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

• Court: New Jersey Superior Court Appellate Division
• Decided: September 5, 2018
• Docket: A-0049-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0049-17T3

MIDALIA MARTINEZ,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIRMENT SYSTEM,

Respondent-Respondent. _______________________________

Argued August 8, 2018 – Decided September 5, 2018

Before Judges Hoffman and Currier.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 2-891062.

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

Juliana C. DeAngelis, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Cella, Deputy Attorney General, on the brief).

PER CURIAM Petitioner Midalia Martinez appeals from the July 20, 2017

order of the Board of Trustees, Public Employees Retirement System

(Board), denying her application for ordinary disability

retirement benefits (ODRB). The Board adopted the initial decision

of the Administrative Law Judge (ALJ), who found petitioner failed

to establish "her inability to perform her job duties." At the

end of his decision, the ALJ posed the following two-part question

for the Board to answer in its final decision: "Did the Board's

use of the 'totally and permanently disabled' standard and/or the

Board's early denial of ODRB, i.e., as of August 21, 2013, not on

or about January 1, 2014, inappropriately deprive petitioner of

rights?" Inexplicably, the Board adopted the ALJ's decision as

its final determination in a single sentence, and failed to address

either question the ALJ posed. Because the Board did not identify

the standard it applied in determining petitioner's ODRB

eligibility, or the date used to assess petitioner's application,

we reverse the Board's decision and remand for the Board to address

those issues.

I

The Camden Board of Education employed petitioner for

approximately twenty-four years, until she retired on January 1,

2014. Petitioner testified the essential duties of her clerk

2 A-0049-17T3 position involved data entry and typing, handwriting reports,

filing, and speaking with children's parents.

Around 2008, petitioner developed a mild head tremor. In

2010, petitioner's doctor referred her to John Yang, M.D. for a

neurological evaluation. Dr. Yang observed a "very mild horizontal

head tremor" and a "[v]ery minimal tremor of the legs . . . ." At

that point, his impression was petitioner had a "benign essential

tremor," and he recommended she undergo testing.1 Dr. Yang

attempted to treat petitioner's essential tremor with two

medications — Inderal and Mysoline; however, Inderal "caused

slowed heart rate and blood pressure" and Mysoline left petitioner

unable "to function for two days." On March 19, 2013, Dr. Yang

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." A "[m]otor exam revealed tremor of both hands, slightly

interfering with handwriting." In addition to "essential tremor,"

Dr. Yang diagnosed petitioner with anxiety, and prescribed her

Xanax.

On June 28, 2013, petitioner underwent an examination by Dr.

Steven Lomazow, M.D., a neurologist designated by the Board. In

his report, Dr. Lomazow noted petitioner's tremor "has been going

1 The record does not indicate if petitioner underwent this testing.

3 A-0049-17T3 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." On

examination, Dr. Lomazow noted "a fine head tremor and a small

degree of bilateral upper extremity tremor, both postural." Dr.

Lomazow concluded petitioner "has a mild essential tremor which

has not been treated with an adequate clinical trial of

medication." He further opined that petitioner "does not have

neurological disease which rises to the level of totally and

permanently disabled."

On August 21, 2013, the Board denied petitioner's ODRB

application, determining 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." Petitioner

appealed, and the Board transferred the matter to the Office of

Administrative Law for a hearing.

On January 31, 2014, Amy Colcher, M.D. of Cooper Neurological

Institute,2 examined petitioner. Dr. Colcher diagnosed petitioner

2 The record indicates that Dr. Yang left his group, Neurological Regional Associates, and consequently, petitioner began treating with Dr. Colcher at Cooper Neurological Institute.

4 A-0049-17T3 with Parkinson's disease3 and concluded, "She cannot go back to

work. Parkinson's disease is an unpredictable disease. It is

progressive. She cannot do her job. She cannot talk to people,

she cannot type or write, and she has a great deal of difficulty

with dexterity. She is totally disabled."

By August 2013, petitioner had stopped working and relocated

to Florida; in March 2014, she began both physical and speech

therapy at Fossit Therapy Services (FTS). FTS measured

petitioner's degree of limitation using physical functional status

primary measure (PFSPM). At intake, petitioner's PFSPM was sixty,

indicating she was sixty percent functional with a forty percent

limitation. Although FTS anticipated at least an eight-point

increase, petitioner's PFSPM score showed no change by September

2014. FTS also noted several speech related limitations. In

October 2014, petitioner came under the care of another

neurologist, Bhupinder Magnat, M.D., who reported petitioner "has

features of Parkinson['s] disease."

After learning of Dr. Colcher's conflicting diagnosis, Dr.

Lomazow made a request to reevaluate petitioner because his

3 No specific test exists to diagnose Parkinson's disease. A diagnosis is made based on medical history, a review of signs and symptoms, and a neurological and physical examination. See e.g., Diagnosing Parkinson's, American Parkinson Disease Association, https://www.apdaparkinson.org/what-is-parkinsons/diagnosing (last visited Aug. 27, 2018).

5 A-0049-17T3 "opinion and Dr. Colcher's appear to be quite discordant." On

October 1, 2014, Dr. Lomazow performed the reevaluation, and issued

a supplemental report, stating he "still see[s] minimal evidence

on neurological evaluation" of Parkinson's disease.

On September 12, 2016, the ALJ conducted a hearing and heard

testimony from petitioner; Dr. Anca Bereanu, M.D., a board-

certified clinical neurologist, who conducted an independent

medical examination of petitioner; and Dr. Lomazow. Petitioner

testified her primary duties at work included typing and writing

and that, except for lunchtime, she spent her entire day on the

computer. She asserted the tremors made it increasingly difficult

for her to type and write, remarking that "one job that I could

have done in five minutes, I was doing it in a whole day." She

also testified her head tremors made it difficult to interact with

parents, describing situations when parents came in to speak to

her and grew frustrated after they assumed she was already shaking

her head "no" to questions they had not yet posed. When asked

whether she had alerted her superiors to her condition, petitioner

responded she had, and the principal had told her, "Just do what

you can do, and we'll see what happens."

Petitioner answered several questions about whether she had

tried medication to alleviate her tremors. She confirmed she had

tried several medications but to no avail, explaining many

6 A-0049-17T3 medications caused side effects, such as dry mouth, dry eyes, and

dizziness. She further testified she was taking Parkinson's

disease medication that Dr. Colcher originally prescribed. The

medication slightly lessened her symptoms, but only lasted for a

short period of time.

Petitioner also presented the expert testimony of Dr. Anca

Bereanu, M.D., a board-certified clinical neurologist. Dr.

Bereanu conducted an independent medical examination of petitioner

on June 17, 2015, and concurred with the findings of both Dr.

Colcher and Dr. Magnat. She diagnosed petitioner with "Parkinson's

disease with predominant tremor and mild cogwheeling/rigidity."

Dr. Bereanu also diagnosed petitioner as having "lumbosacral

degenerative disc disease with radicular syndrome and myofasciitis

of the cervical and lumbar spine," along with "non-insulin

dependent diabetes with episodes of hypoglycemia," and "mild

depression, adjustment disorder with mild anxiety . . . ." After

reviewing petitioner's job description, she concluded petitioner

is "unable to perform the requirements of her job [at the present

time of the examination] or in the foreseeable future."

Dr. Bereanu opined petitioner's "coordination and control

of . . . movements [are] rather interrupted by tremors. So she

could not perform coherent handwriting, and she also could not

perform finger activities[,] specifically on the right[,] because

7 A-0049-17T3 of the weakness[,] and on the left because of the tremor." Dr.

Bereanu also stated petitioner's "ability to be verbal and to talk

either on the phone or in person" is affected. When asked whether

medication would prove helpful, Dr. Bereanu testified that both

alleged diseases would be difficult to treat with medication, and

that patients typically become resistant over time.

During Dr. Bereanu's physical examination of petitioner, she

observed that petitioner had tremors in her upper extremities and

head, a low and raspy voice that lost volume while speaking, and

bradykinesia, which she described as "a very slow motion." Dr.

Bereanu also noticed weakness and clumsiness with

cogwheeling/rigidity of the right hand, wrist, fingers, and

forearm. When petitioner wrote a sentence as part of the exam,

Dr. Bereanu described the result as "mostly scribbled" and

"tremulous" and noted "[t]he characters were small." Dr. Bereanu

based her diagnosis on the correlation between those observations

and Parkinson's disease.

When asked about Dr. Yang's inconsistent diagnosis, Dr.

Bereanu explained the two diagnoses do not necessarily conflict.

She described benign essential tremor as a tremor with an undefined

cause, typically an exclusionary diagnosis. Since Dr. Yang's

reports indicate petitioner had not yet developed rigidity when

he last examined her in early 2013, and since rigidity constitutes

8 A-0049-17T3 a necessary symptom for Parkinson's disease, Dr. Yang made benign

essential tremor the clinical diagnosis,

At the end of her direct examination, the ALJ asked Dr.

Bereanu how petitioner's medical records, combined with her

examination that was conducted significant after petitioner's

retirement, could cause her to conclude petitioner was

incapacitated as of January 2014. Dr. Bereanu responded that when

the tremor becomes "complicated by rigidity," she can conclude

that it would be incapacitating. Because Dr. Colcher found

rigidity in petitioner's January 2014 examination, Dr. Bereanu

stated she can conclude petitioner was incapacitated as of January

2014.

The Board presented Dr. Lomazow's testimony, who opined

petitioner has a mild essential tremor, not Parkinson's disease,

and concluded her tremors are not of a degree to be "totally and

permanently disabling." Dr. Lomazow stated he did not observe any

of the symptoms indicating Parkinson's disease that petitioner's

other doctors observed. Nevertheless, he acknowledged that during

his second examination, petitioner held her hand rigid to her

right side. When asked what caused this symptom, Dr. Lomazow

speculated petitioner may have been in pain, but described her as

"conscious" of what she was doing. Dr. Lomazow further opined

that petitioner was not taking large enough quantities of her

9 A-0049-17T3 prescribed medication to be useful, describing her dosage as "an

entry level kindergarten kind of dose."

Dr. Lomazow acknowledged that a benign essential tremor is

"generally a progressive disease that gets worse with age" and it

is possible for an essential tremor to cause total permanent

disability. Dr. Lomazow also acknowledged it was "conceivable"

that neurologists would differ in their opinion as to whether

petitioner has Parkinson's disease, but in his opinion, she does

not. He further stressed that emphasis should not be on

petitioner's diagnosis, but on "the crux of the matter, [i.e.,]

is she totally and permanently disabled." Dr. Lomazow conceded

he observed "a slight amount more tremor" at the time of his

second examination of petitioner.

On June 15, 2017, the ALJ issued his Initial Decision,

concluding he "cannot 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." In

reaching this decision, the ALJ determined he "cannot accept Dr.

Bereanu's opinion to a reasonable degree of medical certainty,"

and further stated his "rejection of [her] opinion is based upon

the observations from the prior medical examinations of Dr. Yang

and Dr. Lomazow; the petitioner's historical functional-limitation

10 A-0049-17T3 representations to [FTS] at and around March 5, 2014; and the fact

that Dr. Bereanu did not examine petitioner until June 17, 2015."

As noted, in his decision the ALJ questioned whether the

proper standard for determining ODRB eligibility is "totally and

permanently disabled" or "physically or mentally incapacitated for

the performance of duty." He concluded that based on the plain

language and legislative intent of N.J.S.A. 43:15A-42, the correct

standard applicable to petitioner's application was "physically

or mentally incapacitated for the performance of duty."4

II

Our scope of review of an administrative agency's final

determination is limited. In re Herrmann, 192 N.J. 19, 27 (2007).

"[A] strong presumption of reasonableness attaches" to the

agency's decision. In re Carroll, 339 N.J. Super. 429, 437 (App.

Div. 2001) (internal quotations and citation omitted). To that

end, we will "not disturb an administrative agency's

determinations or findings unless there is a clear showing that[:]

(1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was

not supported by substantial evidence." In re Application of

4 Notably, N.J.A.C. 17:1-6.4 (effective June 20, 2016), now requires all disability retirements to satisfy the "total and permanent disability" standard.

11 A-0049-17T3 Virtua-W. Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008)

(citations omitted).

It is not our place to second-guess or substitute our judgment

for that of the agency and, therefore, we do not "engage in an

independent assessment of the evidence as if [we] were the court

of first instance." State v. Locurto, 157 N.J. 463, 471 (1999).

However, "we are not bound by an agency's construction of a statute

just as we are not bound by its other, strictly legal

determinations." Patel v. N.J. Motor Vehicle Comm'n, 200 N.J.

413, 420 (2009) (citation omitted).

On appeal, we cannot determine whether the Board applied the

proper standard in reviewing petitioner's disability application,

nor can we properly address if the Board's early ODRB denial,

"i.e., as of August 21, 2013, not on or about January 1, 2014,"

inappropriately deprived petitioner of rights. Because the Board

did not address the questions the ALJ posed in his initial

decision, we have no basis for determining whether the Board used

the proper standard or date in determining petitioner's ODRB

eligibility. Accordingly, we are constrained to remand this matter

to the Board to reconsider petitioner's claim, after identifying

and applying the controlling standard to the correct date. We add

the following comments.

12 A-0049-17T3 For petitioner, it would appear the ALJ identified the correct

standard for determining eligibility for ODRB benefits, explaining

petitioner had "the burden to establish by a preponderance of the

credible medical evidence that she is physically or mentally

incapacitated" from performing her job duties. The plain text of

N.J.S.A. 43:15A-42, clearly supports this standard:

A member, under [sixty] years of age, who has [ten] or more years of credit for New Jersey service, shall, upon the application of the head of the department in which he [or she] shall have been employed or upon his [or her] own application or the application of one acting in his [or her] behalf, be retired for ordinary disability by the board of trustees. The physician or physicians designated by the board shall have first made a medical examination of him [or her] at his [or her] residence or at any other place mutually agreed upon and shall have certified to the board that the member is physically or mentally incapacitated for the performance of duty and should be retired.

[(Emphasis added).]

The rules governing statutory construction are well-settled.

"Except whe[n] uncertainty and ambiguity appear, a statute must

speak for itself and be construed according to its own terms."

Rosenthal v. State Emp. Ret. Sys., 30 N.J. Super. 136, 140 (App.

Div. 1954); see also DiProspero v. Penn, 183 N.J. 477, 492 (2005).

Assuming the Board agrees with the ALJ as to the correct

standard to apply, the Board should address whether Dr. Lomazow

13 A-0049-17T3 provided testimony addressing that standard and whether he gave

consideration to petitioner's other medical issues, such as back

pain, diabetes, and depression, in formulating his opinion.

Reversed and remanded. We do not retain jurisdiction.

14 A-0049-17T3