ROBYN D. FISHER VS. BOARD OF TRUSTEES (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2135-19
    ROBYN D. FISHER,
    Petitioner-Appellant,
    v.
    BOARD OF TRUSTEES,
    PUBLIC EMPLOYEES'
    RETIREMENT SYSTEM
    Respondent-Respondent.
    ____________________________
    Submitted April 12, 2021 – Decided June 25, 2021
    Before Judges Sabatino and Gooden Brown.
    On appeal from the Board of Trustees of the Public
    Employees' Retirement System, Department of
    Treasury, PERS No. x-xxx379.
    Stayton Law, LLC, attorneys for appellant (Herbert J.
    Stayton, Jr., on the brief).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa H. Raksa, Assistant Attorney
    General, of counsel; Connor Martin, Deputy Attorney
    General, on the brief).
    PER CURIAM
    Petitioner Robyn Fisher appeals from the December 18, 2019 final agency
    decision of the Board of Trustees (Board) of the Public Employees' Retirement
    System (PERS) denying her request to reinstate her administrative appeal.
    Fisher voluntarily withdrew her appeal of the denial of her application for
    accidental disability retirement (ADR) benefits after the matter was transferred
    to the Office of Administrative Law (OAL) for a hearing and the Administrative
    Law (ALJ) heard testimony from three witnesses but had not yet issued an initial
    decision.   Because our review of the record in light of the relevant legal
    precedents supports the Board's decision, we affirm.
    We glean these facts from the record. Fisher was enrolled in PERS in
    1992 when she was employed as a Security Guard for the Camden City Parking
    Authority. Over the years, Fisher worked as a Clerk for the Camden City
    Housing Authority and as a Confidential Assistant with the Camden County
    Board of Elections, transferring her PERS benefits with each position. Fisher
    ultimately left government employment in 2017.
    On May 9, 2015, while still employed by Camden County Board of
    Elections, Fisher "fell down steps" at City Hall in Camden, spraining her ankle
    and straining her knee and back.      Fisher fell while attending a teaching
    A-2135-19
    2
    assignment for work. After the fall, Fisher drove herself to the urgent care and
    was released within twenty-four hours.       Fisher reported the injury to her
    employer on May 11, 2015.
    On November 3, 2015, Fisher "tripped on [a] curb, falling face forward"
    at the Parks Department in Cherry Hill while she was retrieving "provisional
    ballot bags" in the course of her employment with the Camden County Board of
    Elections. She "scraped [the] palms of [her] hands [and] knees [and] hurt [her]
    right shoulder." Fisher also "experienced [pain] in [her] lower back." Fisher
    drove herself to the emergency room and was released within twenty-four hours.
    She reported the injury to her employer the following day.          A co-worker
    witnessed Fisher "being helped up off the ground," but "did not see her fall."
    On March 11, 2016, Fisher submitted an application for ordinary disability
    retirement benefits (ODR). In her application, Fisher listed her disability as:
    Cognitive changes since chemotherapy for breast
    cancer in 2009-2010. Trouble processing information,
    unable to focus or concentrate, unable to complete tasks
    on time. Trouble finding [her] words, constantly
    smelling cigarette smoke, daily migraines[,] and
    vertigo. Falling and dropping things, bumping into
    walls, dizziness. Panic attacks and constant anxiety,
    major depressive disorder, social anxiety disorder.
    Chronic pain in shoulder, knees[,] and ankles.
    Weakness and fatigue.
    A-2135-19
    3
    On February 16, 2017, the Board denied Fisher's application for ODR
    benefits based on its determination that she was "not totally and permanently
    disabled from the performance of [her] regular and assigned duties pursuant to
    N.J.S.A. 43:15A-42 and relevant case law." The notification letter explained
    that based on her "years of service," Fisher "qualif[ied] for a Deferred
    Retirement," which meant she would be eligible to collect retirement benefits
    following her sixtieth birthday. 1 The notification also informed Fisher that she
    could appeal the Board's denial of ODR benefits within forty-five days, after
    which the determination would be final.
    On March 18, 2017, Fisher's counsel notified the Board that Fisher was
    appealing the February 16, 2017 denial of ODR benefits and requested an
    administrative hearing. However, two days earlier, on March 16, 2017, Fisher
    had submitted an application for ADR benefits. In that application, Fisher listed
    her disability as "orthopedic and neurologic residuals" stemming from the
    November 3, 2015 trip and fall incident. 2 In light of the ADR application, on
    1
    Fisher was born in 1965.
    2
    "The main difference between [ADR and ODR] is that [ODR] need not have
    a work connection. In addition, an [ADR] entitles a member to receive a higher
    level of benefits than those provided under an [ODR]." Patterson v. Bd. of Trs.,
    State Police Ret. Sys., 
    194 N.J. 29
    , 42-43 (2008).
    A-2135-19
    4
    March 31, 2017, Fisher's counsel notified the Board that she was withdrawing
    her ODR application and attendant appeal, electing instead to proceed with the
    March 16, 2017 ADR application.
    On September 20, 2017, the Board denied Fisher's application for ADR
    benefits. The Board explained:
    In making its determination, the Board noted that
    Ms. Fisher filed her application on the basis of an
    incident described as occurring on November 3, 2015.
    Also, the Board considered an incident that occurred on
    May 9, 2015 which was noted on the employer
    certification.
    The Board . . . determined that both incidents
    were identifiable as to time and place, are considered
    undesigned and unexpected and occurred during the
    performance of Ms. Fisher's regular and assigned
    duties. However, the Board determined there is no
    evidence in the record of a total and permanent
    disability as a result of either of these incidents.
    In making its determination, the Board evidently relied on an August 12,
    2017 Retirement System's Medical Review Board (MRB) report. The MRB
    found "[n]o objective evidence for an orthopedic disability" based on a review
    of Fisher's independent medical examination, medical records, and current job
    description. As a result, the MRB did not "consider [Fisher] to be totally and
    permanently disabled" and unable "to perform the duties of [her] job."
    A-2135-19
    5
    Thereafter, Fisher filed a timely administrative appeal. On November 9,
    2017, the Board approved her request for a hearing and transferred the matter to
    the OAL as a contested case. See N.J.S.A. 52:14B-1 to -31. On July 24 and
    October 9, 2018, an ALJ presided over Fisher's hearing during which both Fisher
    and the Board presented their respective cases. At the July 24 proceeding, the
    ALJ heard testimony from Fisher and her orthopedic expert, and on October 9,
    the Board's expert testified. The following day, October 10, 2018, prior to the
    conclusion of the hearing and the issuance of an initial decision by the ALJ,
    through counsel, Fisher submitted a signed "Withdrawal of Appeal" to the ALJ,
    with a copy to the Board, "withdrawing [her] appeal of the denial of [her]
    application for [ADR] benefits." The withdrawal neither explained the reason
    for the withdrawal nor limited the withdrawal in any way.
    Approximately three months later, on January 30, 2019, Fisher submitted
    another application for ODR benefits, listing "orthopedic and neurologic injuries
    to [her] right shoulder[,] bilateral knees[,] bilateral hands[,] right ankle[,] right
    wrist[,] and low back" as the disability. On January 31, 2019, the Division of
    Pensions and Benefits (Division) advised Fisher in a letter that she could not file
    another application for disability retirement for her "shoulders, knees, hands,
    ankle, wrist and back" because she was "not found disabled" in both her first
    A-2135-19
    6
    ODR application and her prior ADR application, which she appealed and "then
    withdrew." The Division determined that the September 20, 2017 denial by the
    Board of her ADR application "stands as the final decision" and "[n]o further
    [a]pplications for [d]isability [r]etirement for the same ailments will be
    accepted."
    On March 4, 2019, Fisher's counsel responded to the Division's letter,
    explaining the circumstances of Fisher's withdrawal of her ADR benefits appeal.
    According to counsel, when he arrived for the scheduled October 9, 2018 OAL
    hearing during which the Board's expert was scheduled to testify, Fisher
    "advised [him] that she had shoulder surgery scheduled." Counsel continued:
    I spoke with the [Deputy Attorney General (DAG)
    representing the Board] and advised him of this
    situation and suggested . . . that our options were to: (1)
    adjourn the testimony of [the Board's expert] until after
    [Fisher's] surgery and re-evaluation; or, (2) to proceed
    with [the expert's] testimony, knowing that he would
    have to be recalled after re-evaluation. The DAG
    indicated that he would have to call Pensions to discuss
    the situation. After his phone conference with a
    representative of Pensions, he indicated that his
    directive was to proceed with [the expert's] testimony.
    There then ensued some discussion with the [c]ourt
    wherein I indicated that the most expeditious option
    was to withdraw[ Fisher's] pending application, re-file
    and resume the application process after [Fisher] was
    re-evaluated. [The Board's expert's] testimony was
    taken. At no time did the DAG indicate to me, or the
    A-2135-19
    7
    ALJ, that Pensions would take the position set forth in
    [the Division's] letter.
    Consequently, I would request that this matter be
    referred back to the [OAL] for resumption of the
    hearing on [Fisher's] application for disability
    retirement benefits.
    On August 2, 2019, after reviewing counsel's "correspondence,
    [c]ertification . . . , and all documentation in the record," the Board denied
    Fisher's request to reinstate the appeal. In the notification letter, the Board
    explained that
    there was no requirement that Ms. Fisher withdraw her
    matter from the OAL so that she may proceed with an
    application for [ODR] benefits. Ms. Fisher had filed
    and withdrew several disability applications, all
    generally on the same impairments. . . . The matter was
    ripe for a hearing before the ALJ and Ms. Fisher opted
    to withdraw. Moreover, the regulations authorize the
    Board to award an [ODR] benefit to an [ADR] applicant
    if the member is found to be disabled from performing
    their regular and assigned duties without the need for a
    separate hearing or application. N.J.A.C. 17:2-6.7.
    Thus, the ALJ had jurisdiction to consider whether Ms.
    Fisher was eligible for [ODR] benefits.
    The letter also advised Fisher of her appeal rights, specifying that if an
    appeal was filed within the forty-five-day timeframe for appeal, the Board would
    "determine whether to grant an administrative hearing based upon the standards
    for a contested case hearing set forth in the Administrative Procedure Act,
    A-2135-19
    8
    N.J.S.A. 52:14B-1[,] and the Uniform Administrative Procedure Rule, N.J.A.C.
    1:1-1 et seq." Further, "[i]f the granted appeal involve[d] solely a question of
    law, the Board may retain the matter and issue a final determination which shall
    include detailed findings of fact and conclusions of law based upon the
    documents, submissions and legal arguments of the parties."
    On August 13, 2019, Fisher's counsel sent a letter to the Board appealing
    the Board's determination that Fisher "would not be able to re-file an application
    on conditions included in the withdrawn application," and that Fisher's
    "withdrawal was a final disposition of the matter."          Counsel specifically
    appealed the denial of "Fisher's request to reinstate her appeal." The letter
    notified the Board that Fisher would "rely on the procedural history of th[e]
    matter, the transcript of the hearing and discussions on the record with [the
    ALJ],"3 counsel's "[c]ertification dated July 2[], 2019,[4] the medical records and
    3
    In the December 18, 2019 final agency decision, the Board noted that Fisher's
    counsel "neither cited to nor provided the hearing transcripts" in support of the
    appeal. Although the July 24, 2018 transcript of the OAL hearing was provided
    as part of the record on this appeal, the October 9, 2018 transcript that
    presumably contained discussions on the record pertaining to Fisher's
    withdrawal of her appeal was not provided.
    4
    Counsel's July 2, 2019 certification was not provided as part of the appellate
    record. However, we presume that it was the same certification reviewed by the
    Board in its August 2, 2019 denial of Fisher's request to reinstate her appeal and
    A-2135-19
    9
    reports previously submitted as well as additional medical documentation and
    information to be submitted on the issue of total and permanent disability from
    the performance of her regular and assigned duties as well as causal
    relationship." Counsel "requested that th[e] matter be referred by the Board for
    an administrative hearing based upon the standards for a contested case
    hearing."
    On December 18, 2019, the Board issued a final agency decision
    reiterating its denial of Fisher's request to reinstate her appeal. As a threshold
    matter, the Board denied Fisher's request for an administrative hearing, finding
    "no material facts in dispute." The Board then made "[f]indings of [f]act,"
    reciting the procedural history of the matter.      See Sloan ex rel. Sloan v.
    Klagholtz, 
    342 N.J. Super. 385
    , 392 (App. Div. 2001) ("If a matter before an
    agency does not present contested material issues of fact that can be decided
    only 'after [an] opportunity for an agency hearing,' it is not a contested case
    subject to transfer to the OAL." (alteration in original) (quoting N.J.S.A.
    52:14B-2)).
    that it recounted the circumstances of the withdrawal of the appeal contained in
    counsel's March 4, 2019 response to the Division's letter.
    A-2135-19
    10
    Next, the Board determined it was able to render "conclusions of law . . .
    on the basis of the retirement system's enabling statutes and regulations without
    the need for an administrative hearing." In that regard, in addition to relying on
    the reasons stated in its August 2, 2019 denial letter, in denying Fisher's request
    to reinstate her appeal, the Board added:
    Under the Uniform Administrative Procedure
    Rules, a party may withdraw their request for a hearing
    on the contested issues before the OAL upon written
    notice to the ALJ and all parties. N.J.A.C. 1:1-19.2.
    Once a party withdraws their request for a hearing, the
    ALJ returns the matter to the clerk and the matter is
    returned to the agency head for disposition. [Ibid.] In
    this case, you filed papers to withdraw Ms. Fisher's
    appeal from the OAL. The Board notes that there is no
    language in either document which limits the
    withdrawal to a specific issue in the case, and the
    withdrawal was not filed with any language respecting
    whether it was with or without prejudice. In light of the
    procedural posture of this case, the Board also found
    that you failed to provide a reasonable basis or good
    cause to reinstate a matter that was withdrawn from the
    OAL, returned to the agency, and placed on the Board's
    meeting agenda to note the withdrawal.
    The Board also notes that there was no reason to
    withdraw Ms. Fisher's appeal from the OAL in order to
    pursue an [o]rdinary, rather than an [a]ccidental
    disability pension. PERS members may apply for either
    [o]rdinary or [a]ccidental [d]isability retirement
    benefits. N.J.S.A. 43:15A-42, 43. Under both statutory
    schemes, a member must establish a total and
    permanent disability in order to qualify for either
    disability benefit. [Ibid.] Moreover, the regulations
    A-2135-19
    11
    authorize the Board to award an [ODR] benefit to an
    [a]ccidental [d]isability applicant if the member is
    found to be disabled from performing their regular and
    assigned duties without the need for a separate hearing
    or application. N.J.A.C. 17:2-6.7.
    In this ensuing appeal, Fisher argues that "[t]here is no prejudice to either
    party in re-opening the OAL proceedings to supplement the record with expert
    medical testimony and/or medical records relative to the impact of Fisher's
    shoulder surgery." She asserts that because "the interests of justice and a liberal
    reading of the applicable pension laws support permitting [her] to reinstate her
    appeal," the "Board's denial of her request . . . is unreasonable, arbitrary and
    capricious."
    Our review of decisions by administrative agencies is limited, with the
    party challenging the validity of the administrative action carrying a substantial
    burden of persuasion. In re Stallworth, 
    208 N.J. 182
    , 194 (2011). Under our
    standard of review, an agency's determination must be sustained "'unless there
    is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks
    fair support in the record.'" Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
    
    206 N.J. 14
    , 27 (2011) (quoting In re Herrmann, 
    192 N.J. 19
    , 27-28 (2007)).
    Thus, on appeal, our role is limited to the evaluation of three factors:
    (1) whether the agency's action violates express or
    implied legislative policies, that is, did the agency
    A-2135-19
    12
    follow the law; (2) whether the record contains
    substantial evidence to support the findings on which
    the agency based its action; and (3) whether in applying
    the legislative policies to the facts, the agency clearly
    erred in reaching a conclusion that could not reasonably
    have been made on a showing of the relevant factors.
    [Herrmann, 
    192 N.J. at 28
     (quoting Mazza v. Bd. of
    Trs., Police & Firemen's Ret. Sys., 
    143 N.J. 22
    , 25
    (1995)).]
    When the agency's decision satisfies those criteria, we are obliged to
    afford substantial deference to the agency's expertise and superior knowledge of
    a particular field, even if we would have reached a different result from that
    reached by the agency. Ibid.; In re Taylor, 
    158 N.J. 644
    , 657 (1999). While we
    are not bound by an agency's interpretation of legal issues, which we review de
    novo, Russo, 
    206 N.J. at 27
    , "[w]e must give great deference to an agency's
    interpretation and implementation of its rules enforcing the statutes for which it
    is responsible." Piatt v. Bd. of Trs., Police & Firemen's Ret. Sys., 
    443 N.J. Super. 80
    , 99 (App. Div. 2015) (quoting St. Peter's Univ. Hosp. v. Lacy, 
    185 N.J. 1
    , 13 (2005)). "Such deference has been specifically extended to state
    agencies that administer pension statutes." 
    Ibid.
    We acknowledge "the well-settled proposition that since pension laws are
    remedial social legislation, they must be liberally construed in favor of the
    persons intended to be benefitted thereby." Bumbaco v. Bd. of Trs. of Pub.
    A-2135-19
    13
    Emp.s' Ret. Sys., 
    325 N.J. Super. 90
    , 94 (App. Div. 1999) (citing Steinmann v.
    Dep't of Treasury, 
    116 N.J. 564
    , 572 (1989)). 5 Relying on this recognized
    liberality in the interpretation of pension laws to benefit the members, Fisher
    challenges the Board's denial of her request to reinstate her administrative
    appeal as unreasonable.
    Our Supreme Court has recognized that "[t]he power to reopen
    proceedings 'may be invoked by administrative agencies to serve the ends of
    essential justice and the policy of the law.'" Minsavage for Minsavage v. Bd. of
    Trs., Teachers' Pension & Annuity Fund, 
    240 N.J. 103
    , 107-08 (2019) (quoting
    In re Van Orden, 
    383 N.J. Super. 410
    , 419 (App. Div. 2006)). However, the
    Board's exercise of that inherent power should be invoked only when a member
    demonstrates "good cause, reasonable grounds, and reasonable diligence." Id.
    at 109.
    5
    While "an employee is entitled to [such] liberality . . . when eligible for
    benefits, . . . eligibility is not to be liberally permitted." Smith v. State, Dep't of
    Treasury, Div. of Pensions & Benefits, 
    390 N.J. Super. 209
    , 213 (App. Div.
    2007). "Instead, in determining a person's eligibility to a pension, the applicable
    guidelines must be carefully interpreted so as not to 'obscure or override
    considerations of . . . a potential adverse impact on the financial integrity of the
    [f]und.'" 
    Ibid.
     (alteration in original) (quoting Chaleff v. Teachers' Pension &
    Annuity Fund Trustees, 
    188 N.J. Super. 194
    , 197 (App.Div. 1983)).
    A-2135-19
    14
    In Steinmann, 
    116 N.J. at 565
    , and Duvin v. State, Dep't of Treasury, Pub.
    Employees' Ret. Sys., 
    76 N.J. 203
    , 208 (1978), the Court determined that the
    Board's inherent powers allowed members to reopen their retirement selections
    based on considerations of good cause and reasonable diligence.
    The pensioners in Steinmann and Duvin selected sub-
    optimal retirement options. This Court held that the
    Steinmann pensioner had shown good cause for
    amending her pension designation and should have
    been permitted to do so, and that the Duvin pensioner
    should have the opportunity at further proceedings to
    show good cause "for reopening his original pension
    application and allowing him to claim accidental
    disability retirement in lieu of early retirement
    allowance. . . ."
    [Minsavage, 240 N.J. at 109 (quoting Steinmann, 
    116 N.J. at 565, 577-78
    ; Duvin, 
    76 N.J. at 205-06, 208
    ).]
    In Minsavage, the Court considered "whether a widow [could] modify the
    retirement application of her recently deceased husband, who was a member of
    the Teachers' Pension and Annuity Fund . . . , even though his application was
    never approved because he selected a retirement option for which he was
    ultimately ineligible." Id. at 105. The Court held "that neither membership nor
    prior approval of a retirement application [was] required for modification of a
    retirement selection where good cause, reasonable grounds, and reasonable
    diligence [were] shown," and remanded for the Board "to allow [the widow] the
    A-2135-19
    15
    opportunity to argue in favor of modification under that standard." Ibid. The
    Court pointed out that "[s]uch proof must include evidence that [the decedent]
    qualified for ordinary disability retirement and that, but for his incapacity, he
    would have changed his retirement selection to ordinary disability." Id. at 110.
    Here, the interests of justice do not weigh in favor of allowing Fisher to
    reinstate her appeal, which she voluntarily withdrew on the advice of counsel.
    Unlike Steinmann, Duvin, and Minsavage, Fisher did not select a sub-optimal
    retirement option. On the contrary, she selected an ADR, which "entitles a
    member to receive a higher level of benefits than those provided under an
    [ODR]." Patterson, 
    194 N.J. at 43
    . Fisher asserts she "exercised her right to
    withdraw[] her pending application on appeal before the OAL with the intention
    of rightfully re-filing an application for ODR benefits." However, as the Board
    pointed out, if Fisher was found to be disabled from performing her regular and
    assigned duties but ineligible for ADR, N.J.A.C. 17:2-6.7 authorized the Board
    to award an ODR benefit instead, without the need for a separate hearing or
    application.
    Further,   although   Fisher's   attorney   subsequently   explained    the
    circumstances of her withdrawal to the Board, at the time she withdrew her
    appeal, the withdrawal was unconditional. Thus, her claim that she was unaware
    A-2135-19
    16
    that "the withdrawal was with prejudice" rings hollow. See Maeker v. Ross, 
    219 N.J. 565
    , 578 (2014) ("[E]veryone is presumed to know the law. . . ."). Even
    considering the circumstances of Fisher's withdrawal, a re-evaluation following
    impending shoulder surgery was unnecessary because in order to support her
    disability retirement application, Fisher had to prove that she was totally and
    permanently disabled at the time she left employment in 2017. See N.J.A.C.
    17:1-6.4(a) ("Each disability retirement applicant must prove that his or her
    retirement is due to a total and permanent disability that renders the applicant
    physically or mentally incapacitated from performing normal or assigned job
    duties at the time the member left employment. . . ."). Thus, her condition
    following shoulder surgery over a year later was immaterial.
    Additionally, to support her request to the Board for reinstatement of her
    appeal, Fisher's counsel indicated in his August 13, 2019 letter that, among other
    things, Fisher would rely on the transcript of the October 9, 2018 hearing and
    "discussions on the record with the [ALJ]" that purportedly related to the
    withdrawal of her appeal. However, as noted by the Board in its final decision,
    Fisher's counsel "neither cited to nor provided the hearing transcripts" in support
    of the appeal. Likewise, Fisher failed to provide the Board with additional
    A-2135-19
    17
    medical documentation on the issue of total and permanent disability when
    afforded an opportunity to do so.
    On this record, we are satisfied that Fisher failed to show good cause,
    reasonable grounds, or reasonable diligence to invoke the Board's exercise of its
    inherent power to reopen the proceedings and reinstate her appeal. Thus, there
    is no showing that the Board's decision was arbitrary, capricious, or
    unreasonable, or that it lacked fair support in the record to justify our
    intervention.
    Affirmed.
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    18