ANNE TRUZZOLINO VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM(POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4753-14T2
ANNE TRUZZOLINO,
Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent.
________________________________________________
Argued November 29, 2016 – Decided May 12, 2017
Before Judges Messano and Guadagno.
On appeal from the Division of Pensions and
Benefits, Police and Firemen's Retirement
System, PFRS No. 3-91420.
Samuel M. Gaylord argued the cause for
appellant (Gaylord Popp, LLC, attorneys; Mr.
Gaylord, on the brief).
Danielle P. Schimmel, Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Joseph A.
Palumbo, Deputy Attorney General, on the
brief).
PER CURIAM
Petitioner Anne Truzzolino appeals from the June 9, 2015
final agency decision of the Board of Trustees of the Police and
Fireman's Retirement System (PFRS Board), which rejected
petitioner's application for accidental disability retirement
benefits. We affirm.
Petitioner enrolled in PFRS in 2001 when she began
employment as a correction officer with the Juvenile Justice
Commission. On March 11, 2011, she responded to a report that a
female juvenile inmate had assaulted a teacher. Petitioner and
two other officers restrained the inmate and placed handcuffs on
her, but a lieutenant directed that the handcuffs be loosened.
The inmate managed to free one of her hands and struck
petitioner in the head. The lieutenant and another officer
responded and again restrained the inmate. Petitioner was told
to report to the nurse's office for a medical evaluation.
Petitioner was transported to Robert Wood Johnson Hospital
where she was diagnosed with a concussion and given a CT scan
which was negative. On March 25, 2011, petitioner was seen by
Dr. Michael Sananman, a neurologist, who diagnosed her with
post-concussion syndrome with headaches, insomnia, difficulty
concentrating, and tinnitus. Dr. Sananman opined that
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petitioner was not able to return to work at that time because
of her "persistent symptoms."
On September 26, 2011, petitioner applied for accidental
disability benefits claiming she suffered from herniated disks
in her neck, "severe constant migraines . . . mental
trauma . . . with recurring nightmares, anxiety, panic attacks,
[and] depression." On August 20, 2012, the Board denied her
application, concluding that she was not totally and permanently
disabled from the performance of her regularly assigned duties
and there was no evidence of direct causation of a total and
permanent disability from the March 2011 incident.
Petitioner appealed and the matter was transferred to the
Office of Administrative Law. An administrative law judge (ALJ)
heard testimony from petitioner, her expert, Dr. Sananman, and
the Board's expert, Dr. Steven Lomazow. The ALJ found Dr.
Lomazow less credible than Dr. Sananman as thirty-percent of his
practice is dedicated to medical evaluations performed for the
State, while Dr. Sananman devotes only a small percentage of his
practice to evaluations. The ALJ concluded petitioner suffered
a permanent and total disability, and recommended reversing the
Board's denial of accidental disability benefits.
The Board adopted the ALJ's findings of fact "with
amplification and modification" but rejected her conclusions of
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law and recommendation that petitioner's application for
disability retirement be granted.
On appeal, petitioner argues that she qualifies for
accidental disability retirement benefits and the Board's
decision is arbitrary, capricious, unreasonable, and unsupported
by the record.
Our review of administrative agency action is limited. In
re Herrmann, 192 N.J. 19, 27 (2007). "An administrative
agency's final quasi-judicial decision will be sustained unless
there is a clear showing that it is arbitrary, capricious, or
unreasonable, or that it lacks fair support in the record." Id.
at 27-28. We are not bound by an agency's interpretation of a
statute or its determination of a legal issue. Mayflower Sec.
Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
While the Board may reject the findings of the ALJ, it is
"not at liberty to simply substitute its judgment for that of
the ALJ's." Cavalieri v. Bd. of Trs. of the Pub. Emps. Ret.
Sys., 368 N.J. Super. 527, 534 (App. Div. 2004).
Petitioner concedes that the Board provided reasons for
rejecting the ALJ's findings, but argues those reasons are not
supported by credible evidence in the record. We disagree.
The Board noted inconsistencies in Dr. Sananman's testimony
which were not identified or considered by the ALJ. Dr.
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Sananman's testimony that petitioner suffered by "nearly daily
[] headaches" was contrasted by petitioner's testimony that her
headaches occurred "twice a week." Dr. Sananman also testified
that petitioner is incapacitated from performing her duties as a
corrections officer, but petitioner only identified three duties
she could not perform.
The Board also noted that the ALJ did not consider Dr.
Sananman's testimony that his diagnosis of post-concussion
syndrome was based entirely on petitioner's self-reporting.
The Board also rejected the ALJ's conclusion that Dr.
Lomazow was less credible than Dr. Sananman, in part, because
Dr. Lomazow "has a greater motivation to testify in favor if
PFRS" because thirty-percent of his practice is dedicated to
performing medical evaluations for the State.
While an expert's compensation may be probative of bias,
see Gensollen v. Pareja, 416 N.J. Super. 585, 591 (App. Div.
2010), and multiple appearances on behalf of the same client may
be "fair game for cross-examination" of an expert. Espinal v.
Arias, 391 N.J. Super. 49, 61 (App. Div.), certif. denied, 192
N.J. 482 (2007). These factors, without more, do not suggest a
motive to testify in favor of a client as found by the ALJ.
To qualify for accidental disability benefits, the member
must be "permanently and totally disabled as a direct result of
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a traumatic event occurring during and as a result of the
performance of his regular or assigned duties." N.J.S.A. 43:16A-
7(1). The Board rejected the ALJ's conclusion, finding it was
based on a "flawed assessment" of the parties' expert witnesses'
testimony. The Board provided ample support for its decision
and we find no reason to disturb it.
Affirmed.
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