Serena Swaggerty v. Board of Trustees, Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2329-22
SERENA SWAGGERTY,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
__________________________
Submitted May 13, 2024 – Decided July 5, 2024
Before Judges Gilson and DeAlmeida.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. xx2002.
Serena Swaggerty, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Brandon Bowers, Deputy Attorney
General, on the brief).
PER CURIAM
Serena Swaggerty appeals from a February 16, 2023 final agency decision
by the Board of Trustees, Public Employees' Retirement System (the Board),
which denied her application for ordinary disability retirement benefits.
Swaggerty argues that the Board erred because she was totally and permanently
disabled from performing her job duties. In making its decision, the Board relied
on a medical expert who examined Swaggerty and opined that she could
continue to perform her duties as a clerk. Accordingly, the Board's decision is
supported by substantial, credible evidence, and we affirm.
I.
Swaggerty was employed by Atlantic County (the County), and between
2013 and 2017, she held two different positions. In 2013, Swaggerty was
employed as a food service worker. Her duties in that position included
preparing food, serving food, and cleaning the food service facilities. In March
2013, Swaggerty was injured while at work when an elevator malfunctioned and
closed on her left shoulder. Following the accident, Swaggerty was placed on
light duty. Over the next two years, Swaggerty underwent several surgeries on
her left shoulder.
In April 2015, Swaggerty transferred to the position of Clerk 1 in the
County's Supplemental Nutrition Assistance Program Department. In that
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position, Swaggerty was responsible for answering phones, filing papers, faxing
documents, making copies, inputting data on computers, assisting caseworkers,
and occasionally picking up mail. On September 29, 2015, Swaggerty reported
that she aggravated her shoulder injury while typing on a computer. In October
2015, and in March 2016, Swaggerty visited two orthopedic surgeons, both of
whom examined her and concluded that her shoulder pain related back to the
2013 injury.
In February 2017, Swaggerty left her employment as a clerk with the
County and thereafter did not return to work for the County. Two years later,
in March 2019, Swaggerty applied for accidental disability retirement benefits.
In her application, she identified her accidents in March 2013 and September
2015 as the traumatic causes of her disability.
The Board denied Swaggerty's application for accidental disability
retirement benefits in June 2020. The Board determined that Swaggerty was not
totally and permanently disabled from performing her regular or assigned duties
as a clerk.
Swaggerty administratively appealed that determination, and the matter
was transferred to the Office of Administrative Law for a hearing as a contested
case. An Administrative Law Judge (ALJ) conducted a two-day hearing on July
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20, 2022, and August 16, 2022. On the first day of the hearing, Swaggerty's
counsel informed the ALJ that Swaggerty was no longer pursuing an application
for accidental disability retirement benefits; rather, she was seeking ordinary
disability retirement benefits. Consequently, the only issue before the ALJ was
whether Swaggerty was totally and permanently disabled from the performance
of her duties as a clerk.
Three witnesses testified at the hearing: Swaggerty; Dr. David Weiss, an
orthopedic surgeon called by Swaggerty as an expert; and Dr. Arnold T. Berman,
an orthopedic surgeon called by the Board as an expert.
Swaggerty testified that she had applied for disability retirement benefits
because she was unable to reach for and pull files, lift boxes of mail, hold the
phone to her ear with her left arm or hand, or type on the computer. On cross-
examination, Swaggerty admitted that she never asked for accommodations to
perform work that would not aggravate her shoulder. She also acknowledged
that after February 2017, she worked in two different positions for other
employers. In that regard, she testified that she had worked as a part-time
cashier for Tropicana and as a part-time employee with Preferred Care.
Weiss was qualified as an expert in the field of orthopedics. He explained
that he had reviewed Swaggerty's medical history and performed an examination
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of her left shoulder. Weiss opined that Swaggerty was totally and permanently
disabled from the performance of her duties as a clerk and as a food service
worker.
Berman was also qualified as an expert in the field of orthopedics, and he
testified he had reviewed Swaggerty's medical records and performed an
independent medical examination of Swaggerty. He opined that Swaggerty's
surgeries had been successful and, although she had a reduced range of motion
in her shoulder, he opined that she could continue to perform her duties as a
clerk.
On January 3, 2023, the ALJ issued an initial decision affirming the
Board's denial of Swaggerty's application for ordinary disability retirement
benefits. The ALJ found that Berman was "more persuasive in his conclusion
that Swaggerty was not totally and permanently disabled from the performance
of her job duties" as a clerk. The ALJ also found that Weiss' reasoning and
conclusions were not as persuasive as Berman's reasoning and conclusions.
Based on Berman's testimony, the ALJ found that Swaggerty had failed to prove
that she was totally and permanently disabled from performing her duties as a
clerk. Accordingly, the ALJ affirmed the denial of disability retirement benefits.
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At a meeting on February 15, 2023, the Board adopted the ALJ's decision.
The following day, the Board issued a final agency decision denying
Swaggerty's application for ordinary disability retirement benefits. Swaggerty
now appeals from the Board's final decision.
II.
An appellate court's review of an administrative agency determination is
limited. Carter v. Township of Bordentown (In re Carter), 191 N.J. 474, 482
(2007); McKnight v. Bd. of Rev., Dep't of Lab., 476 N.J. Super. 154, 162 (App.
Div. 2023). 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." McKnight, 476 N.J. Super. at 162 (quoting In re Herrmann, 192 N.J.
19, 27-28 (2007)). Under this standard, our scope of review is guided by three
major inquiries: (1) whether the agency's decision conforms with relevant law;
(2) whether the agency's 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. Allstars Auto Grp., Inc. v.
N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (quoting In re Stallworth,
208 N.J. 182, 194 (2011)). The party challenging the administrative action bears
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the burden of showing that the agency's decision did not meet that standard.
Lavezzi v. State, 219 N.J. 163, 171 (2014).
III.
Swaggerty is representing herself on this appeal. She argues that the
Board erred in denying her application for accidental disability retirement
benefits. In that regard, she relies on the testimony and opinion of Weiss and
contends that she did prove that she was totally and permanently disabled from
performing her duties as a clerk.
Initially, we will address Swaggerty's argument concerning the denial of
her application for accidental disability retirement benefits. We reject that
argument for two reasons. First, Swaggerty abandoned her claim for accidental
disability retirement benefits before the ALJ. Swaggerty made that decision
with the assistance of counsel. Appellate courts will normally not address issues
that were not preserved before an agency. See State v. Robinson, 200 N.J. 1, 20
(2009) (explaining that "[i]t is a well-settled principle that our appellate courts
will decline to consider questions or issues not properly presented to the trial
court . . . unless the questions . . . go to the jurisdiction of the trial court or
concern matters of great public interest" (alteration in original) (quoting Nieder
v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))); ZRB, LLC v. N.J. Dep't of
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Env't Prot., 403 N.J. Super. 531, 536 n.1 (App. Div. 2008) (applying the
principle in Robinson and Nieder to appeals from administrative agency orders).
Second, Swaggerty did not present evidence that would support a claim
for accidental disability retirement benefits. To claim accidental disability
benefits, a member of the Public Employees' Retirement System (PERS) must
prove that he or she "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. 43:15A-43(a); see also Richardson v.
Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007) (setting
forth a five-prong test that a member must satisfy to qualify for accidental
disability retirement benefits). Swaggerty did not present evidence before the
ALJ to support a claim that she was disabled because of a traumatic event.
Moreover, on this appeal, she has not even addressed the factors she needed to
prove.
We, therefore, turn to an analysis of her claim for ordinary disability
retirement benefits. To qualify for ordinary disability retirement benefits, a
PERS member must demonstrate that he or she "is physically or mentally
incapacitated for the performance of duty and should be retired." N.J.S.A.
43:15A-42. So, the member must show that he or she has a disabling condition
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that is total and permanent, and that the member is unable to perform his or her
regular or assigned duties due to the permanently disabling condition. See
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 42-43 (2008); Bueno
v. Bd. of Trs., Tchrs.' Pension & Annuity Fund, 404 N.J. Super. 119, 124 (App.
Div. 2008); N.J.A.C. 17:2-6.1(g)(3). Moreover, the member must provide
expert evidence to support the claim of permanent disability. Bueno, 404 N.J.
Super. at 126; see also Patterson, 194 N.J. at 50-51.
The Board, in adopting the ALJ's decision, agreed with the ALJ's
credibility determinations. Thus, the Board rejected the testimony of Weiss and
accepted the testimony of Berman. Berman testified that Swaggerty was not
totally and permanently disabled from performing her duties as a clerk. As the
triers of fact, the ALJ and Board were entitled to determine the experts'
credibility and the weight to be accorded to the experts' testimony. See
Griepenburg v. Township of Ocean, 220 N.J. 239, 254 (2015) (explaining that
in an appeal from a non-jury trial, appellate courts "give deference to the
[factfinder who] heard the witnesses, sifted the competing evidence, and made
reasoned conclusions"); see also State v. Hubbard, 222 N.J. 249, 263-64 (2015).
The Board could also accept the testimony of one expert and reject the
testimony of another expert. See Oceanside Charter Sch. v. N.J. State Dep't of
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Educ., 418 N.J. Super. 1, 9 (App. Div. 2011) (citing In re Howard Sav. Bank,
143 N.J. Super. 1, 9 (App. Div. 1976)). Berman testified to a reasonable degree
of medical certainty that Swaggerty was not totally and permanently disabled
from performing her duties as a clerk. He based his opinion on an independent
medical examination of Swaggerty, as well as a review of Swaggerty's medical
history and a review of the Clerk 1 job description. In short, there was
substantial, credible evidence to support the Board's denial of Swaggerty's
application for ordinary disability retirement benefits. Moreover, we discern
nothing arbitrary, capricious, or unreasonable in the Board's decision.
Affirmed.
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