MICHAEL NOWICKI VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-2966-16T1

MICHAEL NOWICKI,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,

Respondent-Respondent.
______________________________

Argued July 16, 2018 – Decided July 27, 2018

Before Judges Whipple and Suter.

On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 3-97678.

John D. Feeley argued the cause for appellant
(Feeley & LaRocca, LLC, and The Blanco Law
Firm, LLC, attorneys; Pablo N. Blanco, of
counsel; John D. Feeley and Pablo N. Blanco
on the brief).

Jeffrey S. Ignatowitz, Deputy Attorney
General, argued the cause for respondent
(Gurbir S. Grewal, Attorney General, attorney;
Melissa D. Schaffer, Assistant Attorney
General, of counsel; Jeffrey S. Ignatowitz,
on the brief).

PER CURIAM
 Michael Nowicki appeals from the March 14, 2017 final agency

decision by the Police and Fireman's Retirement System (PFRS)

Board of Trustees (Board) that denied his request to file for an

accidental disability pension. We affirm the Board's decision.

Petitioner was employed by the New Jersey Department of

Corrections (DOC) as a corrections officer. He applied for an

accidental disability pension in May 2015, claiming he injured his

right shoulder and elbow in April 2012 and could no longer function

as a corrections officer.

Relevant here, the DOC filed two disciplinary actions against

petitioner. The first Preliminary Notice of Disciplinary Action

(PNDA) on March 6, 2014, charged him with "chronic or excessive

absenteeism." DOC sustained the charges, issued a Final Notice

of Disciplinary Action (FNDA) on April 14, 2014, and suspended

petitioner for fifteen days. The case was transferred to the

Office of Administrative Law (OAL) when he requested a hearing.

The second PNDA was issued on July 2014 based on his arrest

for possession of three oxycodone pills without a prescription in

violation of N.J.S.A. 2C:35-10.5.1 The PNDA charged petitioner

with conduct unbecoming a public employee and for the use,

possession or sale of a controlled dangerous substance. The

1
The Board was notified in February 2016 that these charges were
dismissed.

2 A-2966-16T1
October 29, 2014 FNDA sustained the charges. Petitioner was

removed from his position as a corrections officer on November 1,

2014. This case was also transferred to the OAL for a hearing.

On June 10, 2016, petitioner and DOC settled both pending

disciplinary cases. In the settlement, petitioner agreed to accept

a general resignation from employment, effective on November 1,

2014, in lieu of the administrative charges. He waived any claims

against DOC including back pay, counsel fees or other monetary

relief. Neither party admitted any liability. Petitioner agreed

to withdraw both pending appeals. He agreed to "not to seek

further employment with the Department of Corrections."

An administrative law judge (ALJ) approved the settlement.

It then was adopted by the Civil Service Commission (CSC) on

September 20, 2016. Petitioner's application for an accidental

disability retirement pension remained pending.

In August 2017, the Board notified petitioner that it wanted

to review the settlement in connection with his disability

application. Petitioner was permitted to provide additional

information to the Board. The Board asked DOC whether it was

willing to amend the settlement to permit petitioner to return to

work if his disability diminished, but DOC would not agree to

that, advising "the agreement stands 'as is'".

3 A-2966-16T1
 The Board considered petitioner's request to file for an

accidental disability pension on January 9, 2017, and denied it

on January 19, 2017 by letter. The Board determined that

petitioner's "reason for leaving was not due to a disabling

condition" but that he had "submitted his resignation in lieu of

termination proceedings." In addition, because he waived his

right to reinstatement in the future, he was "unable to comply

with N.J.S.A. 43:16A-8(2) because he ha[d] no job to return to

should the alleged disabling condition diminish." Although

petitioner's counsel advised at the Board's January 9, 2017 meeting

that he "did not believe the [s]ettlement [a]greement would affect

his pension," the Board found that "the plain language of the

agreement [was] contrary to the statutory scheme governing a

disability pension." The Board stated:

if his application was processed and he was
granted an [a]ccidental disability pension and
later it was determined that he was no longer
disabled, there is no mechanism for the Board
to stop paying the pension because he could
never be ordered to return to work, as
required by N.J.S.A. 43: 16A-8(2). Granting
a disability retirement under these
circumstances would be in contravention of the
statutory scheme, and place the Board in the
position of potentially paying a pension for
which the Board has not ability or mechanism
to terminate the pension payment.

The Board did not review petitioner's honorable service under

N.J.S.A. 43:1-3 because this would be premature. The Board noted

4 A-2966-16T1
that petitioner "may be eligible to file for a [d]eferred

retirement."

Petitioner appealed and requested a hearing at the OAL. The

Board denied the hearing request in February 2017 because "there

[were] no questions of fact in dispute merely questions of law."

The Board advised it would issue a final decision.

The March 14, 2017 final decision of the Board was consistent

with its January 19, 2017 letter. It found petitioner "submitted

his resignation in lieu of termination proceedings" and that he

had "waived his right to reinstatement in the future." He had "no

job to return to" if his condition diminished and could not

therefore comply with N.J.S.A. 43:16A-8(2). Although he may be

eligible for a deferred retirement, that issue was not ripe for

consideration. There were no disputed issues of fact, permitting

the Board to reach a decision without an administrative hearing.

On appeal, petitioner contends that the Board's final

decision that it did not process petitioner's application for an

accidental disability retirement pension was arbitrary, capricious

or unreasonable and that the Board did not "turn square corners

in dealing with its member." He argues that even though he settled

the disciplinary cases, he thought his pension application would

be processed. Also, because the pension statute is remedial, the

statute should be interpreted to grant benefits based on the

5 A-2966-16T1
disability until the disability vanishes and then the benefits

should be discontinued.

The scope of our review in an appeal from a final decision

of an administrative agency is limited. Russo v. Bd. of Trs., 206

N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)).

The agency's decision should be upheld unless there is a "clear

showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record." Ibid. (quoting Herrmann,

192 N.J. at 27-28). We generally "afford substantial deference

to an agency's interpretation of a statute that the agency is

charged with enforcing." Richardson v. Bd. of Trs., 192 N.J. 189,

196 (2007) (citation omitted). "Such deference has been

specifically extended to state agencies that administer pension

statutes," because "'a state agency brings experience and

specialized knowledge to its task of administering and regulating

a legislative enactment within its field of expertise.'" Piatt

v. Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. Div.

2015) (quoting In re Election Law Enf't Comm'n Advisory Op. No.

01-2008, 201 N.J. 254, 262 (2010)). We are not "bound by the

agency's interpretation of a statute or its determination of a

strictly legal issue." Richardson, 192 N.J. at 196 (quoting In

re Taylor, 158 N.J. 644, 658 (1999)).

6 A-2966-16T1
 The PFRS provides for both ordinary, N.J.S.A. 43:16A-6, and

accidental, N.J.S.A. 43:16A-7(1), disability benefits. "[A]n

accidental disability retirement entitles a member to receive a

higher level of benefits than those provided under an ordinary

disability retirement."2 Patterson v. Bd. of Trs., 194 N.J. 29,

43 (2008) (citation omitted). Once the application is received,

2
In Richardson, the Court held that a claimant for accidental
disability retirement benefits must prove:

1. that he 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.]

7 A-2966-16T1
it is referred to the medical board for the appointment of a

physician to examine the applicant. That report shall be

considered by the Board with the application.

A beneficiary under age fifty-five who has been retired on a

disability retirement allowance:

on his request shall, or upon the request of
the retirement system may, be given a medical
examination and he shall submit to any
examination by a physician or physicians
designated by the medical board once a year
for at least a period of five years following
his retirement in order to determine whether
or not the disability which existed at the
time he was retired has vanished or has
materially diminished. If the report of the
medical board shall show that such beneficiary
is able to perform either his former duty or
any other available duty in the department
which his employer is willing to assign to
him, the beneficiary shall report for duty;
such a beneficiary shall not suffer any loss
of benefits while he awaits his restoration
to active service. If the beneficiary fails
to submit to any such medical examination or
fails to return to duty within 10 days after
being ordered so to do, or within such further
time as may be allowed by the board of trustees
for valid reason, as the case may be, the
pension shall be discontinued during such
default.

[N.J.S.A. 43:16A-8 (emphasis added).]

Here, the Board's actions were not arbitrary, capricious or

unreasonable. The Board had no obligation to process petitioner's

application for an accidental disability pension because he did

not retire on the basis of his disability. Under the settlement,

8 A-2966-16T1
petitioner voluntarily terminated his employment; there was no

indication that it was related to any disability arising from an

accident that would satisfy Richardson.

Neither party had the ability to enter into a settlement that

modified the statute's requirement in N.J.S.A. 43:16A-8 that

petitioner report to duty if his disabling condition vanished or

materially diminished. This section mandates that the employer

reinstate a member returned from disability with seniority and

credit for prior service. See In re Allen, 262 N.J. Super. 438,

444 (App. Div. 1993) (providing that N.J.S.A. 43:16A-8(2)

contemplates that a "formerly disabled individual [be returned]

as nearly as possible to the status held at the time he or she was

pensioned"). We agree with the Board that because petitioner

resigned without the ability to be reemployed that he could not

satisfy N.J.S.A. 43:16A-8 in the event that his disability improved

to the point that he could work. "[T]he law does not require the

performance of futile acts." Stark v. Nat'l Research & Design

Corp., 33 N.J. Super. 315, 322 (App. Div. 1954).

Petitioner submitted no credible evidence that any

representation was made to him that his application for an

accidental disability pension would not be affected by the

settlement. This is not a case, therefore, where equitable

estoppel applies. See Sellers v. Bd. of Tr., 399 N.J. Super. 51,

9 A-2966-16T1
58 (App. Div. 2008) (citation omitted) (providing that equitable

estoppel applies only "in very compelling circumstances, where the

interest of justice, morality and common fairness dictate that

course.").3

Affirmed.

3
The Board has acknowledged that petitioner may be able to obtain
a deferred retirement because he avoided removal for cause related
to his employment by settling the OAL cases. See N.J.S.A. 43:16A-
11.2.

10 A-2966-16T1