PATRICIASANTANGELO v. BOARD OF TRUSTEES, TEACHERS PENSION AND ANNUITY FUND -

NOT FOR PUBLICATION WITHOUT THE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-4112-15T1

PATRICIA SANTANGELO,

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES, TEACHERS'
PENSION AND ANNUITY FUND,

     Respondent-Respondent.
________________________________

              Submitted February 13, 2018 – Decided February 28, 2018

              Before Judges Fasciale and Sumners.

              On appeal from the Board of Trustees of the
              Teachers' Pension and Annuity Fund, Department
              of Treasury, TPAF No. 398307.

              Bergman & Barrett, attorneys for appellant
              (Michael T. Barrett, of counsel and on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Thomas R. Hower,
              Deputy Attorney General, on the brief).

PER CURIAM

        Patricia Santangelo (petitioner) appeals from an April 11,

2016 final decision from the Board of Trustees of the Teachers'
Pension and Annuity Fund (Board) decision denying her request to

file a second ordinary disability retirement application, or to

relax 
N.J.S.A. 18A:66-36 permitting her to receive early deferred

retirement benefits.     We affirm.

     Petitioner    applied   to   the    Board   for   ordinary      disability

retirement benefits in May 2010.          On October 7, 2010, the Board

denied   petitioner's    application.      Petitioner       appealed       to   the

Office of Administrative Law (OAL).            Petitioner testified before

an administrative law judge (ALJ) that numerous medical issues

prevented her from performing her teaching duties.                  On November

12, 2012, the ALJ rendered an initial decision finding petitioner

was not incapacitated from performing her teaching duties and

denied her application.

     Petitioner filed exceptions to the ALJ's initial decision,

explaining   she   was   recently   diagnosed      with    cancer    and     began

treatment.    On December 7, 2012, the Board adopted the ALJ's

initial decision denying petitioner's application for disability

retirement   benefits.       Petitioner    appealed       the    Board's     final

decision to this court.

     While   petitioner's     appeal     was     pending    in    this      court,

petitioner requested permission from the Board for leave to file

a new application for disability retirement benefits.                 The Board

denied petitioner's request on December 9, 2013.                 In June 2014,

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this court affirmed the Board's denial of petitioner's disability

retirement benefits.        Santangelo v. N.J. Teachers' Pension &

Annuity Fund, No. A-2184-12 (App. Div. June 9, 2014).

      Following this court's decision, petitioner's counsel sent a

letter to the Board referencing for the first time a December 23,

2013 letter requesting an appeal of the Board's December 9, 2013

denial.     The Board reviewed its files and indicated that it had

no record of petitioner's request.                 On July 22, 2014, petitioner

requested the Board consider her appeal of its December 9, 2013

decision.      The Board reviewed her appeal in August 2014 and denied

her leave to file a late appeal; her request to file a second

application for disability retirement benefits; and her request

to relax the deferred retirement benefits rules.

      Petitioner appealed the Board's August 2014 denial to this

court.    This court found the record contained unresolved issues

of fact regarding whether petitioner timely appealed, and remanded

the   matter    for   proceedings   in       the    OAL.   Santangelo   v.   N.J.

Teachers' Pension & Annuity Fund, No. A-0839-14 (App. Div. Feb.

5, 2016) (slip op. at 4-5).         On March 4, 2016, the Board alerted

petitioner that it would consider her appeal timely, terminating

the need for hearings in the OAL.

      On April 11, 2016, the Board rendered a final decision denying

petitioner's request to file a new application for disability

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retirement benefits.         The Board also found that it lacked the

authority     to    relax   the   retirement   benefits   rules     to     allow

petitioner to collect her benefits at age fifty-seven rather than

age sixty.

      Petitioner argues that the Board acted arbitrarily in denying

her request for an additional hearing to consider her pre-existing

diagnosis of cancer in connection with her application for ordinary

disability retirement benefits, and that the Board failed to apply

the pension statute liberally as intended.

      This court's review of an agency's decision is limited.                   In

re Stallworth, 
208 N.J. 182, 194 (2011).             "A strong presumption

of reasonableness attaches to [an agency decision]."              In re Vey,


272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 
135 N.J. 306

(1994).     Reversal is appropriate when an agency's decision is

arbitrary, capricious, unreasonable or unsupported by credible

evidence in the record.           Henry v. Rahway State Prison, 
81 N.J.
 571, 579-80 (1980).

      Ordinary disability retirement benefits may be conferred when

a   teacher   "is    physically     or   mentally   incapacitated    for      the

performance of duty and should be retired."               
N.J.S.A. 18A:66-

39(b).    Fund members who have discontinued service for more than

two consecutive years may apply for disability retirement benefits

if:

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              i.   The   applicant  demonstrates   to  the
              satisfaction of the Board that the applicant
              was physically or mentally incapacitated for
              the performance of duty at the time service
              was discontinued, and continues to be so
              incapacitated, with the same disability or
              disabilities, at the time of filing; and

              ii. The applicant factually demonstrates to
              the satisfaction of the Board that service was
              discontinued because of the disability or
              disabilities.

              [N.J.A.C. 17:3-6.1(f)(4).]

         Although courts have determined that pension statutes should

be construed liberally "in favor of the persons intended to be

benefitted thereby," Bumbaco v. Bd. of Trs., Pub. Emps.' Ret.

Sys., 
325 N.J. Super. 90, 94 (App. Div. 1999), "eligibility is not

to be liberally permitted," Smith v. Dep't of Treasury, Div. of

Pensions & Benefits, 
390 N.J. Super. 209, 213 (App. Div. 2007).

This court has stated that "in determining a person's eligibility

to   a    pension,   the   applicable       guidelines   must   be   carefully

interpreted so as not to 'obscure or override considerations of

. . . a potential adverse impact on the financial integrity of the

[f]und.'"      Ibid. (alterations in original) (quoting Chaleff v.

Teachers' Pension & Annuity Fund Trs., 
188 N.J. Super. 194, 197

(App. Div. 1983)).

         When petitioner first applied in May 2010, she was not yet

diagnosed with cancer and only learned of her diagnosis following


                                        5                              A-4112-15T1
the OAL hearing.        She asserts that her cancer diagnosis meets the

burden of incapacity pursuant to 
N.J.S.A. 18A:66-39(b).               Pursuant

to   N.J.A.C.    17:3-6.1(f)(4)(i),          petitioner   was    required     to

demonstrate     that     her    cancer   diagnosis   in   2012    resulted    in

"incapacitat[ion] for the performance of duty at the time service

was discontinued."       Thus, petitioner was required to show her 2012

cancer diagnosis met the burden of incapacitation in 2010, when

she retired from teaching.

     Although it is clear from the facts and undisputed by either

party on appeal that petitioner's health unfortunately worsened

since she filed her application in May 2010, she does not meet the

requirement of disability occurring "at the time service was

discontinued."        Ibid.    The Board, the ALJ and this court all found

that petitioner was not "incapacitated for the performance of

[her]   duty    and    should    be   retired."      
N.J.S.A.    18A:66-39(b).

Petitioner cannot claim that her cancer diagnosis and treatment

in 2012 resulted in incapacitation in May 2010.                   Petitioner's

second application for ordinary disability retirement benefits

would be futile and was correctly denied.

     Petitioner also requested the Board permit her to collect

deferred retirement benefits at age fifty-seven due to hardship

relating to her medical conditions.               Petitioner's argument is



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without    sufficient   merit   to       warrant   discussion.   R.     2:11-

3(e)(1)(E).   We add the following brief remarks.

    The Board found that it did not have the statutory power to

permit an early deferment of petitioner's retirement benefits.

Deferred retirement benefits are determined by 
N.J.S.A. 18A:66-

36(b), which permits a "deferred retirement allowance beginning

at age 60."     Petitioner was only fifty-seven when she made her

request.    The Board abided by the plain language of 
N.J.S.A.

18A:66-36, and properly denied petitioner's hardship request.

    Affirmed.




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