ROBIN BAILEY v. POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3484-10T2

ROBIN BAILEY,

Petitioner-Appellant,

v.

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________________________

January 2, 2013

 

Submitted August 6, 2012 - Decided

 

Before Judges Ashrafi and Hayden.

 

On appeal from the Board of Trustees, Police and Firemen's Retirement System, Department of Treasury, PFRS#3-76561.

 

John Morelli, attorney for appellant.

 

Jeffrey S. Chiesa, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).

 

PER CURIAM

Petitioner Robin Bailey appeals the February 15, 2011 final determination of the Board of Trustees, Police and Firemen's Retirement System (the Board) denying her application for ordinary disability benefits. The Board determined that Bailey did not establish that she was permanently unable to perform her job as a police officer. For the reasons that follow, we affirm.

I.

The record reflects that Bailey began working as a police officer with the Township of Voorhees in 1995 and soon became a member of the Police and Firemen's Retirement System. On December 29, 2005, Bailey applied for an accidental disability pension, claiming she was permanently disabled from performing the duties of a police officer. She further claimed that her disability arose from two work-related incidents. In the first incident, Bailey was on traffic duty in 1996 when she was hit in the head by the side mirror of a passing car. In the second incident in 2005, she fell out of her chair and hit her head on a metal cabinet. Finding that the 1996 incident was a traumatic event but the 2005 accident was not, the Board denied her application for accidental disability benefits. The Board also found, based on an independent medical evaluation by Dr. Alexander Zlatnik, a neurologist, that Bailey was not totally and permanently disabled.

Bailey filed an administrative appeal of the Board's denial and the matter was referred to the Office of Administrative Law (OAL). After the hearing commenced, the Board's medical witness, Dr. Zlatnik, became unavailable to testify, and in 2010 the Board sent Bailey for another independent medical evaluation with Dr. Arnold Witte, a Board-certified neurologist. Upon receiving Dr. Witte's report, the Board reconsidered its decision and reaffirmed its conclusion that Bailey was not permanently disabled.

At the OAL hearing Bailey presented three fact witnesses who testified that they had noticed a deterioration of Bailey's memory, cognitive ability and ability to focus over the course of the past ten years. One witness, Keith Hummel, the Voorhees Chief of Police, testified that he had appointed Bailey to the position of crime prevention officer in 2000 because she was highly organized and needed little supervision. In 2004, Hummel began to notice that Bailey had problems with her memory and he had to remind her of her ordinary duties. Bailey requested and received some time off from the job, but her difficulties got worse when she returned. In the Chief's opinion, due to her memory problems and inability to focus, Bailey was unable to perform the duties of a police officer. Bailey went on maternity leave in June 2005 until December 2005, when she applied for disability pension benefits with the Division of Pensions and Benefits, and never returned to work.

In addition, Bailey testified that she had significant memory problems that started around 2000 and progressed to where her mind went "blank" while she was giving presentations. She noticed a considerable short term memory problem where she could remember events that occurred two weeks ago but not two minutes ago. Bailey consulted a number of doctors, who were unable to give a definitive diagnosis. Additionally, Bailey reported feeling very stressed during this time because she was unable to function at the high level required to be a police officer.

In 2007 she was evaluated twice by Dr. Lewis A. Lazarus, a neuropsychologist, who had examined her in 2001 concerning a 1998 accident. In his 2007 report Dr. Lazarus noted a significant decline in overall memory functioning compared to 2001 and concluded that she had symptoms of "cognitive dysfunction". He further opined, "[g]iven that the course of recovery following a concussion and mild traumatic brain injury would be expected to be one of improvement, the noted decline in functioning is certainly uncharacteristic, unusual, and not considered, within a reasonable degree of neuropsychological certainty, to be related to either of the accidents in 1996 or 1998." He concluded that, at the present time, Bailey was not functioning at an acceptable level to handle the responsibilities of a police officer. Dr. Lazarus encouraged Bailey to pursue cognitive remediation to assist in "possibly improving her noted deficient memory processes." Both Dr. Abrams and Dr. Witte relied on Dr. Lazarus's evaluation in forming their opinions.

Bailey's expert, Dr. Abrams, testified that he first saw her in November 2006 for complaints of memory loss and foggy thinking. She reported a head injury in 1996 and in 2005. When he next saw her in 2007, she reported that her memory problems had gotten worse. Dr. Abrams reviewed neuropsychological testing by Dr. Lazarus in 2001, which concluded that she had a neurological deficit, and Dr. Lazarus's re-evaluation of Bailey in 2007. On July 19, 2007, Dr. Abrams performed an EEG, which was normal.

At first, Dr. Abrams concluded that causation of the cognitive impairment was too difficult to determine, then that Bailey's symptoms were caused by the 1996 accident, and finally that her symptoms were caused by the two work-related head injuries as well as the 1998 non-work-related accident. Dr. Abrams further concluded that Bailey had a head injury which resulted in post-concussion syndrome with mild cognitive impairment rendering her unable to function as a police officer, even with reasonable accommodation. Lastly, he concluded that Bailey's cognitive or neurological impairment was permanent.

The Board's medical witness, Dr. Witte, testified that he evaluated Bailey as an independent medical evaluator for the Division of Pensions and Benefits on February 2, 2010. He also reviewed the extensive medical records, which included several EEGs, one of which showed a slight abnormality. In addition, he reviewed Dr. Lazarus's reports, which noted a decline in Bailey's functioning since 2001, which was incongruous with a concussion or mild traumatic brain injury, which generally improves over time. Dr. Witte agreed, observing that Bailey's reported symptoms were not consistent with mild head injuries. Dr. Witte remarked that Bailey's neurological exam on February 2, 2010, was normal but her response to speech was slow, which was not typical of an impaired memory.

While he ruled out neurological causes for her symptoms, Dr. Witte opined that Bailey could be suffering from depression or pseudo dementia rooted in depression, which were both treatable and not permanent conditions. He concluded that Bailey was not cognitively impaired, had no permanent disability, and was able to return to work as a police officer. He further opined that her main problems resulted from stress, depression or anxiety, and possibly a component of symptom magnification.

In his November 4, 2010 initial decision, the ALJ concluded that Bailey's condition was not due to work-related traumatic events and recommended a denial of accidental disability pension. He found Dr. Witte's testimony more persuasive on the issue of causation, noting that Dr. Abrams' conclusion that the 1996 head injury caused Bailey's disability was "more of a net opinion."

Addressing Bailey's eligibility for ordinary disability benefits, the ALJ credited Dr. Abrams' opinion that Bailey had a permanent cognitive impairment rendering her totally disabled. The ALJ found that Dr. Abrams' opinion was supported by the lay witnesses and that Dr. Witte's opinion was not corroborated. He also observed that Dr. Lazarus's opinion partially supported that of Dr. Abrams in finding that Bailey had some cognitive problems, although the judge acknowledged that Dr. Lazarus did not give an opinion as to permanency. In addition, the ALJ relied on Chief Hummel's testimony that Bailey could not function as a police officer, as he was "in the best position to determine whether petitioner could function as a police officer." The ALJ concluded that Bailey was entitled to ordinary disability benefits because she was incapable of performing the general duties of her job and was totally and permanently disabled.

On February 15, 2011, the Board issued its final agency decision, which accepted the ALJ's recommendation to deny the accidental disability pension but rejected his recommendation to grant the ordinary disability pension. Instead, the Board denied Bailey's application for an ordinary disability pension.

In considering whether Bailey was totally and permanently disabled, the Board adopted the finding of Dr. Witte, corroborated by Dr. Lazarus's report, that Bailey's complaints did not result from traumatic head injury. The Board further noted:

Dr. Witte, who, unlike Dr. Abrams, is a Board-certified neurologist, concluded within a reasonable degree of medical probability that Ms. Bailey was not disabled from her job as a police officer. With respect to her complaint of cognitive difficulty, he thought that "[i]t's not due to any kind of structural disease of the brain, either related to the injury back in 1996 or any other neurological problem." The major question that remained was whether the complaints represented symptoms of "a true neuro degenerative process unrelated to her head trauma" or the complaints had a psychological cause. If the complaints were secondary to a neurological degenerative disorder, contrary to Dr. Witte's considered opinion, then it could get worse, but "if this is a psychological issue, then it should be theoretically remedial." He characterized the possibility of a neurodegenerative process as "conceivable" but extremely unlikely, and he concluded with a reasonable degree of medical probability that Ms. Bailey's complaints have a psychological cause. When asked whether the complaints indicated that Ms. Bailey was unable to work at the time she was examined, Dr. Witte explained that the question could not be answered definitively without supplemental evaluations: "I think that if she's actually depressed she needs treatment and she has not sought treatment nor has anyone offered her treatment for that." Dr. Lazarus' addendum came to a similar conclusion: "The exact nature and root of her ailment remains unclear at present and whether there is a reversible cause to her difficulties has not been determined."

 

. . . .

The reports and testimony of Dr. Abrams are disregarded in their entirety, given his offering of a net opinion on the relation of Ms. Bailey's complaints to head trauma and his three mutually contradictory statements as to the causation of the alleged disability. The finding that Ms. Bailey is disabled is not given more weight than the ALJ gave his "net opinion" on causation. Other than the clearly inaccurate, unsupported diagnosis of head trauma made by Dr. Abrams and properly rejected by the ALJ, Ms. Bailey has presented no explanation of the nature of her affliction. Thus, she has failed to meet her burden of proof on an element of her claim that is essential to the determination whether her complaints are symptoms of a permanent disability.

 

This appeal followed.

II.

On appeal, Bailey concedes that she does not meet the requirements for an accidental disability pension but argues that the Board erred in rejecting the ALJ's findings that she did not prove a permanent and total disability entitling her to an ordinary disability pension.

Our review of an agency's decision is limited. In re Taylor, 158 N.J. 644, 656 (1999); Gerba v. Bd. of Trs., Pub. Emps. Ret. Sys., 83 N.J. 174, 189 (1980). Agency decisions are given a strong presumption of reasonableness, and we will generally not reverse such a decision unless it is arbitrary, capricious, or unreasonable, or it is not supported by evidence in the record. Thurber v. City of Burlington, 387 N.J. Super. 279, 301-02 (App. Div. 2006) (citations omitted), aff'd, 191 N.J. 487 (2007). The burden of proof in this regard rests upon the party challenging the agency's determination. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986)). An administrative board has the authority "to adopt, reject or modify the recommended report and decision of the ALJ, and an appellate court is only entitled to review those findings and recommendations in its overview of the record for the purpose of determining whether or not the Board's findings are supported by substantial credible evidence." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils. & Hackensack Water Co., 189 N.J. Super. 491, 507 (App. Div. 1983) (internal citation omitted) (citing In re Suspension of License of Silberman, 169 N.J. Super. 243, 255-56 (App. Div. 1979)).

However, where an ALJ makes factual findings by evaluating the credibility of lay witnesses, a pension board may not "sift through the record anew" to make a determination independently supported by credible evidence. Cavalieri v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004). Agency heads are required by N.J.S.A. 52:14B-10(c) to accord some deference to a judge's findings based on lay witnesses. See S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 484-85 (App. Div. 2002). However, the constraints of N.J.S.A. 52:14B-10(c) do not apply to an ALJ's findings based on expert testimony. ZRB, LLC v. N.J. Dep't of Envtl. Prot., Land Use Regulation, 403 N.J. Super. 531, 561 (App. Div. 2008). An administrative board may reject an ALJ's findings on an expert's methodology, provided it articulates its reasons for doing so. Id. at 562.

In order to qualify for an ordinary disability retirement, a member must satisfy the requirements of N.J.S.A. 43:16A-6(1), which provides that the member must be mentally or physically incapacitated from the performance of usual duty and of any other duty the member's department would assign, and that such an incapacity is likely to be permanent and to such an extent that the member should be retired. Applying our highly deferential standard of review, we conclude that there is substantial credible evidence in the record to support the Board's findings that Bailey failed to show entitlement to ordinary disability benefits.

In rejecting the ALJ's conclusion that Dr. Abrams' opinion was more persuasive that Dr. Witte's, the Board stated with particularity its reasons for doing so. When crediting Dr. Witte's opinion, the Board discussed his testimony and its support in the record. The Board also gave specific and coherent reasons for rejecting Dr. Abrams' opinions. Moreover, we agree with the Board that Chief Hummel was not qualified to determine if Bailey was permanently incapacitated from the performance of her duties.

We note that, contrary to Bailey's contention, the Board did not reject the ALJ's findings that the lay witnesses were credible. The Board's appropriate inquiry was not whether Bailey had the reported symptoms but whether they denoted a condition that was permanently and totally disabling. In this instance, the Board, relying on Dr. Witte's and Dr. Lazarus' opinions, found that proof of permanency of Bailey's condition required its cause be established. This proof was necessary because Bailey's symptoms could be caused by conditions that were treatable. Since the Board reasonably rejected Dr. Abrams' opinion that one or more mild head injuries were the cause, there was no credible evidence in the record that established likely causation and, thus, possible treatment.

U

nder this record, the Board's finding that Bailey failed to prove that she qualified for ordinary pension benefits is based upon sufficient credible evidence in the record. Taylor, supra, 158 N.J. at 658-59. Therefore, we affirm the final decision of the Board.