KATHLEEN STARLING v. TEACHERS' PENSION AND ANNUITY FUND LINDEN BOARD OF EDUCATION

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0450-07T10450-07T1

KATHLEEN STARLING,

Appellant,

v.

TEACHERS' PENSION AND

ANNUITY FUND,

Respondent.

________________________________

LINDEN BOARD OF EDUCATION,

Intervenor-Respondent.

________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from a Final Agency Decision of the Teachers' Pension and Annuity Fund, Agency Docket No. 435078.

Kathleen Starling, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Teachers' Pension and Annuity Fund (Melissa H. Raksa, Assistant Attorney General, of counsel; Danielle P. Bradus, Deputy Attorney General, on the brief).

Weiner Lesniak, LLP, attorneys for intervenor Linden Board of Education (Mark A. Tabakin, of counsel and on the brief; Rachel M. Caruso, on the brief).

PER CURIAM

Pro se appellant Kathleen Starling appeals from the decision of the Board of Trustees of respondent Teachers' Pension and Annuity Fund (TPAF) granting the application for involuntary ordinary disability retirement benefits filed by the Linden Board of Education (Linden) on her behalf. The Board adopted the recommendations of an administrative law judge (ALJ) that appellant is totally and permanently disabled from performing her regular and assigned duties as a teacher. We affirm.

The following facts are relevant to this appeal. In September 1999, appellant was transported from her teaching job to the hospital on an emergency basis and involuntarily hospitalized. She was subsequently diagnosed with Bipolar Disorder and Narcissistic Personality Disorder with poor impulse control and poor logical reasoning. She refused treatment.

Appellant returned to work and caused various disruptions. As a result, Linden required her to undergo a psychiatric evaluation in 2005, and placed her on paid administrative leave pending the evaluation. The evaluation confirmed the diagnosis of Bipolar Disorder and Narcissistic Personality Disorder. Linden notified appellant that she could return to work in September 2005, provided she participate in counseling and take prescribed medication. Appellant returned to work and began treatment with a licensed clinical social worker. At the end of October 2005, the social worker notified Linden that appellant's condition had deteriorated, she was totally and permanently disabled, she could not perform her job functions, and her prognosis was poor. Appellant was placed on administrative leave in November 2005. In December 2005, Linden filed for involuntary disability retirement on appellant's behalf.

The TPAF Board approved Linden's application. Appellant appealed the Board's decision. The Board then transferred the case to the Office of Administrative Law for a hearing as a contested case. An Administrative Law Judge (ALJ) held a two-day plenary hearing at which Dr. Robert Latimer testified on behalf of the Board as an expert in psychiatry. Dr. Latimer opined that Starling "is functioning at a level below 50 according to DSM-4, which is the Diagnostic and Statistical Manual of the American Psychiatric Association. And 50 corresponds with serious psychiatric symptoms, which interfere socially and industrially." Dr. Latimer also testified that appellant

suffers from a Psychotic Disorder. I clarify that she has a history of having being diagnosed as Bipolar Disorder and there are many symptoms that I found are more consistent with a more serious process than Bipolar Disorder which we call the "Schizo-Affective Disorder."

The Scizo-Affective Disorder is a variation of Schizophrenia, in which the prominent symptoms are changes in mood and behavior, rather than delusions and hallucinations.

And it is [] my opinion from review of the records that she has suffered from this condition for a substantial period of time, and that she has mixed symptoms of Bipolarity, which is typical of the Schizo-Affective type of Schizophrenia.

She has had a tendency towards, religiosity-not religion, but religiosity which is considered a more- a[n] idiosyncratic of - of a psychiatric condition. Her condition has - it has not been characterized by ups and downs as the Bipolar usually do, but rather it had been uninterrupted, according the records that I read.

There's a mixture of moods and psychotic symptoms which diminishes her functional capacity, constricts her interests, including her social life. She appears to lack, from the history, pleasurable activities and she gives a history of substantial losses in her personal life, including the death of three siblings in tragic circumstances, which were not clarified in my examination.

And one of her treating professionals mentioned that at times she was paranoid, meaning that she was suspicious or that she was grandiose in her behavior.

Dr. Latimer concluded that appellant

suffers from a substantial Psychiatric Disorder which remains mostly untreated and that she cannot be relied on to treat herself because she lacks insight. And my concern is that she works with children and that she cannot function and run the teaching job smoothly and contribute to the smooth running of a school.

So, I think she's probably within a reasonable degree of psychiatric certainty totally and permanently impaired to discharge the duties of a teacher.

The ALJ credited Dr. Latimer's testimony. Although appellant testified, she did not present any medical evidence countering Dr. Latimer's testimony, she did not ask the doctor any questions on cross-examination, and she did not dispute his report. The ALJ found that:

Although [appellant] in her testimony denied that she is psychiatrically disabled, it was clear from her testimony that the difficulties referred to by both Dr. Latimer in his report and those designated in the DSM IV for those with a GAF at 50 or below were observable even to the layman.

The ALJ concluded that Dr. Latimer's undisputed testimony supported the Board's conclusion that appellant is totally and permanently disabled. The Board accepted the ALJ's recommendations. This appeal followed.

Our review of an administrative agency's decision is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to such a decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. In re Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); Brady, supra, 152 N.J. at 210-11; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); In re S.D., 399 N.J. Super. 107, 121 (App. Div. 2008); In re Boardwalk Regency Corp. and DiBartolomeo, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

"[I]t is not our function 'to substitute [our] independent judgment for that of [an] administrative' agency," such as the TPAF, "'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

Only when the agency's findings are clearly mistaken and "'so plainly unwarranted that the interests of justice demand intervention and correction'" that a reviewing court should "'make its own findings and conclusions.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001). (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

 
Based upon our careful review of the record, we conclude that this appeal lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add this comment. The credible evidence in the record confirms that appellant suffers from a serious psychiatric disorder rendering her totally and permanently unable to perform her regular and assigned duties as a teacher. The rambling and inapplicable arguments in her merits brief support this conclusion.

Affirmed.

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A-0450-07T1

March 18, 2009