MAXINE WAGNER v. BOARD OF TRUSTEES, 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NOT FOR PUBLICATION WITHOUT THE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-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.



                                       5                             A-2114-15T4
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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