NOT FOR PUBLICATION WITHOUT THE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