DONNACANCGLIN v. SCHOOL EMPLOYEES' HEALTH BENEFITS COMMISSION

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
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        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-3541-15T1


DONNA CANCGLIN,

        Appellant,

v.

SCHOOL EMPLOYEES' HEALTH
BENEFITS COMMISSION,

        Respondent.

____________________________________________

              Argued October 30, 2017 – Decided February 22, 2018

              Before Judges Messano, O'Connor and Vernoia.

              On appeal from the Division of Pensions and
              Benefits, School Employees' Health Benefits
              Commission, PERS No. 1006923.

              Ashley E. Malandre argued the cause for
              appellant (Zazzali, Fagella, Nowak,
              Kleinbaum & Friedman, attorneys; Richard A.
              Friedman, of counsel and on the brief;
              Marissa A. McAleer, on the brief).

              Danielle P. Schimmel, Deputy Attorney
              General, argued the cause for respondent
              (Christopher S. Porrino, Attorney General,
              attorney; Melissa H. Raksa, Assistant
              Attorney General, of counsel; Danielle P.
              Schimmel, on the brief).
PER CURIAM

    Petitioner Donna Cancglin appeals from the final

administrative determination of the School Employees' Health

Benefits Commission (Commission) concluding she is not eligible

to enroll into the retired group of the School Employees' Health

Benefits Program (SEHBP).   We affirm.

                                I

    Before her retirement in 2015, petitioner was a part-time

employee of the Pitman Board of Education (Board).   It is

unclear from the record how long she worked for the Board, but

it is not disputed she worked for it less than twenty-five

years.   Petitioner submitted an application to the Public

Employees' Retirement System (PERS) seeking an ordinary

disability retirement allowance due to a neurological disorder.

The Board of Trustees of PERS approved her application; benefits

were to commence on February 1, 2015.

    Before benefits started, petitioner applied to the Division

of Pensions and Benefits (Division) for enrollment into the

"retired group" of the SEHBP.   The SEHBP is a health benefits

program that provides certain health insurance coverage for

eligible individuals and their families.   See generally 
N.J.S.A.

52:14-17.46.1 through -17.46.11 (setting forth the general and

specific benefits to which eligible members are entitled).
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    On February 6, 2015, the Division approved her application

and enrolled her into the retired group.      However, on March 20,

2015, a Division pension benefits specialist notified petitioner

she had been enrolled into the retired group in error.      The

specialist explained petitioner was ineligible for coverage in

the retired group because she had not been a full-time employee

of the Board and had not been receiving health care benefits

from the Board before she retired.

     Petitioner administratively appealed the Division's

determination, arguing that, because she had retired on an

ordinary disability retirement allowance, she was entitled to

"State-paid health insurance coverage."      She further contended

that her eligibility for coverage was not dependent on her

having been a full-time employee or having received health care

benefits before retirement.

    The Division rejected petitioner's arguments.      It noted

that to receive health care benefits from the State, one must

have been an employee as defined by the applicable statute,


N.J.S.A. 52:14-17.46.2(d)(2), which defines the term "employee"

as one who was employed full-time, which means have worked

twenty-five hours a week or more.    Ibid.

    The Division further determined that, pursuant to N.J.A.C.

17:9-6.1, a "retiree" must have been eligible for health
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benefits before ending employment.    The Division noted that,

under N.J.A.C. 17:9-6.1(b)(3)(i) and (ii), a "retired employee"

includes those who are eligible for health benefit coverage,

were full-time employees as defined by N.J.A.C. 17:9-4.6, and

were eligible for group health plan coverage before leaving

employment.    Thus, the Division concluded that because

petitioner had neither been a full-time employee nor eligible

for the employer's health benefits while actively employed, she

was not eligible for health benefits coverage in the retired

group.

    Petitioner administratively appealed the Division's

determination to the Commission, asserting essentially the same

contentions.    The Commission rejected her arguments for the

reasons expressed by the Division.    Petitioner's subsequent

request for a fact-finding hearing before the Office of

Administrative Law was denied because there were no material

facts in dispute, but the Commission permitted petitioner to

provide argument on the legal issues before it issued a final

administrative determination.

    Petitioner again urged that, pursuant to 
N.J.S.A. 52:14-

17.32f and 
N.J.S.A. 52:14-17.32f1, a retiree receiving a

disability retirement allowance is eligible to receive health

benefits coverage in the retired group, without the condition a
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retiree have been a full-time employee and eligible to receive

health care benefits before retirement.

    The Commission denied petitioner benefits for the same

reasons previously espoused.

                                II

    On appeal, petitioner contends the Commission erred when it

determined she was not eligible for health benefits in the

retired group because she had not been employed full-time by the

Board and had not received employer-paid health insurance at the

time of retirement.   She maintains one who retires on an

ordinary disability retirement allowance is entitled to State-

paid health insurance without meeting these two conditions.

    Generally, courts afford substantial deference to an

agency's interpretation of a statute that the agency is charged

with enforcing.   R & R Mktg., L.L.C. v. Brown-Forman Corp., 
158 N.J. 170, 175 (1999) (quoting Smith v. Dir., Div. of Taxation,


108 N.J. 19, 25 (1987)).   An appellate court, however, is "in no

way bound by the agency's interpretation of a statute or its

determination of a strictly legal issue."   In re Taylor, 
158 N.J. 644, 658 (1999) (quoting Mayflower Sec. Co. v. Bureau of

Sec., 
64 N.J. 85, 93 (1973)).

    Petitioner cites various provisions of the New Jersey State

Health Benefits Program Act (Act), 
N.J.S.A. 52:14-17.25 to -46a,
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                                                            A-3541-15T1
in support of her position.    The Commission does not dispute the

cited provisions govern the issues; however, its interpretation

of such provisions differs from petitioner's.

    Petitioner argues 
N.J.S.A. 52:14-17.32f and 
N.J.S.A. 52:14-

17.32f1 define those eligible for State-paid health insurance

benefits and that she meets such definition, entitling her to

benefits.

    
N.J.S.A. 52:14-17.32f states, in relevant part,

            A qualified retiree from the Teachers'
            Pension and Annuity Fund . . . [is] eligible
            to participate in the State Health Benefits
            Program until June 30, 2008, and beginning
            July 1, 2008, in the School Employees'
            Health Benefits Program, regardless of
            whether the retiree's employer participated
            in the program.

            A qualified retiree is a retiree who:

                a. Retired on a benefit based on
                25 or more years of service
                credit;

                b. Retired on a disability pension
                based on fewer years of service
                credit; or

                c. Elected deferred retirement
                based on 25 or more years of
                service credit and who receives a
                retirement allowance.

            [
N.J.S.A. 52:14-17.32f (Emphasis supplied).]

    Petitioner contends she is a qualified retiree under

subparagraph b. because she retired on a disability pension
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before providing twenty-five years of service and, as a

qualified retiree, is eligible to receive benefits.   She points

out this statute does not condition eligibility for benefits on

whether an employee worked full-time or had been eligible to

receive health care benefits before retirement; thus, she

argues, the Commission's conclusion she was ineligible for

benefits because she worked part-time or was not eligible for

benefits before retirement was erroneous.

    The difficulty with petitioner's analysis is, first, there

is no evidence she is or had been a member of the Teachers'

Pension and Annuity Fund.   Second, 
N.J.S.A. 52:14-17.32f1

qualifies 
N.J.S.A. 52:14-17.32f by limiting the applicability of

the latter statute to certain classes of employees, one of which

is employees of boards of education.   Petitioner was not an

"employee" as that term is defined in the Act.   
N.J.S.A. 52:14-

17.32f1 states in relevant part:

         The provisions of section 3 of P.L.1987,
         c.384 (C.52:14-17.32f) shall apply to:

              a. any employee of a board of
              education who . . . retires on a
              disability pension based upon
              fewer years of service credit in
              that system or systems;

         [
N.J.S.A. 52:14-17.32f1 (Emphasis
         supplied).]


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                                                          A-3541-15T1
    In the general definitions section of this Act, the term

"employee" is defined in pertinent part as follows:

           (c)
           . . . .

           (2) After the effective date [May 21, 2010]
           of P.L.2010, c.2, the term "employee" means

                (i) . . . a full-time employee of
                an employer other than the State
                who appears on a regular payroll
                and receives a salary or wages for
                an average of the number of hours
                per week as prescribed by the
                governing body of the
                participating employer which
                number of hours worked shall be
                considered full-time, determined
                by resolution, and not less than
                25.

           [N.J.S.A. 52:14-17.26(c).]

    The Act unambiguously defines "employee" as one who worked

full-time, which means one who has worked twenty-five hours per

week or more.   
N.J.S.A.   52:14-17.26.    There is no dispute

petitioner worked less than twenty-five hours per week and,

therefore, did not work full-time.      Because she did not work

full-time, she was not an employee as that term is defined by

the Act.

    When the language of a statute "is clear on its face, 'the

sole function of the courts is to enforce it according to its

terms.'"   Hubbard ex rel. Hubbard v. Reed, 
168 N.J. 387, 392

                                 8
                                                            A-3541-15T1
(2001) (quoting Sheeran v. Nationwide Mut. Ins. Co., 
80 N.J.
 548, 556 (1979)).     Resort to extrinsic evidence to interpret the

statute is unnecessary.    DiProspero v. Penn, 
183 N.J. 477, 492

(2005).   Here, the statutes under review are clear and we are

bound to enforce them according to their terms.

    Therefore, although 
N.J.S.A. 52:14-17.32f states those who

worked less than twenty-five years and retired on a disability

pension are eligible to participate in the School Employees'

Health Benefits Program, 
N.J.S.A. 52:14-17.32f1 qualifies and

limits such benefits for those who worked for Boards of

Education to employees only.     Petitioner was not an employee as

defined by the Act.    In addition, petitioner does not address

the Commission's additional finding that, to be eligible for

benefits after retirement, one has to have been eligible to

receive benefits before retirement.    Accordingly, petitioner is

not entitled to the benefits she seeks.

    If we have not explicitly addressed an argument advanced by

petitioner, it is because it either is without sufficient merit

to warrant discussion in a written opinion, see Rule 2:11-3

(e)(1)(E), or was not raised before the Commission.     "Generally,

an appellate court will not consider issues, even constitutional

ones, which were not raised below."    State v. Galicia, 
210 N.J.
 364, 383 (2012).
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                                                           A-3541-15T1
Affirmed.




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                 A-3541-15T1