NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2368-19
DIANNE MERWIN,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent. __________________________
Argued June 30, 2021 – Decided March 2, 2022
Before Judges Accurso and DeAlmeida.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. xx-7563.
Daniel J. Zirrith argued the cause for appellant (Law Offices of Daniel J. Zirrith, LLC, attorneys; Daniel J. Zirrith, of counsel and on the briefs; Edward H. Kerwin, on the briefs).
Matthew Melton, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Matthew Melton, on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Petitioner Dianne Merwin appeals from the January 16, 2020 final
agency decision of the Board of Trustees (Board) of the Public Employees'
Retirement System (PERS) denying her application for ordinary disability
retirement benefits. We affirm.
I.
Merwin was employed by the New Jersey Judiciary as an Administrative
Supervisor 1, Finance, in Hudson County. On November 4, 2015, as Merwin
got up from her desk, her pant leg caught on an open drawer, causing her to
lose her balance, strike her head on a shelf, and fall to the ground. She was
treated at an emergency room and discharged the following day with
complaints of hip pain, neck pain, and a headache. She never returned to
work.
Dr. John E. Robinton conducted a neurological examination of Merwin
shortly after the fall. He noted that Merwin reported disabling headaches and
cognitive difficulties. He diagnosed her with a cervical strain and a
concussion as a result of the fall. The doctor opined that Merwin was unable
A-2368-19 2 to work in any capacity, but was hopeful that she would have a full recovery
and be able to return to work after treatment. In the following months, Merwin
continued to report that she was experiencing headaches and cognitive
difficulties. Ultimately, Dr. Robinton opined that Merwin had reached
maximum medical improvement, although she continued to have constant
headaches, depression, and anxiety, and had not returned to work.
Around the same time, Dr. George J. Carnevale conducted a
neuropsychological evaluation of Merwin to determine her level of
neurocognitive functioning. He diagnosed Merwin with post-concussion
syndrome and psychological adjustment issues and opined that she was
capable of "light duty work" under specified conditions.
Merwin subsequently requested accommodations from the Judiciary in
the form of a light duty assignment, the reassignment of other employees to
mentor and support her to avoid multi-tasking, and a quiet workplace. The
Judiciary declined Merwin's proposed accommodations because there were no
light duty positions available and the other employees at Merwin's workplace
could not be assigned to watch over her work because they had their own
duties to complete.
A-2368-19 3 Merwin subsequently applied to the Board for accidental disability
retirement benefits. See N.J.S.A. 43:15A-43. She alleged that the fall was a
traumatic event during and as a result of the performance of her duties that
caused neurological, orthopedic, and psychological injuries resulting in her
permanent and total disability from performing the regular duties of her
position.
The Board denied her application. Although it found Merwin's fall was
identifiable as to time and place, undesigned and unexpected, and the result of
her regular and assigned duties, the Board concluded she was not permanently
and totally physically disabled from performance of her regular job duties. In
addition, the Board found Merwin was not permanently and totally
psychologically disabled from performing such duties. Thus, the Board
concluded Merwin was not entitled to any form of disability retirement
benefits.
Merwin appealed the Board's decision and the matter was transferred to
the Office of Administrative Law. At a hearing, Merwin presented the expert
testimony of Dr. Anca Bereanu, a Board-certified clinical neurologist. Dr.
Bereanu testified that as a result of the fall, Merwin suffered a closed -head
trauma with retrograde amnesia, cervical and lumbar strain/contusion,
A-2368-19 4 aggravation of cervical degenerative joint disease, degenerative disc disease
cervical spine with herniated discs, lumbar spine with bulging discs, post -
concussive syndrome with residual mild cognitive deficits, headaches, and
moderate reactive depression due to chronic sleep dysregulation. She opined
that Merwin was unable to work in any capacity as the result of the physical
injuries she sustained in the fall.
Dr. Bereanu acknowledged that prior to the fall Merwin had clear
manifestations of anxiety and depression. She opined that those psychological
conditions were significant contributing factors to her present disability, but
were not independently sufficient to be disabling or permanently and totally
disabling.
The Board presented the expert testimony of Dr. Steven Lomazow, an
expert in neurology. Dr. Lomazow testified that he found no objective
evidence of Merwin having a permanent and total neurological disability. His
examinations showed normal neurological functions, including motor function,
sensory function, coordination, and gait, as well as no significant deficits in
memory. Dr. Lomazow opined, however, that Merwin had an inability to
return to work due to psychological conditions that predated the fall and an
"adjustment disorder" that developed because of the fall. He also opined that
A-2368-19 5 the combination of her existing psychological conditions and the psychological
conditions that arose from the fall rendered Merwin permanently and totally
psychologically disabled from the performance of her regular duties. He did
not conduct any neuropsychological tests on Merwin before reaching this
opinion, which he based only on his review of the opinions of other doctors
who had examined Merwin as stated in medical records he reviewed.
Administrative Law Judge (ALJ) Elissa Mizzone Testa issued an initial
decision and recommendation that, although not entitled to accidental
disability retirement benefits, Merwin was permanently and totally disabled
from the performance of her job duties. The ALJ, relying on the opinion of
Dr. Lomazow, which she found to be the most credible offered at the hearing,
concluded that Merwin suffered post-concussive syndrome, mild cognitive
deficits, and headaches as a result of her fall. However, she concluded that
those neurological conditions alone did not render Merwin permanently and
totally disabled from performing her job duties. As a result, ALJ Testa
determined that Merwin was not entitled to accidental disability retirement
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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-2368-19
DIANNE MERWIN,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent. __________________________
Argued June 30, 2021 – Decided March 2, 2022
Before Judges Accurso and DeAlmeida.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. xx-7563.
Daniel J. Zirrith argued the cause for appellant (Law Offices of Daniel J. Zirrith, LLC, attorneys; Daniel J. Zirrith, of counsel and on the briefs; Edward H. Kerwin, on the briefs).
Matthew Melton, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Matthew Melton, on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Petitioner Dianne Merwin appeals from the January 16, 2020 final
agency decision of the Board of Trustees (Board) of the Public Employees'
Retirement System (PERS) denying her application for ordinary disability
retirement benefits. We affirm.
I.
Merwin was employed by the New Jersey Judiciary as an Administrative
Supervisor 1, Finance, in Hudson County. On November 4, 2015, as Merwin
got up from her desk, her pant leg caught on an open drawer, causing her to
lose her balance, strike her head on a shelf, and fall to the ground. She was
treated at an emergency room and discharged the following day with
complaints of hip pain, neck pain, and a headache. She never returned to
work.
Dr. John E. Robinton conducted a neurological examination of Merwin
shortly after the fall. He noted that Merwin reported disabling headaches and
cognitive difficulties. He diagnosed her with a cervical strain and a
concussion as a result of the fall. The doctor opined that Merwin was unable
A-2368-19 2 to work in any capacity, but was hopeful that she would have a full recovery
and be able to return to work after treatment. In the following months, Merwin
continued to report that she was experiencing headaches and cognitive
difficulties. Ultimately, Dr. Robinton opined that Merwin had reached
maximum medical improvement, although she continued to have constant
headaches, depression, and anxiety, and had not returned to work.
Around the same time, Dr. George J. Carnevale conducted a
neuropsychological evaluation of Merwin to determine her level of
neurocognitive functioning. He diagnosed Merwin with post-concussion
syndrome and psychological adjustment issues and opined that she was
capable of "light duty work" under specified conditions.
Merwin subsequently requested accommodations from the Judiciary in
the form of a light duty assignment, the reassignment of other employees to
mentor and support her to avoid multi-tasking, and a quiet workplace. The
Judiciary declined Merwin's proposed accommodations because there were no
light duty positions available and the other employees at Merwin's workplace
could not be assigned to watch over her work because they had their own
duties to complete.
A-2368-19 3 Merwin subsequently applied to the Board for accidental disability
retirement benefits. See N.J.S.A. 43:15A-43. She alleged that the fall was a
traumatic event during and as a result of the performance of her duties that
caused neurological, orthopedic, and psychological injuries resulting in her
permanent and total disability from performing the regular duties of her
position.
The Board denied her application. Although it found Merwin's fall was
identifiable as to time and place, undesigned and unexpected, and the result of
her regular and assigned duties, the Board concluded she was not permanently
and totally physically disabled from performance of her regular job duties. In
addition, the Board found Merwin was not permanently and totally
psychologically disabled from performing such duties. Thus, the Board
concluded Merwin was not entitled to any form of disability retirement
benefits.
Merwin appealed the Board's decision and the matter was transferred to
the Office of Administrative Law. At a hearing, Merwin presented the expert
testimony of Dr. Anca Bereanu, a Board-certified clinical neurologist. Dr.
Bereanu testified that as a result of the fall, Merwin suffered a closed -head
trauma with retrograde amnesia, cervical and lumbar strain/contusion,
A-2368-19 4 aggravation of cervical degenerative joint disease, degenerative disc disease
cervical spine with herniated discs, lumbar spine with bulging discs, post -
concussive syndrome with residual mild cognitive deficits, headaches, and
moderate reactive depression due to chronic sleep dysregulation. She opined
that Merwin was unable to work in any capacity as the result of the physical
injuries she sustained in the fall.
Dr. Bereanu acknowledged that prior to the fall Merwin had clear
manifestations of anxiety and depression. She opined that those psychological
conditions were significant contributing factors to her present disability, but
were not independently sufficient to be disabling or permanently and totally
disabling.
The Board presented the expert testimony of Dr. Steven Lomazow, an
expert in neurology. Dr. Lomazow testified that he found no objective
evidence of Merwin having a permanent and total neurological disability. His
examinations showed normal neurological functions, including motor function,
sensory function, coordination, and gait, as well as no significant deficits in
memory. Dr. Lomazow opined, however, that Merwin had an inability to
return to work due to psychological conditions that predated the fall and an
"adjustment disorder" that developed because of the fall. He also opined that
A-2368-19 5 the combination of her existing psychological conditions and the psychological
conditions that arose from the fall rendered Merwin permanently and totally
psychologically disabled from the performance of her regular duties. He did
not conduct any neuropsychological tests on Merwin before reaching this
opinion, which he based only on his review of the opinions of other doctors
who had examined Merwin as stated in medical records he reviewed.
Administrative Law Judge (ALJ) Elissa Mizzone Testa issued an initial
decision and recommendation that, although not entitled to accidental
disability retirement benefits, Merwin was permanently and totally disabled
from the performance of her job duties. The ALJ, relying on the opinion of
Dr. Lomazow, which she found to be the most credible offered at the hearing,
concluded that Merwin suffered post-concussive syndrome, mild cognitive
deficits, and headaches as a result of her fall. However, she concluded that
those neurological conditions alone did not render Merwin permanently and
totally disabled from performing her job duties. As a result, ALJ Testa
determined that Merwin was not entitled to accidental disability retirement
benefits because she did not establish that she had a permanent and total
disability directly caused by a traumatic event at work.
A-2368-19 6 However, ALJ Testa adopted Dr. Lomazow's opinion that Merwin was
permanently and totally disabled from performing the duties of her position as
the result of the combination of her preexisting psychological conditions,
including depression, anxiety, fibromyalgia, fatigue, and sleeping problems,
and the psychological injuries resulting from the fall. Thus, the ALJ
concluded, Merwin established she is entitled to ordinary disability retirement
benefits, which the ALJ recommended be granted by the Board.
The Board filed exceptions to the ALJ's initial decision and
recommendations. While the Board agreed with the ALJ's recommendation to
deny Merwin accidental disability retirement benefits, it argued that she erred
when she recommended awarding Merwin ordinary disability retirement
benefits. The Board argued that Dr. Lomazow's opinion regarding Merwin's
psychological conditions was outside the scope of his expertise and not based
on his neuropsychological testing or evaluation of Merwin. According to the
Board, Dr. Lomazow's opinion regarding Merwin's psychological conditions
was predicated solely on the opinions of other experts expressed in medical
A-2368-19 7 records, rendering Dr. Lomazow's opinion on the subject inadmissible and
unreliable.1
On January 16, 2020, the Board adopted ALJ Testa's finding that
Merwin was not permanently and totally disabled from the performance of her
job duties as a result of her fall and her recommendation to deny Merwin's
application for accidental disability retirement benefits. However, the Board
rejected the ALJ's finding that Merwin was permanently and totally disabled
due the combination of her preexisting psychological conditions and the
psychological conditions that arose because of the fall. As a result, the Board
rejected the ALJ's recommendation that Merwin be granted ordinary disability
retirement benefits.
The Board concluded that the testimony of Dr. Lomazow was not
sufficient to support the ALJ's finding that Merwin had a permanent and total
disability due to her psychological conditions because he was offered as an
expert only in the field of neurology and testified that he did not conduct
neuropsychological testing or evaluation of Merwin. In addition, the Board
noted that the doctor did not offer his opinion to a reasonable degree of
psychological certainty. While recognizing the relationship between neurology
1 Merwin did not file exceptions to the ALJ's recommendation to deny her application for accidental disability retirement benefits. A-2368-19 8 and psychology, the Board noted they are distinct medical fields and
concluded that "[t]o accept the testimony of a psychiatric disability" from a
doctor qualified as an expert only in neurology and who conducted no
neuropsychological tests on his patient "would be to ignore the dis tinction
between the two specialties."
In addition, the Board found that Dr. Lomazow's opinion that Merwin
had psychological conditions that lead to her permanent and total disability
was based only on his repetition of the written opinions of other doctors who
did not testify at the hearing. Thus, the Board concluded that Dr. Lomazow's
testimony regarding Merwin's psychological conditions was based on hearsay,
rendering his opinion inadmissible and unreliable.
This appeal followed. Merwin challenges the Board's decision to deny
her ordinary disability retirement benefits. She argues that the Board erred in
its rejection of the ALJ's conclusions regarding her permanent and total
psychological disability and erroneously applied the law when rejecting Dr.
Lomazow's opinion.
II.
Our review of decisions by administrative agencies is limited, with
petitioners carrying a substantial burden of persuasion. In re Stallworth, 208
A-2368-19 9 N.J. 182, 194 (2011). 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)). "[I]f substantial evidence supports the agency's decision, 'a court may
not substitute its own judgment for the agency's even though the court might
have reached a different result . . . .'" In re Carter, 191 N.J. 474, 483 (2007)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
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." Id. at
99.
We have carefully reviewed the record in light of the relevant legal
precedents and find ample support for the Board's denial of Merwin's
application for ordinary disability retirement benefits. A member of PERS is
A-2368-19 10 entitled to ordinary disability retirement benefits when the member "is
physically or mentally incapacitated for the performance of duty and should be
retired." N.J.S.A. 43:15A-42. "The applicant for ordinary 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." Bueno v.
Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super. 119, 126
(App. Div. 2008); see also Patterson v. Bd. of Trs., State Police Ret. Sys., 194
N.J. 29, 50-51 (2008).
Merwin argues she satisfied her burden because both Dr. Bereanu and
Dr. Lomazow opined she is permanently and totally disabled from performing
the regular duties of her positions. While it is true that both experts reached
that conclusion, they did so on different grounds. Dr. Bereanu opined that
Merwin's neurological conditions rendered her permanently and totally
disabled. The ALJ rejected that opinion. She instead found more credib le Dr.
Lomazow's testimony that Merwin's neurological conditions did not cause her
to be permanently and totally disabled. The ALJ adopted Dr. Lomazow's
separate opinion that the combination of Merwin's preexisting psychological
conditions and the psychological conditions that resulted from the fall rendered
A-2368-19 11 her permanently and totally disabled from her position. It was the credibility
of this opinion that was before the Board.
There is sufficient support in the record for the Board's determination
that Dr. Lomazow's opinion regarding Merwin's psychological conditions was
outside the scope of his expertise as a neurologist. Dr. Lomazow was not
qualified as an expert in psychology, a distinct scientific discipline. We
disagree with Merwin's argument that the Board drew too fine a line between
neurology and psychology and see nothing in the record suggesting that the
two sciences are interchangeable. An expert in one of those fields is not
necessarily an expert in the other.
More importantly, Dr. Lomazow conceded that he did not conduct any
neuropsychological tests or evaluations on Merwin. He, therefore, did not
base his opinion on his personal observations of Merwin's psychological
conditions. Dr. Lomazow instead relied on the opinions expressed by other
medical providers in records of Merwin's past treatment. While those medical
records may have been admitted as evidence, the expert opinions expressed
therein were not. Dr. Lomazow provided no explanation of why he believed
the opinions of these medical providers were credible, how those opinions
were reached, and what other evidence he relied on to conclude that Merwin
A-2368-19 12 was permanently and totally disabled due to psychological conditions. Nor did
he testify that it was common in his field to diagnose psychological conditions
merely by accepting the opinions of other providers in a patient's medical
records. See N.J.R.E. 703 (requiring expert opinions to be based on facts or
data derived from the expert's personal observations, evidence admitted at
trial, or data of the type normally relied on by experts in the field when
reaching such opinions); accord Polzo v. Cnty. of Essex, 196 N.J. 569, 583
(2008).2
We recognize Merwin's argument regarding the remedial nature of the
pension statutes and her suggestion that those statutes should be read liberally
to allow eligibility for benefits. However, as we have held, "although a person
eligible for benefits is entitled to a liberal interpretation of a pension statute,
'eligibility [itself] is not to be liberally permitted.'" In re Adoption of N.J.A.C.
17:1-6.4, 17:1-7.5 & 17:1-7.10, 454 N.J. Super. 386, 399 (App. Div. 2018)
(quoting Smith v. Dep't of Treasury, Div. of Pensions & Benefits, 390 N.J.
Super. 209, 213 (App. Div. 2007)). The Board's decision falls well within the
2 We note that the medical records completed by Dr. Carnevale, on which Dr. Lomazow relied, suggest that Merwin is not permanently and totally disabled by her psychological conditions because Dr. Carnevale determined that she could perform "light duty" work. A-2368-19 13 discretion accorded to it by statute when interpreting eligibility for ordinary
disability retirement benefits.
To the extent we have not specifically addressed any of Merwin's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2368-19 14