LUISA DINIS FERRER VS. BOARD OF TRUSTEES (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

L
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4118-18T2

LUISA DINIS FERRER,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
__________________________

                   Submitted December 1, 2020 – Decided January 13, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Board of Trustees, Public
                   Employees' Retirement System, PERS No. 2-1302907.

                   Alterman & Associates, LLC, attorneys for appellant
                   (Arthur J. Murray, of counsel and on the brief).

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

PER CURIAM
      Appellant Luisa Dinis Ferrer appeals from the final agency decision of the

Board of Trustees, Public Employees' Retirement System denying her accidental

disability retirement benefits. That pension plan grants accidental disability

retirement benefits if "the member is permanently and totally disabled as a direct

result of a traumatic event occurring during and as a result of the performance

of his [or her] regular or assigned duties." N.J.S.A. 43:16A-7(1). Accordingly,

a claimant seeking accidental disability retirement benefits must prove five

factors:

            1.    that he [or she] is permanently and totally
            disabled;

            2.    as a direct result of a traumatic event that is

                  a.     identifiable as to time and place,
                  b.     undesigned and unexpected, and
                  c.     caused by a circumstance external to the
                         member (not the result of pre-existing
                         disease that is aggravated or accelerated by
                         the work);

            3.     that the traumatic event occurred during and as a
            result of the member's regular or assigned duties;

            4.  that the disability was not the result of the
            member's willful negligence; and

            5.    that the member is mentally or physically
            incapacitated from performing his [or her] usual or any
            other duty.

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                                        2
            [Richardson v. Bd. of Trs., 

192 N.J. 189

, 212-13
            (2007).]

The Board adopted the initial decision of the Administrative Law Judge (ALJ),

concluding Ferrer did not prove "she is totally and permanently disabled and

. . . physically unable to perform the duties of her position as a teacher's aide."

"[C]ognizant that we are reviewing [the Board's] findings and not those of the

[ALJ]," Quigley v. Bd. of Trs. of Pub. Emps.' Ret. Sys., 

231 N.J. Super. 211

,

220 (App. Div. 1989), under our limited review of an administrative agency's

decision, In re Carter, 

191 N.J. 474

, 482 (2007), we affirm.

      We will sustain a board's decision "unless there is a clear showing that it

is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." In re Herrmann, 

192 N.J. 19

, 27-28 (2007); see also Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 

206 N.J. 14

, 27 (2011). Under this standard,

our review is guided by three major inquiries: (1) whether the agency's decision

conforms with relevant law; (2) whether the decision is supported by substantial

credible evidence in the record; and (3) whether in applying the law to the facts,

the administrative "agency clearly erred in reaching" its conclusion. Mazza v.

Bd. of Trs., Police & Firemen's Ret. Sys., 

143 N.J. 22

, 25 (1995); see also In re

Stallworth, 

208 N.J. 182

, 194 (2011).


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                                        3
      We are not "bound by an agency's [statutory] interpretation" or other legal

determinations. Mayflower Sec. Co. v. Bureau of Sec., 

64 N.J. 85

, 93 (1973);

see also 

Russo, 206 N.J. at 27

. Nevertheless, we accord "substantial deference

to the interpretation given" by the agency to the statute it is charged with

enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 

144 N.J. 16

, 31 (1996).

"Such deference has been specifically extended to state agencies that administer

pension statutes[,]" because "'a state agency brings experience and specialized

knowledge to its task of administering and regulating a legislative enactment

within its field of expertise.'" Piatt v. Police & Firemen's Ret. Sys., 443 N.J.

Super. 80, 99 (App. Div. 2015) (quoting In re Election Law Enf't Comm'n

Advisory Op. No. 01-2008, 

201 N.J. 254

, 262 (2010)).

      "[T]he 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 Rev.,

152 N.J. 197

, 210 (1997) (internal quotation marks omitted) (quoting Charatan

v. Bd. of Rev., 

200 N.J. Super. 74

, 79 (App. Div. 1985)). "Where . . . the

determination is founded upon sufficient credible evidence seen from the totality

of the record and on that record findings have been made and conclusions




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                                       4
reached involving agency expertise, the agency decision should be sustained."

Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 

83 N.J. 174

, 189 (1980).

         The ALJ's fact finding was based on the testimony of Ferrer and her

orthopedic expert, David Weiss, D.O., the Board's expert in orthopedic surgery,

Arnold T. Berman, M.D., and the ALJ's review of the plethora of medical

documentation detailing the medical treatment Ferrer underwent following a

back injury she suffered in October 2010, when she—hired as a teacher's aide,

but then serving as a special education teacher's aide—intervened in a physical

altercation between two students during which she was forcefully pulled to the

floor.

         "Ferrer felt something in her back" as she walked one of the students to

the principal's office immediately following the altercation, but later

experienced "right-sided pain and pain shooting down into her buttocks." She

returned to work, but later went from the school nurse's office to her employer's

workers' compensation treatment facility where she was diagnosed with

lumbosacral sprain. She stayed out of work for a week, but returned and

continued working until she filed her application for accidental disability

benefits in May 2015. As the ALJ found, "[d]uring that time, she was out of




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                                         5
work intermittently for her back and was being treated by multiple doctors"; the

ALJ listed seven medical providers.

      Ferrer first claims the Board erred by adopting the ALJ's decision in which

he failed to appreciate that, because of her injuries, she was unable to perform

the job duties of a special education teacher's aide that require more rigorous

physical activity to care for special education students' needs than activities

performed by teacher's aides in general education classrooms. She also argues

the Board erred by adopting the ALJ's decision because he failed to consider or

misinterpreted tangible medical evidence, including notes, reports and

diagnostic studies.

      The record belies those assertions.     The ALJ carefully reviewed the

physical medical evidence—delineated in over seven pages of the ALJ's twenty-

two page written decision. He considered each doctor's opinion regarding the

records and diagnostic studies, including Dr. Weiss's basis for his opinion that

Ferrer was totally and permanently disabled as a teacher's aide because since the

injury suffered in October 2010, she

            has been unable to function as a teacher's aide which
            requires her to be able to assist supervised students
            during emergency drills, assemblies, play periods and
            field trips. She is also required to lift books and
            backpacks, be able to perform one to one instruction,
            be able to perform standing, kneeling and leaning while

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                                       6
            instructing the students, [with] repetitive bending over
            the students.

In her merits brief Ferrer contends those activities were specifically required to

assist special education students, making that job "more 'physically intense'":

"bending, leaning over, [and] stooping." Although the ALJ found "[t]he job

descriptions of the two classifications . . . almost identical," he did recognize

that a special education teacher's aide's "duties were more intense and physical."

      Moreover, an applicant for an accidental disability pension must establish

an inability to perform duties in the general area of the applicant's regular

employment, rather than merely showing an inability to perform a specific job.

Bueno v. Bd. of Trs., Tchrs.' Pension & Annuity Fund, 

404 N.J. Super. 119

, 130-

31 (App. Div. 2008). The ALJ parsed the divergent opinions offered by Dr.

Weiss and Dr. Berman. He found both doctors to be "credible, competent

witnesses," but found Dr. Berman's opinion "that from an orthopedic standpoint,

[Ferrer] did not sustain a permanent injury and had no functional loss and no

permanent disability" as a result of the October 2010 incident, and that she "was

not totally and permanently disabled from the duties of her occupation [as] a

teacher's aide" to be more persuasive and of greater weight than that of Dr.

Weiss.



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                                        7
      Although Ferrer argues the Board erred by adopting the ALJ's decision

because the ALJ "did not consider the full medical record" in determining

"which expert was more persuasive" and failed to appreciate she was

asymptomatic before the October 2010 injury, we reiterate the record clearly

shows that the ALJ carefully perpended all of the medical evidence. The ALJ's

conclusions are supported by the record.

      The ALJ observed "Dr. Berman's physical examination of [Ferrer]

differed from Dr. Weiss's examination in one notable way: [she] did not disclose

to Dr. Berman that she was injured in 2004." Dr. Berman did learn that MRI

studies revealed Ferrer had, as the ALJ found, "a herniated disc in 2004 at [level]

L5-S1 that was causing pressure on the right S1 nerve root." The ALJ assessed

Dr. Berman's conclusion that Ferrer "was not asymptomatic from 2004 to 2010,

in part, because the trauma was a multiple level involvement of at least [three]

levels, with the herniation at L5-S1."

      The ALJ ultimately credited Dr. Berman's rationale for determining Ferrer

was not asymptomatic prior to the 2010 incident:

                  Dr. Berman's conclusion was that [Ferrer] had
            long-standing degenerative disc disease that had
            progressed but was not disabling and that her 2010
            injury involved the musculature because there was no
            evidence of disc injury. She was treated, and the injury


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                                         8
            got better. Her ongoing symptoms were the same
            symptoms that she had prior to the 2010 incident.
                   Dr. Berman opined that there was no medical
            evidence that [Ferrer] sustained a new injury during the
            2010 incident. He based this conclusion on various
            parts of [her] medical history, including the use of
            lumbar epidural steroid injections to find relief because
            the surgery did not work. He also opined that the
            myelogram performed by Dr. Delasotta and the MRIs
            showed multilevel long-standing degenerative disc
            abnormalities that varied [a] little bit but not
            significantly since 2004.
                   Dr. Berman defined degenerative disc disease as
            a reduction of the disc space due to the desiccation,
            which acts as the shock absorber between the discs, and
            opined that a bulge is not due to trauma but due to
            degeneration. The progression of the three-level
            degeneration was accelerated by the petitioner's weight
            which at the time of the IME was 270 pounds on her
            five-foot-six-inch frame.
                   According to Dr. Berman the 2010 MRI showed
            that the disc degeneration became extended from
            [levels] L4[-L]5 and L5[-]S1 to include [level] L3[-L]4.
            The herniation was not described the same as in the
            2004 MRI, but Dr. Berman agreed it was still present.

      The ALJ explained why he found Dr. Weiss's opinion that Ferrer was

totally and permanently disabled was "not supported by a closer analysis of the

documentary evidence" in Ferrer's medical history, including:           a treating

physician's June 2014 report documenting Ferrer's discharge from care,

determining Ferrer "had reached maximum medical improvement" allowing her

"return to work full time and full duty"; an October 2015 report by an advanced


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                                       9
practice nurse authorizing a leave of absence from October 1, 2015 through

January 1, 2016 after Ferrer presented with complaints of depression, headaches

and lack of daily motivation because of health issues, but without mention of

any back pain or radiation therefrom; an October 20, 2015 "Work Note" from a

doctor indicating Ferrer "was able to work full time [without] restrictions"; a

January 2016 discography report that included a comment that the disc

descriptions at levels L2-L3, L3-L4 and L4-L5 were normal; and doctor's notes

from July 2015 indicating Ferrer could return to work without restrictions and

an August 2015 clinical summary from the same doctor indicating she had

"improved considerably and . . . was able to work with restrictions only as to

lifting and stairs."

      The ALJ also highlighted that Dr. Berman reviewed the actual 2004 MRI

films, reviewed "all the medical reports . . . [and] compar[ed] them to one

another," and "performed his own independent examination which was

consistent with the findings of the treating physicians."

      "The applicant for . . . 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."

Id. at 126.

It is not our place to second-guess or

substitute our judgment for that of the Board and, therefore, we do not "engage


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                                       10
in an independent assessment of the evidence as if [we] were the court of first

instance." State v. Locurto, 

157 N.J. 463

, 471 (1999); see also In re Taylor, 

158 N.J. 644

, 656 (1999). With regard to expert witnesses, we rely upon the ALJ's

"acceptance of the credibility of the expert's testimony and the [judge's] fact-

findings based thereon, noting that the [judge] is better positioned to evaluate

the witness'[s] credibility, qualifications, and the weight to be accorded [to his

or] her testimony." In re Guardianship of D.M.H., 

161 N.J. 365

, 382 (1999).

There was sufficient credible evidence in the record to support the ALJ's

selection of Dr. Berman's opinion over that of Dr. Weiss; we are therefore bound

by the Board's adoption of those findings. See 

Gerba, 83 N.J. at 189

; 

Quigley, 231 N.J. Super. at 220-21

.

      Applying our highly deferential standard of review, we are satisfied there

is sufficient credible evidence in the record to support the Board's determination

that Ferrer failed to show she was unable to return to work as a teacher's aide.

The Board adopted the ALJ's findings of fact, which were based on his review

of the medical evidence and his assessment of both the credibility of the experts

and the weight to be given to their opinions. We must give appropriate deference

to those findings where, as here, they are based on sufficient credible evidence




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                                       11
in the record, 

Taylor, 158 N.J. at 658-59

, including Ferrer's return to work for

over five years before submitting her pension application.

      Affirmed.




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                                      12

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