NOT FOR PUBLICATION WITHOUT THE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-5228-17T3
RAYMOND CARLSON,
(Deceased),
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,1
Respondent-Respondent.
______________________________
Submitted May 9, 2019 – Decided May 22, 2019
Before Judges Simonelli and Firko.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-10-030802.
The Toscano Law Firm, LLC, attorneys for appellant
(Patrick P. Toscano, Jr., on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
1
Improperly pled as the Division of Pension and Benefits.
General, of counsel; Danielle P. Schimmel, Deputy
Attorney General, on the brief).
PER CURIAM
Raymond Carlson was a firefighter with the City of Summit who retired
on special retirement under N.J.S.A. 43:16A-11.1 and received his monthly
retirement allowance from September 2004 until his death in May 2014.
Carlson's child and widow, appellant Stephanie Carlson, received survivor
special retirement benefits after Carlson's death pursuant to N.J.S.A. 43:16A-
12.1(a). In March 2017, appellant requested that the Board of Trustees (Board)
of the Police and Firemen's Retirement System (PFRS) amend Carlson's pension
status to accidental death benefits under N.J.S.A. 43:16A-10. Appellant appeals
from the Board's July 12, 2018 final agency decision denying her request to
transmit this matter to the Office of Administrative Law (OAL) for a hearing as
a contested case. We affirm.
I.
We begin with a review of the pertinent authority. The PFRS Act,
N.J.S.A. 43:16A-1 to -68, and corresponding regulations N.J.A.C. 17:4-6.1 to -
6.18, govern the PFRS.
General Provisions
N.J.S.A. 43:16A-1 contains the following pertinent definitions:
A-5228-17T3
2
(3) "Member" shall mean any . . . fireman included in
the membership of the retirement system pursuant to
this amendatory and supplementary act . . . .
....
(7) "Service" shall mean service as a . . . fireman paid
for by an employer.
....
(11) "Annuity" shall mean payments for life derived
from the aggregate contributions of a member.
(12) "Pension" shall mean payments for life derived
from contributions by the employer.
(13) "Retirement allowance" shall mean the pension
plus the annuity.
....
(16) "Retirement" shall mean the termination of the
member’s active service with a retirement allowance
granted and paid under the provisions of this act.
[(Emphasis added).]
N.J.A.C. 17:4-6.7(a)(1) provides that "[a] 'member in service' means that the
member or the employer was making pension contributions to the retirement
system at the time of filing the application for a disability retirement allowance."
N.J.A.C. 17:4-6.1 governs the retirement application process. N.J.A.C.
17:4-6.1(a) provides that "[a] member's retirement application becomes
A-5228-17T3
3
effective on the first of the month following receipt of the application unless a
future date is requested." N.J.A.C. 17:4-6.2 provides that a member's retirement
allowance becomes due and payable "[thirty] days after the date the Board
approved the application for retirement or one month after the date of the
retirement, whichever is later." N.J.A.C. 17:4-6.3(a) provides:
Except as provided by N.J.A.C. 17:4-6.7, a member
shall have the right to withdraw, cancel or change an
application for retirement at any time before the
member's retirement allowance becomes due and
payable by sending a written request signed by the
member. Thereafter, the retirement shall stand as
approved by the Board.
[(Emphasis added).]
Special Retirement
N.J.S.A. 43:16A-11.1 governs special retirement. N.J.S.A. 43:16A-
11.1(a) provides:
Should a member resign after having established
[twenty-five] years of creditable service, he may elect
"special retirement," provided, that such election is
communicated by such member to the retirement
system by filing a written application, duly attested,
stating at what time subsequent to the execution and
filing thereof he desires to be retired. He shall receive,
in lieu of the payment provided in [N.J.S.A. 43:16A-
11], a retirement allowance which shall consist of:
(1) An annuity which shall be the actuarial equivalent
of his aggregate contributions, and
A-5228-17T3
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(2) A pension in the amount which, when added to the
member’s annuity, will provide (a) for a person who is
a member on the effective date [June 28, 2011] of [L.]
2011, [c.] 78, a total retirement allowance of [sixty-five
percent] of final compensation, plus [one percent] of
final compensation multiplied by the number of years
of creditable service over [twenty-five] but not over
[thirty] or (b) for a person who becomes a member of
the retirement system after that effective date, a total
retirement allowance of [sixty percent] of final
compensation, plus [one percent] of final compensation
multiplied by the number of years of creditable service
over [twenty-five] but not over [thirty]; provided,
however, that any member who has earned, prior to July
1, 1979, more than [thirty] years of creditable service,
shall receive an additional [one percent] of his final
compensation for each year of his creditable service
over [thirty].
The [Board] shall retire him at the time specified or at
such other time within one month after the date so
specified as the [B]oard finds advisable.
Upon the receipt of proper proofs of the death of such
a retired member, there shall be paid to his beneficiary
an amount equal to one-half of the final compensation
received by the member.
Survivor Special Retirement Benefits
N.J.S.A. 43:16A-12.1(a) governs survivor special retirement death
benefits:
Upon the death after retirement of any member of the
retirement system there shall be paid to the member’s
widow or widower a pension of [fifty percent] of final
compensation for the use of herself or himself, to
A-5228-17T3
5
continue during her or his widowhood, plus [fifteen
percent] of such compensation payable to one surviving
child or an additional [twenty-five percent] of such
compensation to two or more children; if there is no
surviving widow or widower or in case the widow or
widower dies or remarries,[twenty percent] of final
compensation will be payable to one surviving child,
[thirty-five percent] of such compensation to two
surviving children in equal shares and if there be three
or more children, [fifty percent] of such compensation
would be payable to such children in equal shares.
Survivor Accidental Death Benefits
N.J.S.A. 43:16A-10 governs survivor accidental death benefits. N.J.S.A.
43:16A-10(1) provides for payment of survivor accidental death benefits
"[u]pon the death of a member in active service as a result of . . . [a]n accident
met in the actual performance of duty at some definite time and place[.]"
(Emphasis added). N.J.S.A. 43:16A-10(2), (5), and (6) provide greater survivor
death benefits than N.J.S.A. 43:16A-12.1(a).
Active Member Status
N.J.S.A. 43:16A-9(5)(a) addresses when a member is deemed an active
member of the PFRS for eligibility purposes:
For the purposes of this section and [N.J.S.A. 43:16A-
10(5)], a member of the [PFRS] shall be deemed to be
an active member for a period of no more than [ninety-
three] days while on official leave of absence without
pay when such leave is due to any reason other than
illness, and for a period of not more than one year in
A-5228-17T3
6
the event of an official leave (a) due to the member’s
maternity, or (b) to fulfill a residency requirement for
an advanced degree, or (c) as a full-time student at an
institution of higher education, and (1) while he is
disabled due to sickness or injury arising out of or in
the course of his employment as a member to whom this
act applies, is not engaged in any gainful occupation,
and is receiving or entitled to receive periodic benefits
(including any commutation of, or substitute for, such
benefits) for loss of time on account of such disability
under or by reason of workmen’s compensation law,
occupational disease law or similar legislation and has
not retired or terminated his membership; or (2) for a
period of no more than two years while on official leave
of absence without pay if satisfactory evidence is
presented to the retirement system that such leave of
absence without pay is due to the member’s personal
illness other than an illness to which (1) above applies.
[(Emphasis added).]
II.
We now turn to the facts of this case. Carlson responded to the World
Trade Center on September 11, 2001. On November 10, 2002, Carlson
submitted an application for special retirement, effective August 1, 2004. On
December 15, 2003, the Board approved Carlson's application, effective August
1, 2004. On September 1, 2004, Carlson began receiving a special retirement
allowance of $4,776.22 per month. He received 116 monthly retirement
payments through May 1, 2014, totaling $589,633.06.
A-5228-17T3
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Carlson died on May 6, 2014, from advanced head and neck cancer. On
May 20, 2014, the Division of Pensions and Benefits (Division) notified
appellant that she would receive a survivor special retirement benefit of
$4,005.39 per month for the rest of her life or until she remarried and Carlson's
minor child would receive $1,201.63 per month. See N.J.S.A. 43:16A-12.1(a).
The Division also notified appellant she would receive a group life insurance
benefit of $43,995.96. See N.J.S.A. 43:16A-7(3). In July 2014, appellant and
Carlson's child began receiving their monthly benefits. Appellant also received
the group life insurance benefit.
On July 24, 2017, approximately thirteen years after Carlson's effective
retirement date, and approximately three years after his death, appellant
requested that the Board amend Carlson's pension status to accidental death
benefits under N.J.S.A. 43:16A-10, claiming Carlson's illness and death may
have been causally related to the time he spent on duty at or near the World
Trade Center.
The Board referred appellant's request to the Division for administrative
review. On August 11, 2017, the Division denied the request administratively.
A-5228-17T3
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Quoting the language in N.J.A.C. 17:2-6.3(a),2 the Division found Carlson was
approved for a special retirement allowance, effective August 1, 2004; Carlson
began receiving his retirement allowance on September 1, 2004; and appellant
had been receiving her survivor special retirement benefits since May 2014.
The Division forwarded appellant's request to the Board for final agency action.
On April 19, 2018, the Board denied appellant's request. The Board
reviewed the history of this matter, found N.J.S.A. 43:16A-10 requires that the
death of the PFRS member must occur while in active service, and determined
Carlson was not eligible for accidental death benefits because he was retired and
receiving a special retirement allowance at the time of his death. The Board
advised appellant that she could appeal to the Board within forty-five days, and
the Board would determine whether to grant an administrative hearing b ased on
the standards for a contested case under the Administrative Procedure Act
(APA), N.J.S.A. 52:14B-1 to -15, and corresponding administrative regulations.
The Board also advised:
If the granted appeal involves solely a question
of law, the Board may retain the matter and issue a final
determination, which shall include detailed findings of
fact and conclusions of law based upon the documents,
2
The Division incorrectly cited N.J.A.C. 17:2-6.3(a), which governs the Public
Employees' Retirement System; however, it is clear the Division was referring
to N.J.A.C. 17:4-6.3(a), which governs the PFRS.
A-5228-17T3
9
submissions and legal arguments of the parties. The
Board's final determination may be appealed to the
Superior Court, Appellate Division. If the granted
appeal involves a question of fact, the Board shall
submit the matter to the [OAL].
Appellant appealed the Board's decision and requested transmittal of the
matter to the OAL for a hearing as a contested case. Appellant did not assert
there was a factual dispute. Rather, she argued that the Board:
(1) misinterpreted the relevant statutes governing the
issues;
(2) did not consider this was a case of first impression;
(3) did not fully understand the relevant delayed
manifestation/eventual ascertainment of the cause of
death issue;
(4) did not fully consider the true legislative intent of
the statutes the Board relied on in denying the requested
change regarding accidental death benefits; and
(5) did not fully understand or properly interpret
voluminous medical records and/or medical opinions
regarding when the true cause of Carlson's death was
actually discoverable or conceivable.
On June 11, 2018, the Board denied appellant's request for transmittal of
the case to the OAL finding "there were no questions of fact in dispute merely
questions of law." In a July 12, 2018 final administrative decision, the Board
found this matter did not entail any disputed questions of facts and the Board
A-5228-17T3
10
was able to reach its findings of facts and conclusions of law without the need
for an administrative hearing. The Board recounted the undisputed factual and
procedural history and determined:
As an active member [] Carlson applied for and was
granted a [s]pecial retirement. At that point his status
was no longer an active participant, but [] Carlson was
a retiree of PFRS. As a matter of law, the Board denied
[appellant's] request in accordance with [N.J.S.A.
43:16A-10] which requires that the death of the PFRS
member must occur while the member is in active
service. Because [] Carlson was retired and receiving
[s]pecial retirement benefits he is not eligible for
[a]ccidental death benefits.
The Board acknowledged that the term "active service" is not specifically
defined in N.J.S.A. 43:16A-10, but cited the definition of "service" in N.J.S.A.
43:16A-1 that "'[s]ervice' shall mean service as a . . . fireman paid for by an
employer." The Board also noted that N.J.S.A. 43:16A-9(5)(a) provides that a
PFRS member is in active service if he has not retired or terminated his
membership.
The Board found that the history of N.J.S.A. 43:16A-10 revealed a
legislative intent to narrow the eligibility for accidental death benefits and
require that such benefits be awarded only upon the death of a member who was
in active service. The Board explained:
A-5228-17T3
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A review of the history of [N.J.S.A.] 43:16A-10
indicates that prior to 1967, an accidental death benefit
was awarded "[u]pon the accidental death of a member
before retirement." L. 1964, c. 241, §7 (emphasis
added). Thus, a death benefit was payable so long as
no retirement application was filed, even if the member
had left service and was not contributing to the system.
In 1967, the language of [N.J.S.A.] 43:16A-10 was
amended to provide the benefit "[u]pon the death of a
member in active service." L. 1967, c. 250 (Chapter
250), § 10 (emphasis added). Chapter 250's definition
of the term "retirement" further indicates . . . the
Legislature's intent to narrow the eligibility for an
accidental death benefit. It defined "[r]etirement" as
"withdrawal from active service with a retirement
allowance granted under [the PFRS statutes]."
[(Second, fourth, and sixth alteration in original).]
The Board also determined that "[b]y the plain language of [N.J.S.A.]
43:16A-10, the Legislature intended that an accidental death benefit only be
available to those members who are in 'active service' at the time of death and
had not yet retired."
III.
On appeal, appellant does not point to any dispute of material fact. Rather,
she argues she should have been afforded a hearing before the OAL to prove
that "Carlson likely contracted cancer as a direct result of his on the job work
immediately post 9/11 . . . [and] if he did he would have been entitled to seek
[a]ccidental [d]isability [r]etirement, and his surviving widow would have
A-5228-17T3
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undoubtedly been entitled to that substantial related death benefit." 3 (Emphasis
added). However, appellant did not request a change in Carlson's pension status
to accidental disability retirement under N.J.S.A. 43:16A-7, nor did she raise
this issue before the Board. 4 We will not address an issue, such as this, that was
not raised below, is not jurisdictional in nature, and does not substantially
implicate the public interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014).
Thus, the only question is whether the Board should have transmitted this matter
to the OAL for a hearing.
"The [APA] . . . does not create a substantive right to an administrative
hearing; it merely provides for a procedure to be followed in the event an
administrative hearing is otherwise required by statutory law or constitutional
mandate." Toys "R" Us, Inc. v. Twp of Mount Olive, 300 N.J. Super. 585, 590
(App. Div. 1997). Under the APA, an agency head has the exclusive authority
to determine whether a case is a contested case within the intent of the APA.
3
Appellant did not address the Board's determination that Carlson was not
eligible for accidental death benefits under N.J.S.A. 43:16A-10 because he was
not in active service at the time of his death and had retired. The issue therefore
is deemed waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2019).
4
Appellant does not even cite N.J.S.A. 43:16A-7 in her merits brief.
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N.J.S.A. 52:14F-7(a); N.J.A.C. 1:1-4.1; Sloan ex rel. Sloan v. Klagholtz, 342
N.J. Super. 385, 392 (App. Div. 2001). A hearing is only required if the matter
before the agency presents contested material issues of fact. Sloan, 342 N.J.
Super. at 392. (citing N.J.S.A. 52:14B-2(b)). When there are no contested
material issues of fact, the matter is not considered a "contested case." Ibid.
There was no dispute as to the material facts in this case. Thus, there was
no need for a hearing before the OAL because this was not a contested case. For
a survivor to be entitled to accidental death benefits under N.J.S.A. 43:16A-10,
the PFRS member must have died "in active service as a result of . . . [a]n
accident met in the actual performance of duty at some definite time and place ."
Carlson was not in active service when he died. He retired on special retirement
and terminated his membership in the PFRS years before his death, and he
received his special retirement allowance for nearly ten years. Because Carlson
was not in active service when he died, his pension status could not be amended
to accidental death benefits under N.J.S.A. 43:16A-10. The cause of his death
was not relevant to this issue.
Affirmed.
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