NOT FOR PUBLICATION WITHOUT THE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-2114-15T4
MAXINE WAGNER,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC
EMPLOYEES' RETIREMENT
SYSTEM,
Respondent-Respondent.
________________________________________________
Argued October 16, 2017 – Decided December 1, 2017
Before Judges Messano, Accurso, and Vernoia.
On appeal from the Board of Trustees, Public
Employees' Retirement System, PERS No. 853260.
Samuel M. Gaylord argued the cause for
appellant (Gaylord Popp, LLC, attorneys; Mr.
Gaylord, on the brief).
Christina Levecchia, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Levecchia, on the brief).
PER CURIAM
Maxine Wagner appeals from a final determination of the Board
of Trustees, Public Employees' Retirement System (the Board),
denying her application for accidental and ordinary disability
retirement benefits. We discern the following facts from the
record.
Wagner was employed as a "charge nurse" at Trenton Psychiatric
Hospital, where she supervised about thirty patients, distributed
medication, and was required to lift, move and position patients
as needed. In September 1994, Wagner was injured and knocked
unconscious when she was hit in the head by a medication cart.
Thereafter, she experienced impaired memory and word retrieval.
In 1995, Wagner was discharged from Trenton Psychiatric for being
a "no call, no show" employee for five days.
Two years later, Wagner began working part-time as a
psychiatric nurse at Capital Health System-Fuld campus, where she
oversaw fewer patients in a less strenuous environment. She worked
there until 2012.
In May 2006, Wagner applied for accidental disability
retirement benefits, claiming disability from the 1994 incident.
In July 2010, the Board denied her application. She appealed and
the matter was transferred to the Office of Administrative Law.
At the hearings on the matter, an Administrative Law Judge
(ALJ) heard testimony from competing experts: Dr. Stephanus
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Busono, a Board-certified neurologist, for petitioner; and Dr.
Thomas Bills, a Board-certified orthopedic surgeon, and Dr. Jonas
Gopez, a Board-certified neurosurgeon, for the Board. Dr. Busono
found Wagner suffered from various brain and spinal injuries
stemming from the 1994 incident and was incapable of resuming
employment with duties comparable to a charge nurse at Trenton
Psychiatric. Dr. Bills testified Wagner had degenerative disc
disease, which was aggravated in 1994, but Wagner was capable of
performing the duties of a charge nurse with only limited
exceptions. Dr. Gopez did not find Wagner totally and permanently
disabled and noted her employment at Capital Health, as he doubted
a "medical institution would hire someone that they didn't think
had the mental capacity to treat patients."
The ALJ recommended the Board deny Wagner accidental and
ordinary disability retirement benefits. The ALJ accepted the
conclusions of Dr. Bills and Dr. Gopez that "the petitioner was
not permanently and totally disabled[,]" and emphasized
"petitioner was disabled temporarily in 1994 after the incident;
however, after treatment she returned to work as a registered
nurse, and maintained that position until 2012. Her job duties
[at Capital Health] were not so dissimilar from the position
. . . at [Trenton Psychiatric] so that it could be said she was
not capable of working as a registered nurse." The Board adopted
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the ALJ's recommendation and this appeal followed. During the
pendency of this appeal, the Board twice reconsidered Wagner's
application, and twice affirmed its decision.
Appellant provided the following arguments for our
consideration.
POINT I
THE BOARD[']S DECISION UPHOLDING [THE ALJ'S]
OPINION IS ARBITRARY, CAPRICIOUS, AND
UNREASONABLE AS A REVIEW OF THE RECORD REVEALS
THE JUDGE'S FINDINGS TO BE MISTAKEN AND
LACKING FAIR SUPPORT IN THE RECORD ALLOWING
THIS COURT TO REVERSE ITS DECISION AND GRANT
PETITIONER AN ORDINARY DISABILITY PENSION.
POINT II
MS. WAGNER HAS SUSTAINED HER BURDEN OF PROOF
AND ESTABLISHED THAT SHE IS PERMANENTLY AND
TOTALLY DISABLED FROM PERFORMING HER REGULAR
AND ASSIGNED DUTIES.
We have considered these arguments and affirm.
Our review from a final decision of an administrative agency
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)). 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, supra, 192 N.J. at 27-28). We accord deference
to the credibility determinations of the ALJ, who had the
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opportunity to hear the testimony of the witnesses and consider
the exhibits, Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587
(1988), and we may 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)). However, we are not bound by the agency's
statutory interpretation or other legal determinations. Russo,
supra, 206 N.J. at 27.
To qualify for ordinary disability retirement benefits under
N.J.S.A. 43:15A-42, a public employee must demonstrate he or she
is "physically or mentally incapacitated for the performance of
duty and should be retired." The petitioner bears the burden of
proving permanent and total disability from performing their
normal employment duties. 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). Our courts have adopted an
intermediate test, whereby a petitioner need not prove they are
"generally unemployable" or "disabled from performing the specific
functions for which [they were] hired[,]" Getty v. Prison Officers'
Pension Fund, 85 N.J. Super. 383, 390 (App. Div. 1964), but rather,
"[t]he criterion is whether or not [the petitioner] is employable
in the general area of [their] ordinary employment." Skulski v.
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Nolan, 68 N.J. 197, 205-06 (1975) (quoting Getty, supra, 85 N.J.
Super. at 390).
We applied the Skulski standard in Bueno, which involved a
claim for ordinary disability retirement benefits. Bueno, supra,
404 N.J. Super. at 122. Bueno, a teacher, suffered an "adjustment
disorder" from various conditions specific to the school where she
was employed for several years. Id. at 123-24. As a result,
Bueno retired and applied for ordinary disability retirement
benefits. Id. at 122. The Board denied her application,
concluding she was capable of teaching in a different school with
a more supportive environment. Id. at 124. We affirmed the
Board's decision because Ms. Bueno "failed to . . . prove that she
was disabled from teaching for other employers." Id. at 131. We
held, "where a public employer has no other work for a public
employee disabled from performing his or her assigned job duties,
such an employee must at a minimum prove an 'incapacity to perform
duties in the general area of his ordinary employment' for other
employers and may even be required to prove 'inability to perform
substantially different duties or . . . produce evidence of general
physical [or mental] unemployability.'" Ibid. (quoting Skulski,
supra, 68 N.J. at 206).
Applying Skulski and Bueno, and guided by our limited scope
of review, we discern no error in the Board's decision. The ALJ
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weighed the expert testimony and concluded Dr. Bills' and Dr.
Gopez's opinions regarding petitioner's condition and ability to
work as a nurse were more persuasive than those presented by Dr.
Busono. The Board agreed with the ALJ's findings on these points.
Petitioner bore the burden of proving by a preponderance of the
credible evidence that she is "physically or mentally
incapacitated for the performance of duty and should be retired."
However, as noted by the ALJ, the evidence demonstrates Wagner was
"employable in the general area of [her] ordinary employment,"
registered nursing, Skulski, 68 N.J. at 205-06 (quoting Getty,
supra, 85 N.J. Super. at 390), and was so employed for over a
decade after leaving Trenton Psychiatric. Because the Board's
determination was amply supported by credible evidence and is
neither arbitrary, capricious, nor unreasonable, we affirm.
Affirmed.
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