MIDALIA MARTINEZ VS. BOARD OF TRUSTEES (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 3, 2021
• Docket: A-4171-18
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4171-18

MIDALIA MARTINEZ,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

Argued July 13, 2021 – Decided August 3, 2021

Before Judges Hoffman and Currier.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. x-xxx062.

Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, LLC, attorneys; Samuel M. Gaylord, on the brief).

Amy Chung, Deputy Attorney General, argued the cause for respondent (Andrew J. Bruck, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Juliana C. DeAngelis, Deputy Attorney General, on the brief).

PER CURIAM

Before this court for a second time, we consider petitioner's appeal from

the January 10, 2019 order of the Board of Trustees, Public Employees'

Retirement System (Board), denying her application for ordinary disability

retirement benefits (application). On remand, the Board complied with our

instructions and addressed our concerns with its first denial order. Because we

conclude the Board's decision was supported by the credible evidence and was

neither arbitrary nor capricious, we affirm.

As we set forth the relevant facts in our prior decision, we need not repeat

them extensively here. See Martinez v. Bd. of Trs., Pub. Employees' Ret. Sys.,

No. A-0049-17 (App. Div. Sept. 5, 2018).

Petitioner developed a mild head tremor in 2008. She underwent a

neurological evaluation in 2010, following which the doctor "observed a 'very

mild horizontal head tremor' and a '[v]ery minimal tremor of the legs . . . .'" Id.

at 1 (alterations in original). In 2013, the same doctor reported "petitioner's head

tremor was 'gradually getting worse and she has a lot of anxiety at work as she

is conscious of her tremor.'" Ibid.

A-4171-18 2 Shortly thereafter, the Board requested an evaluation with Dr. Steven

Lomazow, M.D. In his report, Dr. Lomazow noted "petitioner's tremor 'has been

going on for a number of years'; although she continued to work, petitioner

stated 'her tremor is inhibiting her ability to type, file and do other things that

are required on her job.'" Ibid. Dr. Lomazow described petitioner's condition

as "a fine head tremor and a small degree of bilateral upper extremity tremor,

both postural." Ibid. He concluded "petitioner 'has a mild essential tremor

which has not been treated with an adequate clinical trial of medication.'" Ibid.

He further "opined that petitioner 'does not have neurological disease which

rises to the level of totally and permanently disabled.'" Ibid.

In June 2013, petitioner left her employment and relocated to Florida in

August. On August 21, 2013, the Board denied petitioner's application, finding

she was "not totally and permanently disabled from the performance of [her]

regular and assigned duties pursuant to N.J.S.A. 43:15A-42 and relevant case

law." Id. at 2 (alteration in original). After petitioner appealed, the Board

transferred the matter to the Office of Administrative Law for a hearing.

In January 2014, petitioner was examined by a neurologist who diagnosed

her with Parkinson's disease. The doctor found petitioner to be "totally disabled"

and unable to work. Ibid.

A-4171-18 3 Because neither petitioner's treating neurologist nor Dr. Lomazow

diagnosed her with Parkinson's disease, Dr. Lomazow requested a reevaluation

of petitioner, in light of the differing diagnosis offered by petitioner's most

recent neurologist. In October 2014, he issued a supplemental report, stating he

"'still see[s] minimal evidence on neurological evaluation' of Parkinson's

disease." Ibid. (alterations in original). Dr. Lomazow reasserted that petitioner

was "not totally and permanently disabled from a neurological standpoint."

Following a hearing, the ALJ concluded he could not "'find that in January

2014 petitioner's condition resulted in her inability to perform her job duties, or

that the employer did not attempt to accommodate her needs.'" Id. at 4. The

ALJ provided his reasons for rejecting petitioner's doctors' opinions.

However, the ALJ questioned whether the Board used the correct standard

in its initial denial of the application. The Board and Dr. Lomazow stated

petitioner was not "totally and permanently disabled." The ALJ noted N.J.S.A.

43:15A-42 required a petitioner to demonstrate she was "physically or mentally

incapacitated for the performance of duty." 1

1 We note that, effective June 20, 2016, N.J.A.C. 17:1-6.4 now requires all disability retirements to satisfy the "total and permanent disability" standard. A-4171-18 4 In July 2017, the Board issued a final agency decision adopting the ALJ's

initial decision recommending the denial of petitioner's application. The Board

did not address the issues raised by the ALJ. After an appeal to this court, we

remanded to the Board to consider: (1) whether it applied the correct standard;

(2) whether Dr. Lomazow addressed that standard; and (3) whether Dr.

Lomazow considered petitioner's other medical issues.

On January 10, 2019, the Board issued a final agency decision, again

denying petitioner's application. The Board found that petitioner was "not

totally and permanently disabled from performing her regular and assigned

duties and therefore is also not physically or mentally incapacitated."

In the present appeal, petitioner asserts she established she was physically

or mentally incapacitated from performing her job duties and therefore she

qualified for ordinary disability retirement benefits.

The standard of review applicable to an appeal from a state agency

decision is well established. "Judicial review of an agency's final decision is

generally limited to a determination of whether the decision is arbitrary,

capricious, or unreasonable or lacks fair support in the record." Caminiti v. Bd.

of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013)

(citing Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223-

A-4171-18 5 24 (2009)). In reviewing an administrative decision, we ordinarily recognize

the agency's expertise in its particular field. Ibid. The party who challenges the

validity of the administrative decision bears the burden of showing that it was

"arbitrary, unreasonable or capricious." Boyle v. Riti, 175 N.J. Super. 158, 166

(App. Div. 1980).

To qualify for ordinary disability retirement benefits under N.J.S.A.

43:15A-42, a member must demonstrate he or she "is physically or mentally

incapacitated for the performance of duty and should be retired." The member

must prove he or she has a disabling condition and must provide expert evidence

to sustain the burden. Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund,

404 N.J. Super. 119, 126 (App. Div. 2008).

In its order denying the application for a second time, the Board addressed

this court's concerns. The Board noted initially that the standards "total and

permanent disability" and "physically and mentally incapacitated" have been

used interchangeably by our Supreme Court. See Patterson v. Bd. of Trs, State

Police Ret. Sys., 194 N.J. 29, 42 (2008) (finding the only meaningful distinction

between the two standards is that an ordinary disability applicant does not need

to show a work connection). Therefore, the use by the Board and Dr. Lomazow

A-4171-18 6 of "total and permanent disability" satisfied the case law's statutory

interpretation.

In its decision issued after remand, the Board also considered the

additional grounds outlined by this court. In her brief, petitioner did not contest

the Board's conclusions on any bases other than the Board erred in its application

of the proper standard. We are satisfied the Board sufficiently followed our

remand instructions. Its decision was not arbitrary or capricious and is

supported by the credible evidence in the record.

Affirmed.

A-4171-18 7