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

• Court: New Jersey Superior Court Appellate Division
• Decided: May 12, 2017
• Docket: A-4753-14T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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

2 A-4753-14T2 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

3 A-4753-14T2 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.

4 A-4753-14T2 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

5 A-4753-14T2 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.

6 A-4753-14T2