SHERRY ROGERS v. PUBLIC EMPLOYEES RETIREMENT SYSTEM (2013)

Petitioner Sherry Rogers appeals the final administrative action of the Board of Trustees of the Public Employees' Retirement System (PERS), denying her application for a disability pension.   We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Rogers applied for disability retirement in August 2008, alleging that she was disabled from performing her usual duties because of the “[p]ainful effects of neuropathy in both legs and feet.”   The PERS Board of Trustees (Board) determined that she was not totally and permanently disabled and denied her application in November.   Rogers appealed and the matter was sent to the Office of Administrative Law (OAL) for hearing by an administrative law judge (ALJ) as a contested case.

The OAL hearing was held in January 2011.   The ALJ heard testimony from Rogers and the Board's medical expert, Arnold Witte, M.D. He also heard videotaped testimony from Rogers' medical expert, Aissa Alexeeva, M.D. The ALJ issued his initial decision on October 13, 2011.   He found that Rogers had failed to prove that her disability was permanent, and consequently recommended that the Board's original decision be affirmed.   Neither party filed exceptions to the ALJ's decision.   The Board adopted his decision on November 9. This appeal followed.¹

II.

On appeal, Rogers argues that the ALJ's initial decision, which was adopted by the Board as its final administrative agency decision, was not supported by the testimony of the expert witnesses.   She also argues that her prior attorney rendered ineffective assistance of counsel.

Our scope of review of an administrative agency's final determination is limited.  In re Carter, 191 N.J. 474, 482 (2007).   We accord a “strong presumption of reasonableness” to the agency's exercise of its statutorily delegated responsibilities.  City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L. Ed.2d 245 (1980).   The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant.   See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J.Super. 276, 285 (App.Div.1986), aff'd, 107 N.J. 355 (1987).

The reviewing court “should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law;  (2) the decision was arbitrary, capricious, or unreasonable;  or (3) the decision was not supported by substantial evidence.”   In re Application of Virtua–West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008);  see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9–10 (2009).   Nevertheless, an appellate court is “in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.”  Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, “[a]n administrative agency's final quasi-judicial decision will be sustained.”  In re Herrmann, 192 N.J. 19, 27–28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).   The court “may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result,” but is “obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs.”  In re N.J. Pinelands Comm'n Resolution PC4–00–89, 356 N.J.Super. 363, 372 (App.Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

In reviewing administrative adjudications, an appellate court must undertake a “careful and principled consideration of the agency record and findings.”   Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985) (citing Mayflower Sec. Co., supra, 64 N.J. at 93).  “If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.”   Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).   If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not entitled to judicial deference and must be set aside.  L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995).   We may not simply rubber-stamp an agency's decision.  In re Taylor, 158 N.J. 644, 657 (1999).

We recognize that “the public pension systems are bound up in the public interest and provide public employees significant rights which are deserving of conscientious protection.”  Zigmont v. Bd. of Trs., Teachers' Pension & Annuity Fund, 91 N.J. 580, 583 (1983).  “[P]ension statutes are ‘remedial in character’ and ‘should be liberally construed and administered in favor of the persons intended to be benefited thereby.’ ”  Klumb v. Bd. of Educ., 199 N.J. 14, 34 (2009) (quoting Geller v. N.J. Dep't of Treasury, Div. of Pensions & Annuity Fund, 53 N.J. 591, 597–98 (1969)).   Pension statutes must also be liberally construed in favor of public employees because they represent deferred compensation for a government employee's service.  Widdis v. Pub. Emp. Ret. Sys., 238 N.J.Super. 70, 77–78 (App.Div.1990).   Finally, a pension board must deal fairly with its members.   See Fiola v. N.J. Dep't of Treasury, Div. of Pensions, Police & Firemen's Ret. Sys., 193 N.J.Super. 340, 351 (App.Div.1984).

The ALJ credited Rogers' testimony that she was unable to work as a result of the “progressively worsening weakness and pain in her legs, swelling, stabbing pain and pain progressing up her legs.”   He nevertheless recommended that her application be denied because both medical witnesses concluded that there was, in Alexeeva's words, “no evidence of neuropathy or radiculopathy” following extensive testing.   The ALJ pointed to the fact that Alexeeva signed a medical form stating that Rogers' condition was likely “idiopathic” and that she might improve sufficiently to perform her duties because the cause of the pain was not known.   He also pointed to Witte's unwillingness to find a permanent disability because, there being no diagnosis of a specific structural disease, Witte could not determine that the symptoms were permanent.   We are satisfied that the ALJ's characterization of the experts' testimony is accurate, although for the purposes of completeness, we note in addition that Alexeeva opined that Rogers' condition appeared to be “permanent” and “progressive” and that Rogers “probably would be permanently disabled due to this pain syndrome.”

N.J.S.A. 43:15A–42 provides for a disability retirement when the PERS member is “physically or mentally incapacitated for the performance of duty and should be retired.”   We agree with the ALJ that there must be a finding of permanency, even though that term is not used in the statute.   Disability pensions are not intended to provide coverage for temporary disabilities, which are addressed through programs such as sick leave and temporary disability benefits.

The record contains medical testimony that Rogers' symptoms could have a psychiatric or psychological basis, such as depression.   However, Rogers did not offer testimony from any experts in those fields and did not make a claim on that basis.   In addition, although both Rogers and Alexeeva testified to Rogers' history of depression and use of anti-depressant medication, the record does not indicate that depression or other potential psychiatric or psychological conditions were explored as the sources of her symptoms, or that avenues of treatment for such conditions were tried as a means to address and alleviate the symptoms.

Because (1) the medical witnesses could not identify the cause of Rogers' symptoms from a medical perspective and (2) possible causes and treatments from a psychiatric or psychological perspective apparently were not explored, we conclude that the Board's decision to adopt the ALJ's opinion was not arbitrary, capricious, or unreasonable, and that it was supported by sufficient evidence in the record.²

Having reviewed Rogers' remaining arguments, we find them to be without merit and not warranting discussion in a written opinion.   R. 2:11–3(e)(1)(E).

Affirmed.

FOOTNOTES

FN1. After Rogers' brief and appendix were filed, the Board moved to strike a document in her appendix and related argument in her brief because the document, a decision of the United States Social Security Administration, was not part of the record before the ALJ. We granted the Board's motion and denied Rogers' subsequent motion for reconsideration..  FN1. After Rogers' brief and appendix were filed, the Board moved to strike a document in her appendix and related argument in her brief because the document, a decision of the United States Social Security Administration, was not part of the record before the ALJ. We granted the Board's motion and denied Rogers' subsequent motion for reconsideration.

FN2. Inasmuch as her application was rejected, in part, because avenues of cause and treatment from a psychiatric or psychological perspective were not explored, we expect that the Board would consider a new application based upon additional evidence along those lines..  FN2. Inasmuch as her application was rejected, in part, because avenues of cause and treatment from a psychiatric or psychological perspective were not explored, we expect that the Board would consider a new application based upon additional evidence along those lines.

PER CURIAM