GINA RILEY 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NOT FOR PUBLICATION WITHOUT THE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-3925-19

GINA RILEY,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,

     Respondent-Respondent.
__________________________

                   Argued October 28, 2021 – Decided November 10, 2021

                   Before Judges Alvarez and Mawla.

                   On appeal from the Board of Trustees of the Teachers'
                   Pension and Annuity Fund, Department of the
                   Treasury.

                   Jason E. Sokolowski argued the cause for appellant
                   (Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
                   attorneys; Jason E. Sokolowski, of counsel and on the
                   briefs).

                   Matthew Melton, Deputy Attorney General, argued the
                   cause for respondent (Andrew J. Bruck, Acting
                   Attorney General, attorney; Melissa H. Raksa,
             Assistant Attorney General, of counsel; Matthew
             Melton, on the brief).

PER CURIAM

      Petitioner Gina Riley appeals from the May 12, 2020 final determination

of respondent Board of Trustees (Board) of the Teachers' Pension and Annuity

Fund (TPAF) denying her application for ordinary disability retirement benefits.

We affirm.

      Riley was a teacher in the Jersey City and Manalapan/Englishtown school

districts. Beginning in 2010 or 2012, her primary care physician, Dr. Robert

Boyd, diagnosed her with anxiety and depression and prescribed anti-anxiety

and anti-depressant medications. Dr. Boyd referred Riley to a psychiatrist, Dr.

Emmanuel Hriso. Dr. Hriso initially diagnosed Riley with adjustment disorder

with anxiety, depression, and panic disorder, and prescribed medications.

      In September 2013, Riley transferred to the Plainfield Academy for the

Arts and Advanced Studies.      Although the school hired her as a business

applications teacher, she was assigned to teach subjects she had no knowledge

of. Riley claimed she was not given teaching materials or a curriculum and was

assigned a room without computers, in an unsuitable location where she "was

constantly being distracted by noise and could not focus on her work. She

became anxious and started experiencing panic attacks, and then depression."

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      Riley's condition worsened, causing her to take off from work "two or

three days a week."     She experienced "frequent panic attacks" as well as

"anxiety, . . . depressive episodes, anger, frustration, [and] irritability" which

caused Dr. Hriso to believe "she couldn't really . . . carry out a . . . job

appropriately."

      In April 2014, Riley was transferred to Plainfield High School. Dr. Hriso

reported she continued to struggle because her new position "was ill-defined,

. . . she was subject to hostility, again leading to more emotional upheaval, with

anxiety, irritability, and depression." He stated Riley "was reluctant to go on

more consistent short-term disability at the time because she was hoping to get

better with treatment and 'hang in' until improvement in her condition, . . . [and]

hope[d to be] transferred into a more appropriate position given her skill sets."

      In May 2014, the Plainfield Board of Education did not renew Riley's

contract. When Dr. Hriso saw Riley that month, he observed she was upset over

her employment situation so he "tried to have her refocus on more positive

approaches, such as pursuing [other teaching] openings . . . ."

      That summer, Riley lost her mother, a close aunt, and two uncles. She

also experienced several physical injuries. Dr. Hriso reevaluated her in February




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2015 and found "[s]he presented as very depressed" and recommended she

continue taking her prescribed medications.

      From November of 2015 to April 2016, Riley sought treatment through

Catholic Charities.   In November 2015, a clinician at Catholic Charities

diagnosed her with "Major Depressive Disorder due to symptoms of a persistent

negative mood, loss of pleasure in activities previously enjoyable, agitation,

[and] difficulty concentrating, and focusing." The clinician increased Riley's

medications.

      On December 31, 2015, Riley applied for TPAF ordinary disability

retirement benefits. In August 2016, the Board denied her application "based

on the determination that [she was] not totally and permanently disabled at the

time [she] left employment with [Plainfield] in June 2014, in accordance with

N.J.A.C. 17:1-6.4." Riley appealed, and the matter was transferred to the Office

of Administrative Law for a factfinding hearing by an administrative law judge

(ALJ).

      The ALJ heard testimony from Dr. Hriso and Riley. The Board presented

testimony from its psychologist and medical expert, Dr. Daniel LoPreto.

      Dr. Hriso submitted a narrative report, reiterating that Riley's "disability

started long before she applied for ordinary disability, and there is strong


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evidence clinically that she was psychiatrically impaired and disabled during her

work for [Plainfield]."      He opined Riley's current diagnoses were major

depressive disorder, generalized anxiety disorder, panic disorder, and post -

traumatic stress disorder.    He concluded "Riley remains disabled from her

psychiatric and medical conditions. She has [a] significant impairment[] and is

in no shape psychiatrically and physically to return to work."

      Dr. Hriso testified consistent with his report.      He opined Riley was

disabled before she left teaching because by May 2014, her symptoms had

become so severe they "caused her to not be able to do her job adequately." He

arrived at this conclusion based on subjective and objective observations,

including Riley's subjective complaints and his objective observations of her

demeanor and general appearance.         He conceded he did not review her

psychiatric records prior to treating her, nor did he review her records from

Catholic Charities or Dr. Boyd. He did, however, speak with Dr. Boyd.

      Dr. Hriso testified he did not perform any psychological testing because

for "clinical evaluation[s], . . . there are no tests to really demonstrate someone

has . . . major depression." He recommended Riley seek other job opportunities

in May 2014 "to give her an alternative" option, but "in retrospect . . . [he]

thought she was disabled permanently or totally by that time " because "she


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really couldn't function . . . ." He was unsure she could have functioned in

another school.

      Riley testified that throughout her employment in Plainfield, she

experienced "some fear and extreme panic attacks" that were "disabling" and

became progressively worse. Although she claimed she could not continue to

work as of 2014, she was "being optimistic" keeping some teaching applications

open. She conceded the deaths in her family and her physical injuries worsened

her psychological state.

      Dr. LoPreto evaluated Riley in May 2017. He also reviewed Dr. Hriso's

treatment notes and records from Catholic Charities, among other medical

records. According to Dr. LoPreto's report, Riley told him that as soon as she

learned Plainfield was not renewing her teaching contract, she "began seeking

other teaching positions but couldn't find anything" for six months.

      As part of his evaluation, Dr. LoPreto administered a Personality

Assessment Inventory (PAI). He opined Riley's PAI scores showed "some

exaggeration" but otherwise produced a "valid profile" that was " consistent with

a significant depressive experience." Based on his review of her medical records

and his evaluation, he concluded she "[a]t the time of current examination, [is]




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totally and permanently disabled, and no longer able to perform the material job

duties of a [t]eacher, . . . due to her psychological condition."

      Dr. LoPreto differed with Dr. Hriso regarding the onset of Riley's

disability noting "[t]here is no documentation to indicate [Riley] was disabled

at the time she left employment." He cited Riley's job search from May 2014

through December 2014 as further evidence she did not have a psychological

disability. He opined "Riley's psychological condition deteriorated, subsequent

to her leaving work, due to numerous psychosocial stressors, inclu ding the fact

that she was unable to secure alternate employment in her field after being laid

off by [Plainfield]."

      Dr. LoPreto testified in accordance with his report. He opined that as of

Riley's application for benefits, she was "totally and permanently disabled by

virtue of major depressive [dis]order and generalized anxiety disorder and a

somatic symptom disorder." He explained the difference between Dr. Boyd and

Dr. Hriso's initial depression diagnosis, and the later major depression diagnosis

by Catholic Charities is that "[m] ajor depression is much more significant, much

more limiting . . . [and] much more paralyzing. The symptoms result in more

functional impairment."




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      He testified he based his approximation of the onset of Riley's disability

in part on Dr. Hriso's encouraging her to seek other teaching positions. He

opined "if both she and her doctor are encouraging her to teach, there's no

objective evidence of . . . a disability there . . . ." Further, he explained "[a]

diagnosis does not equal a disability.       Disability is based on functional

impairments[.]" Riley did not meet the criteria until she experienced multiple

losses in her family.

      The ALJ concluded Riley proved "she was permanently and totally

disabled at the time she was employed at Plainfield, and likely for a long time

prior, and remains totally and permanently disabled, and therefore . . . she is

entitled to an ordinary disability retirement pension." Although the ALJ found

both doctors credible, she determined Dr. Hriso's testimony as the treating

physician was more reliable.      On the other hand, the ALJ concluded Dr.

LoPreto's assessment was based on lack of documentation proving a disability

before June 2014, and therefore could not "place much weight on [his] diagnosis

regarding the onset of the total and permanent disability."

      The Board rejected the ALJ's credibility finding, stating "Dr. Hriso did

not, in fact, review any of [Riley's] medical records, he did not perform objective

tests, and he based his opinion primarily on [Riley's] self-report of symptoms."


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It determined Dr. LoPreto's testimony, was more credible because he reviewed

"all of [Riley's] psychiatric medical records (from before and after her June 2014

termination), . . . [conducted] objective testing and [reviewed an] independent

medical examination . . . ." The Board also noted that Dr. Hriso's suggestion to

seek alternative teaching positions in May 2014 contradicted his conclusion

Riley was permanently disabled at that time. The Board denied the application

for disability benefits.

      Riley raises the following points on appeal:

             POINT I

             THE TPAF BOARD'S DECISION TO REJECT THE
             ALJ'S FACTUAL FINDINGS AND LEGAL
             CONCLUSIONS FINDING . . . RILEY TOTALLY
             AND PERMANENTLY DISABLED AT THE TIME
             OF HER SEPARATION FROM EMPLOYMENT
             BASED ON ITS BELIEF THAT ITS EXPERT
             TESTIMONY SHOULD BE CREDITED OVER . . .
             RILEY'S EXPERT TESTIMONY IS CONTRARY TO
             THE DOCUMENTARY AND TESTIMONIAL
             RECORD WHICH SUPPORTED THE ALJ'S
             FACTUAL AND LEGAL FINDINGS GRANTING . . .
             RILEY ORDINARY DISABILITY RETIREMENT
             BENEFITS.

                   A. STANDARD OF REVIEW

                   B. THE ALJ CORRECTLY DETERMINED
                   THAT . . . RILEY MET THE STANDARD
                   THAT    SHE    WAS  TOTALLY   AND
                   PERMANENTLY DISABLED FROM THE

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PERFORMANCE OF HER JOB DUTIES AS OF
HER SEPARATION OF EMPLOYMENT IN
JUNE[] 2014, THEREBY ENTITLING HER TO
RECEIVE       ORDINARY     DISABILITY
RETIREMENT BENEFITS.

C. THE TPAF BOARD ERRED BY
IMPROPERLY          CREDITING       THE
TESTIMONY OF THE TPAF BOARD'S
EXPERT MEDICAL WITNESS OVER . . .
RILEY'S EXPERT MEDICAL WITNESS,
WHEN, AS TRIER OF FACT, THE ALJ
HEARD THE TESTIMONY OF BOTH
EXPERT WITNESSES AND REVIEWED ALL
OF THE MEDICAL EVIDENCE, CORRECTLY
DETERMINING THAT . . . RILEY'S EXPERT
MEDICAL    WITNESS         WAS    MORE
PERSUASIVE       IN     HIS     OPINION
ESTABLISHING . . . RILEY'S ENTITLEMENT
TO ORDINARY DISABILITY RETIREMENT
BENEFITS.

D. THE TPAF BOARD'S REASONS FOR
FINDING ITS MEDICAL EXPERT MORE
RELIABLE THAN . . . RILEY'S MEDICAL
EXPERT ARE UNTENABLE IN LIGHT OF
THE RECORD IN THIS CASE.

     ....

    [1]. THE TPAF BOARD COMPLETELY
    IGNORED THE FACT THAT . . .
    RILEY'S MEDICAL EXPERT WAS
    ALSO HER TREATING PSYCHIATRIST
    WHO EXAMINED HER BOTH BEFORE
    AND AFTER HER SEPARATION
    [FROM] SERVICE AS OPPOSED TO
    THE TPAF BOARD'S MEDICAL

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               10
                         EXPERT WHO ONLY EXAMINED . . .
                         RILEY ONCE, AND FOR THAT
                         REASON,    GREATER     WEIGHT
                         ACCORDED TO . . . RILEY'S
                         TREATING PSYCHIATRIST.

      Our "review of administrative agency action 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)). We defer "to an administrative agency's

exercise of its statutorily delegated responsibilities." Lavezzi v. State,  219 N.J.
 163, 171 (2014) (citing City of Newark v. Nat. Res. Council, Dep't of Env't Prot.,

 82 N.J. 530, 539 (1980)). We "should not disturb an administrative agency's

determinations or findings unless there is a clear showing that (1) the agency

did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence." In

re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need,  194 N.J. 413,

422 (2008) (citing Herrmann,  192 N.J. at 28). "[T]he test is not whether an

appellate court would come to the same conclusion if the original determination

was its to make, but rather whether the factfinder could reasonably so conclude

upon the proofs." Brady v. Bd. of Rev.,  152 N.J. 197 (1997) (quoting Charatan

v. Bd. of Rev.,  200 N.J. Super. 74, 79 (App. Div. 1985)).




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       N.J.S.A. 18A:66-39(b) states a TPAF member is eligible for ordinary

disability where "[t]he physician . . . designated by the board . . . [conducts] a

medical examination of [the member] . . . and shall have certified to the board

that the member is physically or mentally incapacitated for the performance of

duty and should be retired." We have interpreted the statute to mean that the

applicant must have left their position due to the disability. In re Adoption of

N.J.A.C. 17:1-6.4, 17:1-7.5 & 17:1-7.10,  454 N.J. Super. 386, 399 (App. Div.

2018).

      An applicant must prove "she has a disabling condition and must produce

expert evidence to sustain this burden." Bueno v. Bd. of Trs., Tchrs.' Pension

& Annuity Fund, Div. of Pensions and Benefits,  404 N.J. Super. 119, 126 (App.

Div. 2008) (citing Patterson v. Bd. of Trs., State Police Ret. Sys.,  194 N.J. 29,

50-51 (2008)). "A teacher with a disabling mental condition may qualify for

ordinary disability retirement benefits." Ibid.

      Riley relies on  N.J.S.A. 52:14B-10(c) and argues the Board could not

reject the ALJ's credibility findings without first concluding those findings were

arbitrary, capricious, unreasonable or unsupported by the evidence. However,

we have stated  N.J.S.A. 52:14B-10(c) does not apply to expert witnesses. ZRB,

LLC v. N.J. Dep't of Env't Prot., Land Use Regul.,  403 N.J. Super. 531, 561


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                                       12
(App. Div. 2008).     The credibility determinations here involved the expert

witnesses' conflicting testimony about the onset of Riley's disability, not lay

witness testimony. Therefore,  N.J.S.A. 52:14B-10(c) did not apply.

      We reject Riley's argument that the Board erred by failing to accord her

treating psychiatrist's testimony greater weight.       The Board "has ultimate

authority . . . to adopt, reject[,] or modify" an ALJ's findings. 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) (citing In re License of Suspension of Silberman,  169 N.J. Super. 243, 255-56 (App. Div. 1979)). We defer to the Board's findings

unless they are "supported by substantial credible evidence." Ibid. If the Board

rejects the ALJ's findings, it must "state clearly the reasons for doing so."

 N.J.S.A. 52:14B-10(c).

      Generally, "where the medical testimony is in conflict, greater weight

should be accorded to the testimony of the treating physician." Bialko v. H.

Baker Milk Co.,  38 N.J. Super. 169, 171 (App. Div. 1955); see also Conquy v.

N.J. Power & Light Co.,  23 N.J. Super. 325, 330 (App. Div. 1952). However,

the weight accorded to an expert's testimony depends on several factors such as

whether the expert is testifying regarding their specialty, if their conclusions are

largely based on the patient's subjective complaints, and if their opinions are


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                                        13
supported by objective evidence corroborated by other physicians. Angel v.

Rand Express Lines, Inc.,  66 N.J. Super. 77, 86 (App. Div. 1961).

      Here, the Board articulated specific reasons for crediting Dr. LoPreto's

testimony over Dr. Hriso. It explained Dr. Hriso did not review Riley's records

from Catholic Charities or Dr. Boyd's notes. The Board noted the information

Dr. Hriso received regarding her Catholic Charities treatment was based on self-

reporting and Dr. Hriso was treating Riley sporadically during that time period.

Indeed, he evaluated Riley in April, and May 2014, but did not see her again

until February 2015. At that time, he noted Riley was "very depressed" but did

not alter her diagnosis or conclude she was permanently disabled.

Notwithstanding his advice to Riley to seek other employment, the record is

clear he did not document her permanent disability until May 2016. Moreover,

Riley experienced a series of deaths and physical injuries, compounding her

mental health issues during the May 2014 to February 2015 gap. As a result,

the Board's expert credibly opined Riley became disabled after leaving her

employment.

      For these reasons, the Board's denial of Riley's ordinary disability

retirement benefits was not arbitrary, capricious, or unreasonable.




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Affirmed.




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            15