CYNTHIA HAVILAND VS. BOARD OF TRUSTEE (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

C
                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0944-19

CYNTHIA HAVILAND,

       Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
__________________________

                Submitted February 24, 2021 – Decided March 23, 2021

                Before Judges Alvarez and Mitterhoff.

                On appeal from the Board of Trustees of the Public
                Employees' Retirement System, Department of the
                Treasury, PERS No. 2-1168071.

                Louis W. Boltik, attorney for appellant.

                Gurbir S. Grewal, Attorney General, attorney for
                respondent (Melissa H. Raksa, Assistant Attorney
                General, of counsel; Connor V. Martin, Deputy
                Attorney General, on the brief).

PER CURIAM
      Cynthia Haviland appeals from a September 20, 2019 final decision of the

Board of Trustees (Board) of the Public Employees' Retirement System denying

her application for ordinary disability retirement benefits, N.J.S.A. 43:15 A-42.

We affirm.

      We discern the following facts from the record. Haviland is a fifty-five-

year-old woman who was employed as a confidential secretary to the

superintendent of Rancocas Valley Regional High School beginning in 2002.

Her duties included:       managing appointments for the superintendent;

maintaining information such as report cards, fall surveys, and NJSMART

reports; preparing spreadsheets; and performing any other necessary clerical

work to support supervisors. These tasks required Haviland to spend most of

the day sitting behind a computer.

      In 2012, Haviland began to exhibit various symptomology which included

numbness in her leg, back pain, and neck pain that radiated down to her arm.

She described her neck and back pain as a "constant throbbing," almost "like

knives [are] stabbing you . . . ." After unsuccessful attempts to allay this

symptomology,1 her family physician ordered an MRI and subsequently referred


1
  Haviland was prescribed pain pills and received epidural shots in both her
back and neck.
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                                       2
her to a neurosurgeon, Dr. Francis Pizzi.        The MRI revealed multi-level

degenerative changes, a bulging disc, and foraminal stenosis in her lower lumbar

spine.

         In November 2012, Haviland underwent an L5-S1 microdiscectomy.

Almost a year later, she underwent C5-6/C6-7 anterior cervical discectomy and

fusion. In 2015, Haviland decided to stop working because, notwithstanding the

surgeries, she was still in pain.

         Thereafter, Haviland applied for ordinary disability retirement benefits

effective February 1, 2015. On August 19, 2015, the Board denied Haviland's

application on the grounds that she was not totally and permanently disabled

from the performance of her regular and assigned duties. Following the denial

of her application, Haviland appealed the Board's decision and the matter was

transferred to the Office of Administrative Law as a contested case.          See

N.J.S.A. 52:14B-9, -10.

         A two-day plenary hearing was conducted before an Administrative Law

Judge (ALJ). Haviland testified on her own behalf. Two expert witnesses also

testified.2 Dr. Andrew J. Collier, Jr. testified for Haviland. Dr. Arnold T.

Berman testified on behalf of the Board.


2
    The parties agreed that both were qualified as experts in orthopedic surgery.
                                                                            A-0944-19
                                         3
      Dr. Collier opined that, based on Haviland's complaints, she was still

symptomatic and had difficulty with certain tasks including computer work. Dr.

Collier's January 3, 2018 examination, which included both a Spurling

compression test and straight leg raise test, triggered pain in Haviland's neck

and back but no radicular symptoms. Dr. Collier concluded that, within a

reasonable degree of medical certainty, Haviland could not perform her job

because it required too much sitting.       On cross-examination, Dr. Collier

acknowledged that the range of motion tests used during his evaluation had

subjective components.     Dr. Collier also conceded that Haviland's surgical

procedures were "successful" and mitigated "most" of her radicular complaints.

      Dr. Berman, on the other hand, concluded that Haviland was able to

perform her duties as secretary because she had excellent surgical results in both

her lumbar and cervical spine and therefore had no loss of function. Dr. Berman

testified that his June 5, 2015 independent medical examination, which also

included Spurling and straight leg raise tests, revealed no radiculopathy. The

results from the Jamar strength testing device were normal. Dr. Berman testified

that, after reviewing Haviland's medical records, there was "no evidence of

radiculopathy radiologically."




                                                                            A-0944-19
                                        4
      On August 2, 2019, the ALJ issued a written decision affirming the

Board's denial of Haviland's application for ordinary disability retirement

benefits. Although the ALJ found both Dr. Collier and Dr. Berman to be

credible, he gave greater weight to Dr. Berman's testimony because Dr. Collier's

examination occurred three years after Haviland filed for disability and Dr.

Collier's conclusions were "more rooted in his observation." On September 20,

2019, the Board adopted the ALJ's decision. This appeal ensued.

      Our review of an administrative agency's decision is limited.       In re

Stallworth, 

208 N.J. 182

, 194 (2011); Messick v. Bd. of Rev., 

420 N.J. Super.

321

, 324 (App. Div. 2011). An agency determination should not be reversed

"unless it is arbitrary, capricious or unreasonable or it is not supported by

substantial credible evidence in the record as a whole." Lavezzi v. State, 

219

N.J. 163

, 171 (2014) (quoting Prado v. State, 

186 N.J. 413

, 427 (2006)).

However, we review an agency's legal interpretations de novo.

Id. at 172.

The

party challenging the administrative determination bears the burden of proof.

Boyle v. Riti, 

175 N.J. Super. 158

, 166 (App. Div. 1980) (citations omitted).

      The statute governing ordinary disability retirement, N.J.S.A. 43:15A-42,

reads, in part, that:

             A member, under [sixty] years of age, who has [ten] or
             more years of credit for New Jersey service, shall, upon

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                                        5
            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 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., Tchrs.' Pension & Annuity Fund, 

404

N.J. Super. 119

, 126 (App. Div. 2008) (citing Patterson v. Bd. of Trs., State

Police Ret. Sys., 

194 N.J. 29

, 50-51 (2008)).

      On appeal, Haviland argues that her medical records and the certification

of Dr. Pizzi, coupled with Dr. Collier's testimony, satisfied the burden of proof

to establish she was totally and permanently disabled. Applying our deferential

standard of review, we are constrained to disagree.

      "[T]he weight to be given to the evidence of experts is within the

competence of the fact-finder." LaBracio Fam. P'ship v. 1239 Roosevelt Ave.,

Inc., 

340 N.J. Super. 155

, 165 (App. Div. 2001); see also Angel v. Rand Express

Lines, Inc., 

66 N.J. Super. 77

, 85-86 (App. Div. 1961) ("the credibility of the

expert and the weight to be accorded his testimony rests in the domain of the

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                                        6
trier of fact.") (citation omitted). "Indeed, a judge is not obligated to accept an

expert's opinion, even if the expert was 'impressive.'" State v. M.J.K., 369 N.J.

Super. 532, 549 (App. Div. 2004) (quoting State v. Carpenter, 

268 N.J. Super.

378

, 383 (App. Div. 1993)). In that regard, "[t]he factfinder may accept some

of the expert's testimony and reject the rest." Torres v. Schripps, Inc., 342 N.J.

Super. 419, 430 (App. Div. 2001) (citing Todd v. Sheridan, 

268 N.J. Super. 387

,

401 (App. Div. 1993)). "That is, a factfinder is not bound to accept the testimony

of an expert witness, even if it is unrebutted by any other evidence."

Id. at 431

(citing Johnson v. Am. Homestead Mortg. Corp., 

306 N.J. Super. 429

, 438 (App.

Div. 1997)).

      Having reviewed the record, we are satisfied the Board's decision is

supported by sufficient credible evidence, R. 2:11-3(e)(1)(D), and is not

arbitrary, capricious or unreasonable. Faced with competing expert testimony,

the ALJ ultimately found Berman to be more credible. Deference is appropriate

where, as here, the "evidence is largely testimonial and involves questions of

credibility." In re Return of Weapons to J.W.D., 

149 N.J. 108

, 117 (1997)

(citing Bonnco Petrol, Inc. v. Epstein, 

115 N.J. 599

, 607 (1989)). Moreover,

affording "more weight to the opinion of one physician as opposed to the other




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                                        7
provides no reason to reverse [a] judgment." Smith v. John L. Montgomery

Nursing Home, 

327 N.J. Super. 575

, 579 (App. Div. 2000).

     Affirmed.




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