on the credibility of the medical experts," the ALJ found that Dr. McInerney "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 his job."
Following this decision, the case returned to the Board, which did not adopt the ALJ's conclusion but rather issued a final decision on June 7, 2012, denying Wunder's application for ordinary disability. In a thorough written decision, the Board explained why it disagreed with the ALJ's recommendation and further explained why it substantially relied on Dr. Acosta's opinion rather than Dr. McInerney's opinion. Specifically, the Board found:
(1) The medical testimony did not establish that Wunder is totally and permanently disabled from the performance of his particular job at the Cape May County School for Special Services, or from the general area of his employment as a physical education teacher; and (2) the record indicates that Wunder left employment not due to a disability, but as a consequence of his personal choice to devote time to the care of his disabled son.
Further, the Board found the ALJ only used Dr. McInerney's "status as petitioner's treating doctor" as the explanation for accepting Dr. McInerney's results and testing conclusions over Dr. Acosta's conclusions; however, when Dr. McInerney performed the testing he had not treated Wunder for two years. Further, the Board carefully reviewed the testimony regarding the markedly different test results of the two experts. The Board analyzed step-by-step the differences in the testing and diagnostic tools between the experts, specifically noting Dr. Acosta expressed and subsequently explained his concern about Dr. McInerney's testing. As such, the Board concluded Dr. Acosta's reports and testimony were more objective and credible than Dr. McInerney's.
The Board noted an applicant for ordinary disability must establish not only that he is unable to perform his specific job but he is also unable to "perform duties in the general area of his employment." In concluding Wunder "left his position to attend to a pressing family need, not due to disability[,]" the Board determined Wunder failed to satisfy his "burden of proving that he is not able to return to work as a health or physical education teacher."
This appeal followed. Wunder requests this court reverse the decision of the Board denying his application for ordinary disability retirement benefits.
II.
We begin with a review of the well-established legal principles that guide our analysis. Under the Teachers' Pension and Annuity Fund Law (TPAF), N.J.S.A. 18A:66-1 to -93, an education professional upon becoming permanently incapacitated can receive retirement benefits of either ordinary disability or accidental disability. Kasper v. Bd. of Trs. of Teachers' Pension & Annuity Fund, 164 N.J. 564, 573 (2000) (citing N.J.S.A. 18A:66-39(b), (c)). A teacher who is a member of the retirement system may receive ordinary disability when he or she "is 'physically or mentally incapacitated for the performance of duty and should be retired.'" Ibid. (quoting N.J.S.A. 18A:66-39(b)). "The applicant for ordinary disability retirement benefits has the burden to prove that he or she has a disabling condition and must produce expert evidence to sustain this burden." Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super. 119, 126 (App. Div. 2008), certif. denied, 199 N.J. 540 (2009).
Our review of an agency's decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011); Messick v. Bd. of Review, 420 N.J. Super. 321, 324 (App. Div. 2011). Agency decisions are given a strong presumption of reasonableness, and we will generally not reverse such a decision unless it was arbitrary, capricious, or unreasonable, or not supported by evidence in the record. Thurber v. City of Burlington, 387 N.J. Super. 279, 301-02 (App. Div. 2006), aff'd, 191 N.J. 487 (2007).
We also review factual findings made by an administrative agency deferentially. On appeal, "the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)) (internal quotation marks omitted). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). Nevertheless, if our review of the record shows that the agency's finding is clearly mistaken, the decision is not entitled to judicial deference. See H.K. v. Dep't of Human Servs., 184 N.J. 367, 386 (2005); L.M. v. State, Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995).
Indeed, the Board has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ[,]" N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils. & Hackensack Water Co., 189 N.J. Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)); however, the Board must still "state clearly the reasons for doing so." N.J.S.A. 52:14B-10(c). Because an administrative board has the authority "to adopt, reject or modify the recommended report and decision of the ALJ, and an appellate court is only entitled to review those findings and recommendations in its overview of the record for the purpose of determining whether or not the Board's findings are supported by substantial credible evidence." N.J. Bd. of Pub. Utils. & Hackensack Water Co., supra, 189 N.J. Super. at 507 (internal citation omitted) (citing In re Suspension or Revocation of License of Silberman, 169 N.J. Super. 243, 255-56 (App. Div. 1979), aff'd, 84 N.J. 303 (1980)). In other words, an administrative board may reject an ALJ's findings on an expert's methodology and its credibility determinations of an expert witness, provided it articulates with particularity its reasons for doing so. ZRB, LLC v. N.J. Dep't of Envtl. Prot., Land Use Regulation, 403 N.J. Super. 531, 561-62 (App. Div. 2008) Id. at 561-62; see N.J.S.A. 1:1-18.6(b). The burden of proof in this regard rests upon the party challenging the agency's determination. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).
N.J.A.C. 1:1-18.6(b):
The agency head may reject or modify conclusions of law, interpretations of agency policy, or findings of fact not relating to issues of credibility of lay witness testimony, but shall clearly state the reasons for so doing. The order or final decision rejecting or modifying the initial decision shall state in clear and sufficient detail the nature of the rejection or modification, the reasons for it, the specific evidence at hearing and interpretation of law upon which it is based and precise changes in result or disposition caused by the rejection or modification.
III.
Applying our highly deferential standard of review, we conclude that there is substantial credible evidence in the record to support the Board's findings that Wunder failed to show entitlement to ordinary disability benefits. Although the ALJ considered the credibility of both experts and found Dr. McInerney's opinions more persuasive the Board rejected these conclusions and the weight afforded to Dr. McInerney's testimony. The Board was well within its discretion to do so and drew a reasonable inference, based upon testimony of Dr. Acosta that Wunder does not suffer from a major depressive disorder but rather suffered from a singular major depressive event. Specifically, the Board noted it found Wunder did not suffer from a permanent depressive disorder because he could, through the use of medication which he had not been using, get better. See Cavalieri v. Bd. of Tr. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 537 (App. Div. 2004) (holding that for an agency to reverse the ALJ's factual findings of lay witnesses, it must "explain why the ALJ's findings are unsupportable by the record, not simply that [it] disagree[s] with the judge or would have decided differently from the evidence that was presented").
In crediting Dr. Acosta's opinion, the Board analyzed his testimony and the support for his opinions in the record; the Board also gave specific and coherent reasons for rejecting Dr. McInerney's opinions. Importantly, the Board noted Dr. McInerney was unable to speak to whether medication would help Wunder's depression. After examining the evidence and testimony, the Board thoroughly explained its decision, concluding
it was not a disability from either his specific job duties or the more general duties of his employment that caused Mr. Wunder to leave his employment, but his choice to devote his time to the care of his son. This is an understandable and admirable choice, and undoubtedly created stress that affected Mr. Wunder, but it did not disable him from the duties of his employment.
In challenging the Board's decision, Wunder cites to his own testimony that he started feeling better and felt relieved once he left work; he further testified he could not return to work at the School because he did not know if he could handle working with the children. Wunder further argues Dr. McInerney found him incapable of performing his job based upon the job description for a health and physical education teacher. Finally, Wunder emphasizes that even though his depression had improved by November 2008, Dr. McInerney's testified he remained depressed in March 2011 and could not return to work.
In addressing the opposing opinion of Dr. Acosta, Wunder argues the opinion of a treating doctor is entitled to more weight than that of a doctor who conducts a single examination in order to serve as an expert medical witness. See Bober v. Independent Planting Corp., 28 N.J. 160, 167 (1958). However, while New Jersey courts normally accord the testimony of a treating physician greater weight over that of a doctor who simply evaluates a condition based upon reports or an examination, see Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171-72 (App. Div. 1955), certif. denied, 20 N.J. 535 (1956), this guidepost is not absolute. Rather, "the weight to which an expert opinion is entitled can rise no higher than the facts upon which the opinion is predicated." Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (internal citations omitted).
The Board acknowledged the usual degree of deference accorded to the opinion of a treating physician, but concluded the deference given to Dr. McInerney by the ALJ
is overcome by the brief and limited nature of [Dr. McInerney's] treatment of Mr. Wunder, and the more persuasive evidence put forth by Dr. Acosta as to the psychological testing each practitioner employed, the non-progressive nature of a major depressive disorder as described in the DSM-IV, the likelihood that medication might have alleviated Mr. Wunder's symptoms, and the contradiction between a finding of disability and his clear ability to manage the demanding care of his son.
Indeed, Drs. McInerney and Acosta found very different results from their standardized tests. The Board found the report and testimony of Dr. Acosta more objective and more credible for multiple reasons. Notably, the standardized testing performed by Dr. McInerney included several self-reporting and subjective inventories and thus, relied upon Wunder's subjective input. Additionally, Dr. Acosta was able to explain his concerns with Dr. McInerney's testing, whereas Dr. McInerney did not provide any explanation for the conflicting results and expressed no concern regarding the actual tests or methodology of Dr. Acosta's testing. Further, the Board noted the ALJ provided no basis for accepting Dr. McInerney's testing, other than affording him presumed, additional credibility due to his status as a treating physician. Finally, Wunder failed to explain why the Board's analysis of Dr. McInerney's opinions was flawed.
The final consideration for an award of ordinary disability retirement benefits is whether the applicant has established "incapacity to perform duties in the general area of his ordinary employment rather than merely showing inability to perform the specific job for which he was hired." Skulski v. Nolan, 68 N.J. 179, 205-06 (1975); see Getty v. Prison Officers' Pension Fund, 85 N.J. Super. 383, 390 (App. Div. 1964). The Board noted the ALJ articulated this standard but did not address whether Wunder "would be able to return to work as a physical education teacher for younger handicapped children or as a physical education teacher in a school setting that did not focus on handicapped children."
The issue before the Board was whether Wunder is incapacitated from performing "duties in the general area of his ordinary employment." Bueno, supra, 404 N.J. Super. at 131. Wunder has failed to show that he would be unable to return to work as a physical education teacher. He cites to his own testimony that he could not teach in another school as the kids have become defiant and he did not believe he would be able to handle the stress. He also cites to Dr. McInerney's testimony, who admitted he did not consider whether he could work elsewhere in his report. Nevertheless, Dr. McInerney later testified he did not "believe [Wunder] could perform the duties of a teacher in Special Education or even as a Regular Physical Education Teacher based on my assessment. . . ." Conversely, Dr. Acosta testified Wunder is not totally and permanently disabled and could return to work as a physical education teacher at the School. Dr. Acosta also opined that, with proper medication, Wunder could return to working with children who have oppositional defiant disorders. The record therefore contains credible evidence supporting the Board's conclusion Wunder did not establish by a preponderance of the evidence that he is unable to return to work as a physical education teacher.
We find the Board's decision carefully analyzed the record and provides a reasonable explanation for rejecting Dr. McInerney's opinions while crediting Dr. Acosta's opinions. We function under a very limited standard of review and we must give appropriate deference to the Board's findings where, as here, those findings are based on sufficient credible evidence in the record. See Thurber, supra, 387 N.J. Super. at 301-02.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION