SUSANEDEN v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM -
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0449-16T1
SUSAN EDEN,
Petitioner-Appellant,
v.
PUBLIC EMPLOYEES' RETIREMENT
SYSTEM,
Respondent-Respondent.
______________________________
Argued January 10, 2018 – Decided March 1, 2018
Before Judges Alvarez and Currier.
On appeal from the Board of Trustees, Public
Employees' Retirement System, Docket No.
1002872
Samuel M. Gaylord argued the cause for
appellant (Gaylord Popp, LLC, attorneys;
Samuel M. Gaylord, on the brief).
Christina Cella, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Christina Cella, on the brief).
PER CURIAM
Petitioner Susan Eden appeals from the August 18, 2016 final
decision of respondent, the Board of Trustees of the Public
Employees' Retirement System (PERS), which adopted the June 23,
2016 initial decision of an Administrative Law Judge (ALJ)
affirming respondent's denial of petitioner's application for
ordinary disability retirement benefits. After a review of
petitioner's arguments, in light of the record and applicable
principles of law, we affirm.
Petitioner was enrolled in PERS on March 1, 1996, when she
became employed by the Camden County Health Services Center (Camden
County) as a licensed practical nurse (LPN). She remained employed
by Camden County until November 25, 2013, when petitioner was
dismissed due to a reduction in the work force.
Petitioner alleges that she suffered injuries due to several
work-related incidents between 2011 and 2013. In November 2011,
petitioner slipped and fell at work, causing pain in her lower
back and leg. She was released to full duty in February 2012. In
June 2013, while transferring a "very large patient" into a bed,
she felt sharp pain in her back. Petitioner states she attempted
to return to work, but was unable to perform her job duties and
she began to use her sick time. On November 4, 2013, petitioner
was released to full duty with no restrictions.
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After returning to full duty in November 2013, petitioner
states she had difficulty standing up from a kneeling position.
After a Functional Capacity Exam (FCE) was conducted,1 petitioner
was given a twenty-pound weight restriction at work. Nevertheless,
she states she continued to physically struggle while performing
her job and began to take sick days again.
On January 22, 2014, petitioner filed an application for
accidental disability retirement benefits based on the 2011 and
2013 incidents. On June 18, 2014, PERS denied petitioner's
application for accidental disability retirement benefits, finding
that she was not totally and permanently disabled from the
performance of her regular and assigned duties.
Petitioner appealed this denial and the matter was
transferred to the Office of Administrative Law (OAL) on August
21, 2014.2 Following petitioner's lay-off from her employment due
to a reduction in the work force, she accepted a position as an
LPN for a private company, Lincoln Specialty Care, where she works
two full shifts each weekend because there is "less demand and she
can work at her own pace."
1
The FCE indicated that petitioner "used sub-maximal effort and
magnified or exaggerated her symptoms and/or functional
limitations."
2
With respondent's consent, petitioner amended her application
to seek only ordinary disability benefits.
3 A-0449-16T1
After hearing testimony from petitioner, and orthopedic
surgeons on behalf of both parties, the ALJ issued an initial
decision on June 23, 2016. The ALJ found that the evidence
"indisputably" showed that petitioner could continue to work as
an LPN. In denying her application for ordinary disability
retirement, the ALJ reasoned:
the fact that [petitioner] is able to perform
duties in the general area of her ordinary
employment as a practical nurse while working
at Lincoln Specialty Care shows that she is
not physically incapacitated as a practical
nurse and, therefore, not entitled to an
ordinary disability retirement. While her
current position as a practical nurse may be
less physically demanding than her prior
public employment, she is able to perform
general duties as a practical nurse for full
shifts on back-to-back days.
PERS affirmed the ALJ's decision on August 18, 2016. On
appeal, petitioner argues that she is totally and permanently
disabled from the performance of her regular and assigned job
duties.
Our review of an administrative agency's decision is limited.
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
206 N.J. 14,
27 (2011). We will sustain the Board's decision "unless there is
a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Ibid. (quoting In
re Herrmann,
192 N.J. 19, 27-28 (2007)). As the reviewing court,
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we "may not substitute [our] own judgment for the agency's, even
though [we] might have reached a different result." In re
Stallworth,
208 N.J. 182, 194 (2011) (quoting In re Carter,
191 N.J. 474, 483 (2007)).
While we generally "afford substantial deference to an
agency's interpretation of [the] statute that the agency is charged
with enforcing[,]" we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly
legal issue." Richardson v. Bd. of Trs., Police & Firemen's Ret.
Sys.,
192 N.J. 189, 196 (2007) (first citing R&R Mktg., L.L.C. v.
Brown-Forman Corp.,
158 N.J. 170, 175 (1999), then quoting In re
Taylor,
158 N.J. 644, 658 (1999)). We review an agency's
interpretation of a statute or case law de novo. Russo,
206 N.J.
at 27.
Applying our highly deferential standard of review, we
conclude that there is substantial credible evidence in the record
to support respondent's finding that petitioner failed to
demonstrate an entitlement to ordinary disability retirement
benefits.
In order to qualify for ordinary disability retirement
benefits under
N.J.S.A. 43:15A-42, petitioner must establish by a
preponderance of the credible evidence that she is physically or
mentally incapacitated from performing her duties. "The applicant
5 A-0449-16T1
for ordinary disability retirement benefits has the burden to
prove that he or she has a disabling condition and must produce
expert evidence to sustain this burden." Bueno v. Bd. of Trs.,
Teachers' Pension & Annuity Fund,
404 N.J. Super. 119, 126 (App.
Div. 2008). She "must establish incapacity to perform duties in
the general area of [her] ordinary employment[,] rather than merely
show[] [an] inability to perform [her] specific job." Id. at 130-
31 (quoting Skulski v. Nolan,
68 N.J. 179, 205-06 (1975)).
In applying this standard, we are satisfied that petitioner
did not meet her burden. As the ALJ noted, while petitioner "may
not be able to perform some of the more physically demanding duties
. . . [of] a practical nurse, she has not shown that she cannot
physically perform other duties in the general area of the
position." The ALJ further found that petitioner's "employment
as a practical nurse . . . at Lincoln . . . shows that she is not
physically incapacitated from performing duties in the general
area of employment as a practical nurse." The ALJ also concluded
that the fact that petitioner "only works two days a week does not
alter the conclusion that [petitioner] is not physically
incapacitated as a practical nurse." Petitioner's own expert even
concluded that she was not totally and permanently disabled from
nursing.
6 A-0449-16T1
Having reviewed the record on appeal, we are satisfied that
petitioner failed to demonstrate that PERS' affirmance of the
ALJ's initial decision is arbitrary, capricious, or unreasonable,
or that it was not supported by substantial credible evidence in
the record. In finding that petitioner was not physically
incapacitated from performing duties in the general area of her
ordinary employment as a practical nurse, the ALJ assessed the
expert testimony presented by both parties. We must afford
appropriate deference to the ALJ's and PERS' findings, where, as
here, those findings are based on sufficient credible evidence in
the record. See Taylor,
158 N.J. at 658-59. Accordingly, there
is no basis to disturb respondent's decision.
Affirmed.
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