TAMARA HORUN VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' 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NOT FOR PUBLICATION WITHOUT THE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-4322-19

TAMARA HORUN,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC
EMPLOYEES' RETIREMENT
SYSTEM,

Respondent-Respondent.
_____________________________

Argued December 9, 2021 – Decided December 20, 2021

Before Judges Haas and Mawla.

On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of
Treasury, PERS No. x-xxxx655.

Samuel M. Gaylord argued the cause for appellant
(Gaylord Popp, LLC, attorneys; Samuel M. Gaylord, on
the brief).

Matthew Melton, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Sookie Bae-Park, Assistant
 Attorney General, of counsel; Matthew Melton, on the
brief).

PER CURIAM

Appellant Tamara Horun appeals from the June 18, 2020 final

determination of the Board of Trustees of the Public Employees' Retirement

System (Board) denying her application for ordinary disability retirement

benefits under N.J.S.A. 43:15A-42. We affirm.

In 2012, appellant began working as a charge nurse at the Hunterdon

Developmental Center (Hunterdon). Appellant claimed she experienced back

and neck pain throughout her employment. In February 2015, Hunterdon

assigned new duties to appellant which required her to change offices . Shortly

thereafter, appellant left her job on unpaid leave. Two years later, she applied

for ordinary disability retirement benefits.

On February 23, 2018, the Board informed appellant her application was

denied because she was not totally and permanently disabled. Appellant filed

an administrative appeal and the Board referred the matter to the Office of

Administrative Law for a hearing before an Administrative Law Judge (ALJ).

At the hearing, appellant's orthopedic expert, Dr. Arthur Becan, testified

appellant could not perform the duties of a charge nurse due to cervical disc

bulges, herniated discs, and other chronic sprains and impairments in her back,

A-4322-19
2
shoulders, and knees. However, Becan based his diagnoses on MRIs from 2011

and 2013 even though MRIs from 2015 and 2016 did not show the conditions

Becan believed were disabling appellant. Becan also failed to review a 2015 CT

scan that did not show any herniation in appellant's discs and a report prepared

by Dr. Christopher Castro, who examined appellant in 2016 and found she could

return to work "full-time" for "full-duty." Becan's findings were also

inconsistent with those Dr. Vito Loguidice set forth in a 2016 report, where

Loguidice found appellant was able to return to work.

The Board's orthopedic expert, Dr. Jeffrey Lakin, examined appellant and

found no objective evidence to support a finding of total and permanent

disability. Lakin testified that although appellant complained of pain in her left

leg and lower back, she had excellent range of motion and her motor and sensory

functions were all intact. According to Lakin, the two most recent MRIs showed

some "right sided pathology[,]" which did not correlate with appellant's

subjective complaints of pain in her left side. Lakin also reviewed Castro's and

Loguidice's reports and agreed with their determination that appellant was not

disabled.

The ALJ issued an initial decision concluding that Lakin's testimony was

more persuasive than Becan's testimony. The ALJ wrote:

A-4322-19
3
 In matters such as this, often the case comes
down to conflicting expert testimony. The undersigned
must decide which expert offered the more credible
opinion. In the instant matter, that expert must be Dr.
Lakin.

Dr. Lakin testified in a straightforward, direct,
and professional manner. More importantly, he based
his opinion upon his physical examination of
[appellant] and his review of all of [appellant's] medical
records. Importantly, Dr. Lakin reviewed records that
[appellant's] expert, Dr. Becan, did not review, records
from Dr. Castro. Dr. Lakin's opinion was more in
comport with [appellant's] medical records.

Dr. Becan diagnosed [appellant] with cervical
spine conditions based upon outdated MRI reports from
2011 and 2013, when more recent MRIs were available.
Nonetheless, Dr. Becan admitted that the 2015 and
2016 MRIs do not correlate with [appellant's] left-sided
symptoms. He did not review the report of Dr. Castro,
one of [appellant's] physicians. He also did not review
a CT scan from 2015.

I must defer to Dr. Lakin as the more credible
expert witness.

Accordingly, the ALJ concluded the Board "properly denied [appellant's]

application for ordinary disability retirement benefits." The Board thereafter

adopted the ALJ's findings of fact and conclusions of law as its final decision.

On appeal, appellant asserts the Board should have disregarded Lakin's

opinions in favor of those presented by her expert. She also argues the evidence

supported her claim of total and permanent disability. We disagree.

A-4322-19
4
 "Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re

Herrmann, 192 N.J. 19, 27 (2007)). "An administrative agency's final quasi-

judicial decision will be sustained 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). Our review of an agency's decision

is limited to considering:

(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.

[In re Proposed Quest Acad. Charter Sch. of Montclair
Founders Grp., 216 N.J. 370, 385-86 (2013) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

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." In re Taylor, 158 N.J.

644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). With

regard to expert witnesses, we rely upon the ALJ's "acceptance of the credibility

of the expert's testimony and the [judge's] fact-findings based thereon, noting

A-4322-19
5
that the [judge] is better positioned to evaluate the witness'[s] credibility,

qualifications, and the weight to be accorded [to his or] her testimony." In re

Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc.

v. Epstein, 115 N.J. 599, 607 (1989)).

We are required to affirm an agency's findings of fact if "supported by

adequate, substantial and credible evidence . . . ." Taylor, 158 N.J. at 656-57

(quoting Rova Farms Resort, Inc. v. Inv's. Ins. Co., 65 N.J. 474, 484 (1974)).

Moreover, if we are "satisfied after [our] review that the evidence and the

inferences to be drawn therefrom support the agency head's decision, then [we]

must affirm even if [we] feel[] that [we] would have reached a different result

. . . ." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

N.J.S.A. 43:15A-42 provides that a Public Employees' Retirement System

member is eligible for ordinary disability retirement benefits if he or she is

"physically or mentally incapacitated for the performance of a duty and should

be retired." The member must establish "that he or she has a disabling condition

and must produce expert evidence to sustain this burden." Bueno v. Bd. of Trs.,

Tchrs.' Pension & Annuity Fund, 404 N.J. Super. 119, 126 (App. Div. 2008)

(citing Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 50-51

(2008)). The applicant must also show that the disabling condition is total and

A-4322-19
6
permanent. See Patterson, 194 N.J. at 43; Bueno, 404 N.J. Super. at 124. In

addition, "[t]o qualify for disability retirement, a member must be unable to

perform his or her regular and assigned duties due to a permanently disabling

medical condition present at the time the member separates from service, as a

result of which disabling condition the member should be retired." N.J.A.C.

17:2-6.1(f)(3).

Applying our highly deferential standard of review, we are satisfied the

record amply supports the Board's determination that appellant failed to show

she qualified for ordinary disability benefits pursuant to N.J.S.A. 43:1 5A-42.

The Board adopted the ALJ's findings of fact, which were based on his

assessment of the credibility of the expert testimony. We must give appropriate

deference to the ALJ's and the Board's findings where, as here, those findings

are based on sufficient credible evidence in the record. Taylor, 158 N.J. at 658-

59.

Affirmed.

A-4322-19
7