ELAINE GECHTMAN VS. TEACHERS' PENSION AND ANNUITY FUND (BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND)

NOT FOR PUBLICATION WITHOUT THE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-1954-16T3

ELAINE GECHTMAN,

Petitioner-Appellant,

v.

TEACHERS' PENSION AND ANNUITY
FUND,

Respondent-Respondent.
________________________________

Submitted June 19, 2018 - Decided July 27, 2018

Before Judges Simonelli and Koblitz.

On appeal from the Board of Trustees of the
Teachers' Pension and Annuity Fund, TPAF No.
02013-2015N.

Bergman and Barrett, attorneys for appellant
(Michael T. Barrett, of counsel and on the
brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Robert
S. Garrison, Jr., Deputy Attorney General, on
the brief).

PER CURIAM

Elaine Gechtman appeals from the December 2, 2016 final

determination of the Board of Trustees of the Teachers' Pension
and Annuity Fund (TPAF) rejecting the Administrative Law Judge's

(ALJ) initial decision that Gechtman was totally and permanently

disabled and therefore eligible for ordinary disability retirement

benefits. We affirm.

Gechtman was first employed in October 2000, and retired on

July 1, 2014, after applying in May for a disability pension. On

December 5, 2014, the Board of TPAF initially found Gechtman, a

former Elizabeth elementary school teacher who retired after

almost fifteen years of work, was not totally and permanently

disabled from the performance of her regular and assigned duties,

and was therefore ineligible for a disability retirement. N.J.S.A.

18A:66-39(b). She appealed, and the matter was transferred to the

Office of Administrative Law where an ALJ conducted three days of

hearings. A delay in receiving transcripts led to the ALJ finally

requiring post-hearing submissions without the transcripts, four

months after the close of the hearing.

The ALJ found that Gechtman, then sixty-seven years old, had

worked as an "itinerant teacher, a position that was akin to a

floater and took her to different classrooms and buildings." The

ALJ found Gechtman was "constantly [] up and standing." She "would

often get on the floor" with the younger students and "involved

herself physically in teaching her students." Gechtman testified

that she had worked in the same building the last few years, where

2 A-1954-16T3
she had to climb stairs often when the elevator was broken, which

was extremely hard for her to do.

When she filed her ordinary disability retirement

application, Gechtman stated she suffered from1

Achilles bursitis/tendinitis and lumbar and
back problems which includes having problems
walking with stairs and bending, carrying
thing in front of me.

A student swinging a backpack as I was walking
down the stairs the backpack went under my
foot and flipped me over the rest of the stairs
and outside the building. I was heading
towards the right and did not want to hurt the
student I swung my body to the left and another
student was there and I swung my body to the
middle and ended up falling onto cement and
ended up at the doctors.

Gechtman testified this accident occurred in October 2005.

She returned to work about a month later, although her physical

condition continued to deteriorate. Gechtman also submitted forms

from two treating doctors, a pain management specialist and Dr.

Walter Pedowitz, her treating orthopedic surgeon for the past ten

years, attesting to her inability to perform her duties. Dr.

Pedowitz stated in his certification that Gechtman suffered from

"spinal stenosis," and had physical symptoms of "weak legs,"

"spasms and difficulty walking." The ALJ found that not only was

it "difficult for Gechtman to . . . do her job," but that at home

1
We repeat the statement exactly as written, except that it was
submitted in capital letters.
3 A-1954-16T3
she could not put on socks, climb stairs, wash laundry or dishes

or clean her own home. She could only drive a car for about

twenty-five minutes at a time.

Dr. David Weiss, Gechtman's testifying expert, conducted his

own examination, commenting on the disc bulges and surgery done

by Gechtman's treating doctor. His examination revealed

significant orthopedic difficulties and he commented that Gechtman

utilized a cane. He found that she is "unable to engage in her

job related functions." He described those functions in his

report, stating: "This job requires her to perform repetitive

bending with pre-school children, prolonged standing, going up and

down stairs, [and] getting the children out safely for fire

drills."

The ALJ found Dr. Weiss, who was qualified as an expert in

orthopedic medicine, more credible than the independent medical

examiner selected by the Board, Dr. Arnold Berman, finding that

"Berman examined an apparently very different Gechtman than any

other physician who examined her before or after him." After a

twenty-five to thirty minute physical examination, Berman found

no evidence of meniscal tears, although Gechtman had an operation

to repair a torn meniscus just one month after the examination.

When this information was provided to Dr. Berman, it did not change

his opinion.

4 A-1954-16T3
 The ALJ found that Gechtman was "unable to perform the duties

and responsibilities of her general area of employment, which is

as a classroom teacher. Her ability to perform sedentary work is

clearly irrelevant for purposes of determining her eligibility for

a disability retirement pension, because her ordinary employment

is not sedentary." The ALJ reversed the Board's initial decision.

The Board pointed out that, unlike with lay witnesses, it

need not defer to the ALJ on the credibility of expert witnesses.

ZRB, LLC v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 531, 561

(App. Div. 2008); see N.J.S.A. 52:14B-10(c) (allowing the Board

to reject an ALJ's credibility findings with regard to a lay

witness only if those findings are arbitrary, capricious or

unreasonable or unsupported by sufficient credible evidence).

The Board rejected the ALJ's credibility findings with regard

to the experts, determining the ALJ rejected Dr. Berman's findings

with insufficient explanation. The Board believed the ALJ should

have weighed the different credentials of the two experts as Dr.

Berman was a board-certified orthopedist while Dr. Weiss was a

doctor of osteopathy who was not a board-certified orthopedist.

Most importantly, the Board found that the ALJ found only that

Gechtman could not perform the duties of her actual job, rather

than the job for which she was hired.

5 A-1954-16T3
 Our review of administrative agency action is limited. 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).

"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, however, "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)).

The burden of proof of ordinary disability lies with the

employee. Bueno v. Bd. of Trs. Teachers' Pension & Annuity Fund,

404 N.J. Super. 119, 126 (App. Div. 2008), certif. denied, 199

N.J. 540 (2009). The employee "must establish incapacity to

perform duties in the general area of [her] ordinary employment

rather than merely showing inability to perform the specific job

for which [she] was hired." Skulski v. Nolan, 68 N.J. 179, 205-

06 (1975).

6 A-1954-16T3
 The duties of a classroom teacher are defined as follows:

To assist students to fulfill their potential
for intellectual, emotional, physical and
psychological growth, and to provide them with
the knowledge and skills essential for full
participation as responsible citizens.

No physical requirements are included in this job description. As

the ALJ noted, the description tells what should be done, but not

how. Presumably, the job could be performed by an employee who

utilizes a wheelchair to ambulate. Although Gechtman performed

her particular job with significant physical effort, she did not

demonstrate that standing for long periods of time, climbing

stairs, sitting on the floor and carrying things were necessary

to teach young children in other settings.

We note that people in their mid-sixties frequently have

physical limitations such as those experienced by Gechtman. The

Board has the obligation to safeguard pension resources. In re

Town of Harrison, 440 N.J. Super. 268, 300 (App. Div. 2015).

We must affirm an administrative decision even if we might

have decided differently. Campbell v. N.J. Racing Comm'n, 169

N.J. 579, 587 (2001). The Board determined, in essence, that no

particular physical strength or mobility was required to perform

the kindergarten through eighth-grade teaching job. Thus,

regardless of the derivation of Gechtman's injury, or the

7 A-1954-16T3
credibility of the experts, she is not disabled. We defer to the

Board's expertise.

Affirmed.

8 A-1954-16T3