NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2658-18
J.M.F.,
Petitioner-Appellant,
v.
DEPARTMENT OF TREASURY, DIVISION OF PENSIONS AND BENEFITS,
Respondent-Respondent. _____________________________
Submitted September 15, 2021 – Decided September 28, 2021
Before Judges Geiger and Susswein.
On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, Department of the Treasury.
J.M.F., appellant pro se.
Andrew J. Buck, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Connor V. Martin, Deputy Attorney General, on the brief).
PER CURIAM Appellant J.M.F.,1 a former teacher, appeals from an October 17, 2018
final decision of respondent Board of Trustees (the Board) of the Teachers'
Pension and Annuity Fund (TPAF), within the Department of the Treasury,
Division of Pensions and Benefits, denying her application for accidental
disability retirement benefits pursuant to N.J.S.A. 18A:66-39(c). She also
appeals from a January 24, 2019 TPAF final decision denying her request to
unseal the administrative record. We affirm both decisions.
We glean the following pertinent facts from the record, some of which are
not in dispute.2 On November 24, 2012, appellant applied for an accidental
disability retirement effective December 1, 2012. Her last day of work was
March 26, 2012. In her application, appellant claimed that on September 8,
2010, as she was looking at books in a crate on the floor in her classroom , a
custodian, who was behind her, lifted a bucket causing a metal mop handle to
fall out of the bucket and strike the top right side of her head. Appellant claimed
she experienced "a host of post-concussive symptoms . . . on a daily basis with
1 As the court affirms the sealing of the administrative record, we use initials for the appellant. We conclude that, under the under the particular set of facts and circumstances in this matter, appellant's privacy constitutes a compelling interest that outweighs the Judiciary's commitment to transparency. 2 A Joint Stipulation of Facts is not part of the record on appeal. A-2658-18 2 enough frequency and intensity" to prevent her from performing her job as a
teacher. She alleged that she needed to stay at home to minimize both her
suffering and the possibility of being hit again in the head.
On April 4, 2013, the Board denied appellant's application for accidental
disability retirement benefits. The Board found that the event that caused
appellant's reported disability: (a) was "identifiable as to time and place"; (b)
"undesigned and unexpected"; (c) "occurred during and as a result of
[appellant's] regular or assigned duties"; and (d) was "not the result of
[appellant's] willful negligence." The Board concluded appellant was "not
totally and permanently disabled from the performance of [her] regular and
assigned job duties" and "not physically or mentally incapacitated from the
performance of [her] usual or other duties that [her] employer [was] willing to
offer." The Board further determined that "there is no evidence in the record of
direct causation of a total and permanent disability." Appellant remained
eligible to begin collecting monthly ordinary retirement benefits after she
reached normal retirement age as designated in the pension system. Appellant
was advised that she could appeal the Board's decision within forty-five days,
or the decision would be final.
A-2658-18 3 By letter dated June 18, 2013, and email dated June 26, 2013, appellant
submitted additional medical documentation in support of her application. On
July 12, 2013, the Board directed that its independent medical examiner (IME),
neuropsychologist Richard A. Filippone, Ph.D., be provided with the additional
documentation and requested that he provide an addendum to his January 30,
2013 report "to determine if the new information alters his opinion." Appellant
was informed that upon receipt of the addendum and the recommendation of the
Medical Review Board (MRB), the Board would issue its final determination.
On October 4, 2013, the Board reconsidered appellant's application after
considering the new medical documentation she provided, the previous reports,
the IME report addendum, and the recommendations of the MRB. The Board
reaffirmed its prior decision denying the application.
On November 13, 2013, appellant appealed the Board's decision, and the
matter was transferred to the Office of Administrative Law (OAL) for
determination as a contested case and assigned to an Administrative Law Judge
(ALJ). The ALJ conducted hearings on August 8, 2017 and December 22, 2017,
and closed the record on March 29, 2018, following the submission of briefs.
Appellant was represented by counsel before the ALJ. Three witnesses testified:
appellant, Dr. Hugo M. Morales, and Dr. Filippone.
A-2658-18 4 The ALJ issued a comprehensive twenty-three-page initial decision,
which summarized the testimony of each witness, set forth his factual and
credibility findings, and applied the applicable law. Because the decision rested
on whether appellant met her burden of proof given the conflicting testimony,
we recount the pertinent testimony and the ALJ's findings in some detail.
Appellant's Testimony
Appellant began teaching in 2001. On September 8, 2010, while at work,
she was struck on the top right side of the head by a mop handle. She did not
lose consciousness. About thirty minutes later, appellant started to get a
headache. Following a faculty meeting, she went to see the school nurse, who
referred her to the workers' compensation clinic. Although appellant wanted to
have testing done, the doctor declined and advised her to go the emergency room
if the symptoms got worse. The doctor prescribed ibuprofen.
About ten days later, appellant went to Concentra Medical Center
complaining her symptoms had worsened. The doctor told her she could not
have a headache from a blow to the head that long after the accident and said he
would refer her to a neurologist. When the referral did not materialize, appellant
saw Dr. Jose Soto Perillo, a psychiatrist, twice in 2011.
A-2658-18 5 Appellant had pre-existing conditions. Beginning in 2007, appellant
began to have problems with allergies that caused sinus headaches, anxiety, and
a choking sensation. She also experienced depression and anxiety due to a
disagreement with her supervisor.
After the accident, appellant continued to work with difficulty but reacted
to noise at school. She stated she knew something was wrong with her brain
and that her brain felt "broken." Her own physician sent her for a CT scan and
MRI, which were both normal. Appellant stated she had crying spells, difficulty
concentrating, and felt pressure on the top right side of her head that was
triggered by noise.
While still working, appellant took leaves as long as three months.
Appellant frequently experienced nightmares about getting hit in the head after
the accident. While she had difficulty sleeping prior to the accident, her
insomnia became more severe. Appellant stated she was unable to perform her
duties as a teacher or hold any other job. She claimed she felt pressure in her
head and that she could not stop crying.
Appellant saw her other psychiatrist, Dr. Morales, and her clinical
neuropsychologist, Sandra L. Hunt, Ph.D., once or twice a year, either in person,
A-2658-18 6 by Skype, or telephone. She stopped taking all medication with the approval of
her doctors.
Appellant continued to work for approximately eighteen months after the
accident. She claimed she had not driven a car since the accident but is able to
run errands, cook, and clean.
Dr. Morales' Testimony
Dr. Morales was accepted as an expert in psychiatry. He began treating
appellant in March 2012 and she was still under his care as of 2017. Dr. Morales
opined that appellant's complaints indicated she was suffering from post-
traumatic stress disorder (PTSD) and mild traumatic brain injury. He reported
that Dr. Hunt and Dr. Martinez, a neurologist, agreed with those diagnoses and
that appellant was unable to work as a teacher.
Dr. Morales noted that during waking hours, a person with PTSD may be
hyper vigilant or be hypersensitive to all noise. They may also experience
nightmares and insomnia.
Dr. Morales noted that appellant wore a bicycle helmet to his office to
protect her head. She exhibited serious anxiety about walking near tall building s
or through a supermarket with tall shelves. He considered these symptoms to
be characteristic of PTSD.
A-2658-18 7 In November 2012, Dr. Morales diagnosed appellant with PTSD, major
depressive disorder, anxiety, and traumatic brain injury and opined these
conditions resulted from the accident. Appellant was prescribed Silenor for
insomnia, Wellbutrin for anxiety and depression, and Naproxen for headaches.
Dr. Morales further opined that the PTSD led to functional disabilities that
limited appellant's daily activities and caused difficulty with social events and
gatherings, because she was fearful that any movement would aggravate her
physical condition. He described appellant as lacking concentration and focus,
unable to finish anything she started, and obsessed with being hit on the head
again, rendering her unable to function properly on any level. He stated that
appellant needed a quiet, dark place to rest her brain. He described appellant's
mental state as being very fragile and dysfunctional, with an inability to control
her emotions. She appeared anxious, moody, and depressed.
Appellant was seen by a neuroradiologist, Michael L. Lipton, M.D., who
interpreted her MRI films. He found structural damage to her brain's white
matter in the area she was struck. Dr. Lipton reported that most patients with
mild traumatic brain injury do not experience unconsciousness and recover
within months. However, a minority have symptoms and dysfunction that
persist indefinitely.
A-2658-18 8 Dr. Morales noted that a person can suffer a concussion without
developing a brain lesion or experiencing loss of consciousness. He rejected Dr.
Filippone's conclusion that appellant had a histrionic personality and could not
have PTSD unless she experienced life-threatening trauma. He further opined
that appellant did not have agoraphobia.3
On cross-examination, Dr. Morales acknowledged that ninety percent of
the information is subjective, and appellant's self-reported complaints are all
subjective in nature. Appellant was treated for anxiety, panic attacks, and
problems sleeping before the accident.
In addition, appellant had two MRIs. The first was normal. The second
showed microscopic lesions of the white matter on the right side of the brain.
The MRI report describes this as "[w]hite matter abnormalities with sequelae of
traumatic brain injury." Dr. Morales acknowledged there were other possible
causes of such lesions.
Dr. Morales explained that a concussion can take weeks or months to
develop symptomatology, such as soft tissue swelling or tenderness. It can also
3 Agoraphobia is an anxiety disorder characterized by a marked fear, anxiety, or avoidance of public places, often perceived as being too open, enclosed, crowded, or dangerous. Diagnostic and Statistical Manual of Mental Disorders 217-19 (5th ed. 2013). A-2658-18 9 take weeks or months for the psychopathology to become clinical. When asked
whether he would expect someone with no swelling, no tenderness, no cuts, no
scrapes, and no contusions at the time of the accident to have pain in the scalp
four years later, Dr. Morales stated that it could happen.
On redirect, Dr. Morales stated the accident was a substantial cause of
appellant's disability and that she did not have PTSD before the accident.
Dr. Filippone's Testimony
Dr. Filippone was accepted as an expert in neuropsychology and
psychology. He prepared a January 30, 2013 report and three addenda.
As to appellant's credibility, Dr. Filippone found many of her claims
related to her cognitive status were untrue. Although she claimed she cannot
think, concentrate, or remember, neuropsychological testing performed by Dr.
Hunt showed appellant's results were almost entirely in the average to superior
range. Although appellant claimed she could not function, do anything, or teach,
she continued to work as a teacher for eighteen months after the accident.
Dr. Filippone found appellant had significant anxiety or histrionic
behaviors. She came to his office wearing a bicycle helmet, explaining that she
did so for safety because people throw things out of windows and she did not
A-2658-18 10 want another severe traumatic brain injury. Appellant made religious references
throughout the evaluation.
Dr. Filippone opined that appellant did not even suffer a concussion. He
concluded that appellant exaggerated her symptoms. He noted appellant had no
bruise, bump, or laceration from the accident. Initially, her only complaints
were headaches, which are subjective. He viewed appellant's behavior during
Dr. Hunt's evaluation, which included sobbing, as very exaggerated some two
years after the accident. He noted that appellant scored in the average to superior
range on most aspects of the test and that several low scores did not demonstrate
functional behavioral problems. Her full-scale IQ and working memory index
were both in the average range. Her processing speed was at the top of the low
average range.
Dr. Filippone found appellant had pre-existing conditions including panic
disorder with mild agoraphobia, vocationally oriented stress, and chronic sleep
disorder. He noted that she may have generalized anxiety disorder,
undifferentiated somatoform disorder, and personality disorder with histrionic
features. Dr. Filippone opined that none of appellant's symptoms were directly
related to the accident. He disputed the diagnosis of post-concussive syndrome
A-2658-18 11 because there was no mechanism of injury, and the pattern of symptoms was
inconsistent with that diagnosis but consistent with her other diagnoses.
Dr. Filippone also disputed the diagnosis of mild traumatic brain injury,
noting that the first MRI showed no evidence of brain injury and the white matter
abnormalities disclosed by the second MRI were not in an area that would affect
cognition. He concluded that appellant was not permanently and totally disabled
from performing the duties of a teacher.
On cross-examination, Dr. Filippone acknowledged that a person could
have mild traumatic brain injury without losing consciousness, having bleeding
on the brain, abnormal diagnostic tests, or gross signs of physical damage. He
further acknowledged that a mild traumatic brain injury can affect a person's
cognitive, emotional, behavioral abilities, and personality functioning. In
addition, the symptoms of traumatic brain injury are largely subjective;
headaches are a symptom of post-concussive syndrome, and dizziness, anxiety,
and memory loss can also be symptoms of post-concussive syndrome.
On redirect, Dr. Filippone opined that appellant exhibited the behavior of
a person who is exaggerating her symptoms and described appellant's
presentation as the most exaggerated, histrionic, and incredible he ever heard.
A-2658-18 12 The ALJ's Analysis of the Evidence
The ALJ found Dr. Filippone's opinion that appellant did not suffer a mild
traumatic brain injury was not persuasive and his conclusion that there was no
mechanism of injury was inaccurate. The ALJ noted "Dr. Hunt described the
object that struck [appellant] as a heavy mop handle, and [appellant] said that it
was solid metal." The ALJ concluded that "[a]n institutional-type mop can have
a heavy metal handle that could readily cause an injury[,]" and did not accept
"Dr. Filippone's assertion that there was no mechanism of injury . . . ."
The ALJ recounted that Dr. Filippone acknowledged that that a person
suffering a mild traumatic brain injury does not necessarily lose consciousness
or have external injuries. In addition, the second MRI was more detailed. The
fact that appellant's psychological testing showed that her cognitive functioning
was intact did not mean she did not sustain a mild brain injury. The ALJ further
noted that Dr. Morales' opinion was supported by the reports of Dr. Hunt an d
Dr. Lipton. The ALJ found that appellant suffered a mild traumatic brain injury
from the September 8, 2010 accident.
The ALJ next considered whether appellant exaggerated her symptoms.
He concluded that "[a]ll of [appellant's] complaints related to her physical,
cognitive, and emotional condition [were] subjective in nature . . . and not
A-2658-18 13 subject to verification by objective means. Nonetheless, [appellant's]
complaints of cognitive impairment . . . can be compared to the results of the
psychological testing." The test results showed appellant's cognitive
functioning was "in the average to superior range in most areas." The ALJ
concluded that appellant "exaggerated her symptoms in regard to cognitive
functioning." He found appellant's complaints regarding physical and emotional
functioning were not credible.
The ALJ found appellant did not satisfy the requirements for accidental
disability retirement benefits. He explained that while appellant had suffered a
mild traumatic brain injury,
Dr. Lipton noted in his report, most patients who suffer a mild traumatic brain injury recover over a period of time. While some patients with mild traumatic brain injury have symptoms that persist indefinitely, [appellant] has not presented credible evidence that she falls into this category. It follows that [appellant] has not established that she is permanently and totally disabled as a result of mild traumatic brain injury. Under the circumstances, I [conclude] that [appellant] has failed to prove by a preponderance of the believable evidence that she is permanently, and totally disabled. In view of this conclusion, it is unnecessary to reach the issue of direct result.
Despite being granted an extension to do so, appellant did not file any
exceptions to the ALJ's initial decision. On October 17, 2018, the Board issued
A-2658-18 14 a revised final administrative decision adopting the ALJ's initial decision which
affirmed the Board's determination denying appellant's application for
accidental disability retirement benefits. Appellant was advised that she had
forty-five days to appeal the decision.
Thereafter, appellant's unopposed request to seal the record was granted
by the Board. Appellant subsequently requested that the record be unsealed.
The Board declined to do so.
This appeal followed. Appellant filed her initial notice of appeal on
February 25, 2019, some 131 days after the Board rendered its final decision.
Appellant raises the following points for our consideration:
POINT I
THE BOARD'S DECISION TO DENY [APPELLANT ACCIDENTAL DISABILITY RETIREMENT BENEFITS] WAS ARBITRARY AND CAPRICIOUS, UNSUPPORTED BY SUBSTANTIAL EVIDENCE.
POINT II
[THE] ALJ . . . MADE AN ERROR THAT LED HIM TO DENY [APPELLANT'S ACCIDENTAL] DISABILITY [RETIREMENT BENEFITS].
POINT III
THE SEALING OF [THE] RECORD ROBBED [APPELLANT] OF [HER] RIGHT TO DISCUSS [HER] PENSION CASE.
A-2658-18 15 We are guided by the following well-established principles. "Our review
of administrative agency action is limited." Russo v. Bd. of Trs., Police &
Fireman's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19,
27 (2007)). The agency's decision should be upheld "unless there is a clear
showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record." Ibid. (quoting Herrmann, 192 N.J. at 27-28). "The
burden of demonstrating that the agency's action was arbitrary, capricious or
unreasonable rests upon the [party] challenging the administrative action." In
re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006) (citations omitted).
"[A]gencies have 'expertise and superior knowledge . . . in their
specialized fields.'" Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198
N.J. 215, 223 (2009) (alteration in original) (quoting In re License Issued to
Zahl, 186 N.J. 341, 353 (2006)). We therefore accord deference to the "agency's
interpretation of a statute" it is charged with enforcing. Thompson v. Bd. of
Trs., Teachers' Pension & Annuity Fund, 449 N.J. Super. 478, 483 (App. Div.
2017) (quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J.
189, 196 (2007)), aff'd o.b., 233 N.J. 232 (2018). "'Such deference has been
specifically extended to state agencies that administer pension statutes,' because
'a state agency brings experience and specialized knowledge to its task of
A-2658-18 16 administering and regulating a legislative enactment within its field of
expertise.'" Id. at 483 (quoting Piatt v. Police & Firemen’s Ret. Sys., 443 N.J.
Super. 80, 99 (App. Div. 2015)).
The factual "findings of an ALJ 'are considered binding on appeal, when
supported by adequate, substantial and credible evidence.'" Oceanside Charter
Sch. v. Dep't of Educ., 418 N.J. Super. 1, 9 (App. Div. 2011) (quoting In re
Taylor, 158 N.J. 644, 656 (1999)). "The choice of accepting or rejecting
testimony of witnesses rests with the administrative agency, and where such
choice is reasonably made, it is conclusive on appeal." Ibid. (quoting In re
Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976)). Deference is
"especially appropriate when the evidence is largely testimonial and involves
questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)).
"A reviewing court 'may not substitute its own judgment for the agency's,
even though the court might have reached a different result.'" In re Stallworth,
208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). "This
is particularly true when the issue under review is directed to the agency's
special 'expertise and superior knowledge of a particular field.'" Id. at 195
(quoting Herrmann, 192 N.J. at 28).
A-2658-18 17 That said, when the facts are undisputed, whether an injury occurred
"'during and as a result of the performance of regular or assigned duties' is a
legal question of statutory interpretation, which we review de novo." Bowser v.
Bd. of Trs., Police & Firemen’s Ret. Sys., 455 N.J. Super. 165, 170-71 (App.
Div. 2018). Conversely, when controlling facts are disputed, we afford
deference to the Board's factual findings. Oceanside Charter Sch., 418 N.J.
Super. at 9.
Like all public retirement systems, the TPAF provides for both ordinary
and accidental retirement benefits. N.J.S.A. 18A:66-39. The principal
difference between ordinary and accidental disability retirement "is that
ordinary disability retirement need not have a work connection." Patterson v.
Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 42 (2008). A TPAF member
may be retired on an accidental disability pension if the employee is
"permanently and totally disabled as a direct result of a traumatic event
occurring during and as a result of the performance of his regular or assigned
duties . . . ." N.J.S.A. 18A:66-39(c); accord Kasper v. Bd. of Trs., Teachers'
Pension & Annuity Fund, 164 N.J. 564, 573 (2000). Appellant must demonstrate
the accident "constitutes the essential significant or the substantial contributing
A-2658-18 18 cause of the resultant disability." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys.,
83 N.J.174, 188 (1980).
With these principles in mind, we consider whether the Board's decision
was arbitrary, capricious, unreasonable, or unsupported by substantial credible
evidence in the record.
We first note that an ALJ's factual findings of lay-witness credibility
generally receive deference. See N.J.S.A. 52:14B-10(c) ("The [Board] may not
reject or modify any findings of fact as to issues of credibility of la y witness
testimony unless . . . the findings are arbitrary, capricious or unreasonable or are
not supported by sufficient, competent, and credible evidence in the record.").
In considering that evidence, we "give 'due regard to the opportunity of the one
who heard the witnesses to judge of their credibility . . . .'" Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Close v. Kordulak Bros., 44 N.J.
589, 599 (1965)). "[I]t is not for us or the agency head to disturb that credibility
determination, made after due consideration of the witnesses' testimony and
demeanor during the hearing." H.K. v. State, Dep't Hum. Servs., 184 N.J. 367,
384 (2005). Our deference to an ALJ's findings "extends to credibility
determinations that are not explicitly enunciated if the record as a whole makes
A-2658-18 19 these findings clear." In re Snellbaker, 414 N.J. Super. 26, 36 (App. Div. 2010)
(citations omitted).
Generally, "where the medical testimony is in conflict, greater weight
should be accorded to the testimony of the treating physician" as opposed to an
evaluating physician who has examined the employee on only one occasion.
Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171-72 (App. Div. 1955);
accord Mernick v. Div. of Motor Vehicles, 328 N.J. Super. 512, 522 (App. Div.
2000). "Nevertheless, expert testimony need not be given greater weight than
other evidence nor more weight than it would otherwise deserve in light of
common sense and experience." Torres v. Schripps, Inc., 342 N.J. Super. 419,
430 (App. Div. 2001) (citing In re Yaccarino, 117 N.J. 175, 196 (1989)).
Accordingly, "[t]he factfinder may accept some of the expert's testimony and
reject the rest." Id. at 430 (citing Todd v. Sheridan, 268 N.J. Super. 387, 401
(App. Div. 1993)). Moreover, "a factfinder is not bound to accept the testimony
of an expert witness, even if it is unrebutted by any other evidence." Id. at 431
(citing Johnson v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429, 438 (App.
Div. 1997)). "Indeed, a judge is not obligated to accept an expert's opinion, even
if the expert was 'impressive.'" State v. M.J.K., 369 N.J. Super. 532, 549 (App.
A-2658-18 20 Div. 2004) (quoting State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div.
1993)).
The factfinder determines the weight accorded to expert testimony.
LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 165
(App. Div. 2001). The factfinder is free "accept some of the expert's testimony
and reject the rest." M.J.K., 369 N.J. Super. at 549; see also In re Civ.
Commitment of R.F., 217 N.J. 152, 174-77 (2014).
"[T]he weight to which an expert opinion is entitled can rise no higher
than the facts and reasoning upon which that opinion is predicated." State v.
Jenewicz, 193 N.J. 440, 466 (2008) (quoting Johnson v. Salem Corp., 97 N.J.
78, 91 (1984)). "This is particularly true when, as here, the factfinder is
confronted with directly divergent opinions expressed by the experts." M.J.K.,
369 N.J. Super. at 549. The weight given to expert testimony also depends on
whether the expert's "conclusions are based largely on the subjective complaints
of the patient . . . ." Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86
(App. Div. 1961).
The factfinder, rather than a reviewing court, "is better positioned to
evaluate the witness' credibility, qualifications, and the weight to be accorded
her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (citing
A-2658-18 21 Bonnco, 115 N.J. at 607). Ultimately, "[t]he choice of accepting or rejecting
testimony of witnesses rests with the administrative agency, and where such
choice is reasonably made, it is conclusive on appeal." Oceanside Charter Sch.,
418 N.J. Super. at 9 (quoting Howard Sav. Bank, 143 N.J. Super. at 9).
Deference is "especially appropriate when the evidence is largely testimonial
and involves questions of credibility." J.W.D., 149 N.J. at 117. Here, the
evidence largely consisted of conflicting expert testimony and appellant's
subjective symptoms, which required the factfinder to determine the credibility
of the witnesses and the weight to accord to their testimony.
Our careful review of the record reveals that the ALJ's findings and
conclusions, which the Board adopted, are supported by substantial credible
evidence in the record and that the Board's decision was not arbitrary,
capricious, or unreasonable. Accordingly, we discern no basis to overturn the
Board's determination that appellant was ineligible for accidental disability
retirement benefits. See In re Young, 202 N.J. 50, 71 (2010) (upholding an
agency decision where substantial credible evidence in the record supported the
agency's findings.).
Appellant's remaining arguments lack sufficient merit to warrant extended
discussion in this opinion. R. 2:11-3(e)(1)(E). Appeals from final decisions of
A-2658-18 22 state administrative agencies must be filed "within [forty-five] days from the
date of service of the decision or notice of the action taken." R. 2:4-1(b). The
request to seal the record and order granting same did not extend the forty-five-
day period to file this appeal from the Board's final decision denying her
application for accidental disability retirement benefits. Appellant did not move
to file the appeal as within time. Thus, her appeal was untimely and was
vulnerable to dismissal on that basis. We have nevertheless addressed the merits
of her appeal as the Board did not move to dismiss the appeal as untimely.
Appellant argues that sealing the administrative record deprives her of her
First Amendment right to discuss her pension case. We reiterate that appellant
initially requested that the administrative record be sealed. The sealing order, it
bears noting, prevents public disclosure of the evidence in the record to protect
appellant's privacy interests. It does not preclude her from discussing the case.
The administrative record is replete with testimony and reports discussing
appellant's psychiatric symptoms and diagnoses, neuropsychological test
results, and related facts. N.J.A.C. 1:1-14.1(b) recognizes "the need to . . .
protect parties and witnesses from undue embarrassment or deprivation of
privacy . . . ." We discern no abuse of discretion by the ALJ or the Board.
A-2658-18 23 Affirmed.
A-2658-18 24