NOT FOR PUBLICATION WITHOUT THE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-5059-18T2
ALONZO HERRAN,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,
Respondent-Respondent.
______________________________
Submitted September 30, 2020 — Decided October 9, 2020
Before Judges Mawla and Natali.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of Treasury,
PFRS No. 3-10-55607.
Fusco & Macaluso Partners, LLC, attorneys for
appellant (Amie E. DiCola, on the brief).
Robert Seymour Garrison, Jr., attorney for respondent
(Alison Keating, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant Alonzo Herran appeals from a June 11, 2019 final decision by
respondent the Board of Trustees, Police and Fireman's Retirement System
(Board) denying his request to re-open and change his retirement designation
from an ordinary disability retirement to an accidental disability retirement. We
affirm.
Appellant was employed as a City of Newark police officer for fifteen
years. His tenure was marked by multiple violations of the Newark Police
Department's Rules and Regulations and the Civil Service Commission's Rules.
In 2012, the City filed disciplinary charges against appellant for allegedly
striking a civilian with the butt of his gun while off-duty and lying to superiors
about his actions.
On July 29, 2016, the City filed disciplinary charges alleging "neglect of
duty," "malingering," and "feigning sickness or injury" because appellant posted
photos of himself on Facebook on vacation while on sick leave. Appellant's
employment was terminated on September 27, 2016. He appealed the
termination three days later, resulting in a reduction of the termination to a
suspension from employment.
On June 2, 2017, appellant applied for ordinary disability retirement
benefits, effective February 1, 2018. The City advised the Board appellant was
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ineligible for benefits because of the pending disciplinary charges. In January
2018, appellant and the City settled the 2012 charges and the City withdrew the
2016 charges. On May 15, 2018, the Board approved appellant's application,
effective February 1, 2018.
On January 11, 2019, appellant asked the Board to reopen his retirement
application to obtain an accidental disability retirement. He certified he was
injured while detaining a suspect on March 9, 2016. He claimed he did not file
a report with his department because he did not require immediate medical
treatment but saw his doctor several days later when he began to develop chest
and shoulder pain. He certified he suffered from a left rotator cuff tear caused
by his work. Although appellant claimed he realized in the Fall of 2016 that his
pain was from the March 2016 incident, he certified as follows:
[B]ecause of the pending disciplinary proceedings
aga[]inst me, I did not want to make things worse for
myself over an incident I had never reported to my
department by filing for an accidental disability
retirement. That is why I selected the ordinary
disability option when I filed my application on June 2,
2017.
Appellant's request was denied on January 17, 2019, and he appealed to
the Board. Citing N.J.A.C. 17:4-6.3(a) and 17:4-6.7(b), the Board denied
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appellant's request because he did not apply for accidental disability prior to the
Board's approval of ordinary disability retirement benefits.
Appellant sought reconsideration and requested an administrative hearing,
which the Board denied. In its written findings, the Board found that appellant
had not demonstrated good cause to reopen the application. The Board also
denied the request for a hearing because the facts were undisputed, and relief
was barred by N.J.A.C. 17:4-6.3(a) and 17:4-6.7(b).
On this appeal, appellant repeats the arguments that he demonstrated good
cause to re-open his retirement submission and the matter should have been
submitted to an administrative law judge (ALJ) to adjudicate. He contends there
is no statutory bar to re-opening his application because N.J.A.C. 17:4-6.3(a)
permits him to withdraw, cancel, or change his retirement before it becomes
payable. He asserts respondent is not prejudiced by the change and the delay in
the submission was due to the pending disciplinary charges, and because he
wanted to do his due diligence and investigate his medical condition to confirm
he was disabled. Appellant claims he was uninformed about his ability to
change his application.
The "final determination of an administrative agency . . . is entitled to
substantial deference." In re Eastwick Coll. LPN-RN Bridge Program, 225 N.J.
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533, 541 (2016) (citing Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't
of Env't Prot., 191 N.J. 38, 48 (2007)).
An appellate court will not reverse an agency's final
decision unless the decision is "arbitrary, capricious, or
unreasonable," the determination "violate[s] express or
implied legislative policies," the agency's action
offends the United States Constitution or the State
Constitution, or "the findings on which [the decision]
was based were not supported by substantial, credible
evidence in the record."
[Ibid. (quoting Univ. Cottage Club of Princeton N.J.
Corp., 191 N.J. at 48).]
"Although an appellate court is 'in no way bound by the agency's interpretation
of a statute or its determination of a strictly legal issue,' if substantial evidence
supports the agency's decision, 'a court may not substitute its own judgment for
the agency's even though the court might have reached a different result.'" In re
Carter, 191 N.J. 474, 483 (2007) (internal citations omitted).
The regulations governing the arguments raised by appellant are clear.
N.J.A.C. 17:4-6.3(a) states:
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.
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Retirement allowances become due and payable thirty days after Board
approval. N.J.A.C. 17:4-6.2.
N.J.A.C. 17:4-6.7(b) states: "Once the Board approves a member for a
disability retirement allowance, the member's retirement application shall not be
withdrawn, canceled or amended." The Board can reopen a pension proceeding
if the retiree demonstrates "good cause, reasonable grounds, and reasonable
diligence . . . ." Steinmann v. N.J. Dep't of Treasury, Div. of Pensions, Tchrs.
Pension & Annuity Fund, 116 N.J. 564, 573 (1989).
Appellant did not demonstrate good cause. His initial request to reopen
his retirement application acknowledged he "could have initially applied for the
accidental disability." However, he decided not to do so in order to not "make
things worse for [himself in the pending disciplinary proceedings] over an
incident [he] had never reported." Appellant's strategy was understandable
because considering his disciplinary history and the pending charges, he wanted
to assure his receipt of a disability retirement even though an accidental
disability retirement would pay him more. Indeed, although accidental
disability retirees receive a greater payment, "ordinary disability retirement need
not have a work connection." Patterson v. Bd. of Trs., State Police Ret. Sys.,
194 N.J. 29, 42 (2008) (citations omitted).
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Appellant possessed the evidence necessary to submit an accidental
disability retirement application in a timely fashion and deliberately chose not
to do so. His assertion the decision was borne of a need to gather medical
evidence is unsupported by the record and appellant's own representations to the
Board.
Appellant's assertion his decision was uninformed because he was
unrepresented by counsel lacks merit. The record reflects appellant had counsel
as of September 2017, several months prior to the May 2018 Board approval of
his application for ordinary disability retirement.
Finally, a hearing is "mandated only when the proposed administrative
action is based on disputed adjudicatory facts." In re Farmer's Mut. Fire
Assurance Ass'n of N.J., 256 N.J. Super. 607, 618 (App. Div. 1992); see also
N.J.A.C. 17:4-1.7(e) (permitting the Board to retain the matter and issue an
administrative determination where an appeal "involves solely a question of
law."). We agree there were no disputed facts requiring adjudication before an
ALJ. The reasons for appellant's actions were not disputed and this matter
concerned whether those undisputed facts gave rise to the good cause necessary
for relief pursuant to N.J.A.C. 17:4-6.3(a). They did not.
Affirmed.
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