NOT FOR PUBLICATION WITHOUT THE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-0047-17T1
C.S.,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
_____________________________
Argued October 24, 2018 – Decided June 6, 2019
Before Judges Nugent and Reisner.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. 2-10-275988.
Samuel Michael Gaylord argued the cause for
appellants (Gaylord Popp, LLC, attorneys; Samuel
Michael Gaylord, on the brief).
Thomas Robert Hower, 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, C.S., a member of the Public Employees' Retirement System
(PERS), appeals from the final administrative determination of the PERS Board
of Trustees (PERS Board or Board), which adopted the Initial Decision of an
Administrative Law Judge (ALJ) that denied petitioner's application for
accidental disability retirement benefits. The ALJ and Board denied petitioner's
application after concluding petitioner's disability resulted from a preex isting
condition alone or in combination with work events, thus disqualifying her for
accidental disability benefits. Because the Board's decision is not arbitrary or
capricious, we affirm.
Petitioner, a special education aide, had been employed by the Princeton
Public School District for approximately fifteen years when she filed for
accidental disability retirement benefits. The Board denied her application but
granted her ordinary retirement benefits. She filed an administrative appeal and
the matter was transferred to the Office of Administrative Law (OAL) as a
contested case. Hearings were conducted before an ALJ, who retired before
rendering a decision. Another ALJ rendered a decision upholding the denial of
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petitioner's application. 1 Exceptions were filed, the Board upheld the decision,
and this appeal followed.
During the OAL hearing, petitioner recounted the incident that she
claimed precipitated her retirement. Petitioner was working with an autistic
student, whom she described as approximately six feet tall with broad shoulders.
The student said he was going to kill another teacher. Petitioner calmed the
student and took him to the school psychologist's office. There, the student
described for the psychologist how he was going to push the other teacher into
an empty classroom and smash her head against a brick wall.
As the psychologist was responding, the student said, "[a]nd I'm going to
do it now." He stood up and started toward the door. Petitioner and the
psychologist, a petite woman, attempted to block the student, who pushed them
both against an office wall. The psychologist yelled to petitioner to leave and
get help. Petitioner did, but envisioned horrible things happening to the
psychologist. A gym teacher and others arrived and escorted the student to the
main office, where petitioner waited with him until the police arrived.
1
According to the ALJ's Initial Decision, "the parties agreed to have the [second
ALJ] render a decision on the record."
A-0047-17T1
3
Petitioner testified she was never the same after the incident. During the
incident, she experienced a terrible fear for her own life and a greater fear for
the psychologist's life. Eventually, she was unable to return to school.
The incident with the autistic child occurred on November 30, 2011. With
the exception of two accidents in which petitioner injured her shoulder and her
back, requiring her to take time to recuperate, she worked until March 19, 2012.
She never returned to school after that day.
Two experts testified at the OAL hearing. Petitioner presented the
testimony of a psychiatrist who had been treating her for a mood disorder and
major depressive disorder for approximately ten years before the incident with
the autistic child. The psychiatrist had treated petitioner with medications such
as antidepressants, mood stabilizers, anxiety relieving medications, and
psychotherapy. The treatment was effective, for petitioner had no difficulty
performing her job. The doctor said she performed her job diligently and rarely
missed work, never because of job stress.
The psychiatrist opined that petitioner developed Post-Traumatic Stress
Disorder (PTSD) following the November 2011 incident. He explained that the
development was gradual. He further explained that petitioner was stressed but
tried her best to continue working. She began to develop symptoms of insomnia,
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severe sleep disturbance, and disorganized thought. Some months later, she
began to have flashbacks of the incident.
The psychiatrist also testified that petitioner sustained physical injuries in
January and March 2012, which contributed to the considerable stress she was
experiencing from the November 2011 incident. Because her emotional
condition was so fragile, he recommended that she take a leave of absence. The
doctor described petitioner as frazzled, overwhelmed, and unable to think
straight. He opined that her condition was a result of a combination of the
physical injuries and the emotional injury she had sustained.
In summary, petitioner's psychiatrist testified she suffered from disabling
PTSD following the November 2011 incident with the autistic child. Although
the stressors following her physical injuries may have been contributing factors,
the doctor opined, within a reasonable degree of medical certainty, the
November 2011 incident was the triggering factor and substantial cause of
petitioner's PTSD, which has resulted in petitioner's total disability.
The Board presented the testimony of a psychologist who examined
petitioner once, in November 2012, nearly four years before the hearing. The
psychologist recounted petitioner's history of mental health issues, including her
hospitalizations in 1990, and the history of treatment with her psychiatrist. In
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the psychologist's opinion, petitioner did not suffer from PTSD; rather, she
suffered from Major Depressive Disorder.
Based upon his review of petitioner's records, his clinical examination,
and petitioner's responses to a Personality Assessment Inventory, the
psychologist judged the petitioner's depression to be recurrent and moderate.
Although petitioner's responses to the Personality Assessment Inventory
included features of PTSD, the psychologist did not feel that it was clear she
met all the criteria for PTSD.
The psychologist did believe petitioner was totally and permanently
disabled from performing her duties as a special education aide, but he attributed
the cause of her disability to her previous major depressive disorder. The
November 2011 incident with the autistic child was, in his opinion, not a
significant or substantial cause of her disability. He pointed out that after the
November 2011 incident, petitioner was hurt at work twice, once when she
injured her back lifting books, and once when she was knocked down by a
student. In his opinion, the November 2011 incident and the two subsequent
incidents involving physical trauma accelerated petitioner's preexisting major
depressive disorder.
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The ALJ found the testimony of petitioner's psychiatrist – that petitioner
suffered PTSD as a result of the November 30, 2011 incident – not to be credible.
The ALJ found the testimony of the Board's psychologist – that petitioner's
current condition was preexisting – credible. Based on these credibility
determinations, the ALJ found as a fact that though petitioner was totally and
permanently disabled, her condition was preexisting and not the result of the
November 30, 2011 incident. The Board adopted the ALJ's decision. Petitioner
filed this appeal.
We have limited authority when we review a final decision of the PERS
Board. See In re Stallworth, 208 N.J. 182, 194 (2011). We "may not substitute
[our] own judgment for the agency's, even though [we] might have reached a
different result." Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)). "In
order to reverse an agency's judgment, [we] must find the agency's decision to
be 'arbitrary, capricious, or unreasonable, or ... not supported by substantial
credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway
State Prison, 81 N.J. 571, 579-80 (1980)). The burden of proving an agency
action is arbitrary, capricious, or unreasonable is on the party challenging the
agency's decision. Bueno v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div.
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2011) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App.
Div. 2002)).
A member of PERS is eligible for accidental disability retirement if the
member "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. 43:15A-43. If a member claims to suffer from a
permanent mental incapacity due solely to psychological trauma, the member
must make a threshold showing
that his or her disability results "from direct personal
experience of a terrifying or horror-inducing event that
involves actual or threatened death or serious injury, or
a similarly serious threat to the physical integrity of the
member or another person," and that the event is "not
inconsequential but is objectively capable of causing a
reasonable person in similar circumstances to suffer a
disabling mental injury."
[Mount v. Board of Trustees, Police and Firemen's
Retirement System, 233 N.J. 402, 407 (2018) (quoting
Patterson v. Board of Trustees, State Police Retirement
System, 194 N.J. 29, 34 (2008)).]
If a member does not satisfy this threshold requirement, the Board must
deny the application for accidental disability benefits. Ibid. If a member
satisfies this threshold requirement, the member must then satisfy the
requirements announced in Richardson v. Board of Trustees, Police and
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Firemen's Retirement System, 192 N.J. 189, 212-13 (2007) and reiterated in
Brooks v. Board of Trustees, Public Employees' Retirement System, 425 N.J.
Super. 277, 281 (App. Div. 2012). Mount, 233 N.J. at 407. The Richardson
requirements are:
1. that [the member] is permanently and totally
disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to the
member (not the result of pre-existing
disease that is aggravated or accelerated by
the work);
3. that the traumatic event occurred during and as a
result of the member's regular or assigned duties;
4. that the disability was not the result of the
member's willful negligence; and
5. that the member is mentally or physically
incapacitated from performing his usual or any other
duty.
[Richardson, 192 N.J. at 212-13.]
In her first argument on appeal, petitioner asserts this case turns on the
credibility of the experts, who gave contrasting opinions as to whether she was
permanently and totally disabled as a direct result of the November 30, 2011
incident. She argues extensively that her expert psychiatrist's testimony was
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more credible than that of the Board's expert psychologist and the ALJ erred by
finding to the contrary.
It is important for petitioner to understand that "[w]hen error in factfinding
of a judge or administrative agency is alleged, the scope of appellate review is
limited. We will decide whether the findings made could reasonably have been
reached on 'sufficient' or 'substantial' credible evidence present in the record
considering the proofs as a whole." Cannuscio v. Claridge Hotel and Casino,
319 N.J. Super. 342, 347 (App. Div. 1999) (citing Close v. Kordulak Bros., 44
N.J. 589, 599 (1965)). "Appellate review does not consist of weighing evidence
anew and making independent factual findings; rather, our function is to
determine whether there is adequate evidence to support the judgment rendered
at trial." Ibid. (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We give "due
regard to the opportunity of the one who heard the witnesses to judge . . . their
credibility." Close, 44 N.J. at 599. In addition, "in the case of agency review,
we give due regard . . . to the agency's expertise where such expertise is a
pertinent factor." Ibid.
Here, the ALJ's credibility determinations, adopted by the Board, were
supported by ample evidence in the record. Petitioner had a significant history
of major depression that predated the November 2011 incident. She worked for
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more than three months following the incident with the autistic student, except
for time she needed to recuperate from two subsequent incidents that caused her
physical trauma. These subsequent incidents, according to petitioner's expert,
contributed to her stress. It was only after the second incident involving physical
trauma that petitioner's psychiatrist recommended she take a leave of absence.
She did. She never returned to her job.
Considering these facts, and adhering to our limited standard of review,
we cannot say the Board's final administrative determination, supported as it
was by ample evidence in the record, was arbitrary, capricious, or unreasonable.
Consequently, we must reject petitioner's first argument. Stallworth, 208 N.J.
at 194.
In view of our disposition of petitioner's first argument, we need not
address her second, that is, she made the threshold showing required of PERS
members seeking accidental disability retirement benefits based on a permanent
mental incapacity due solely to psychological trauma.
Affirmed.
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