MICHAEL MASSARO VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM(BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5071-15T1
MICHAEL MASSARO,
Appellant,
v.
PUBLIC EMPLOYEES' RETIREMENT
SYSTEM,
Respondent.
__________________________________
Submitted August 8, 2017 – Decided December 4, 2017
Before Judges Sabatino and O'Connor.
On appeal from the Board of Trustees of the
Public Employees' Retirement System, Docket
No. PERS #2-10-281668.
William B. Hildebrand, attorney for
appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Paul
Davis, Deputy Attorney General, on the
brief).
PER CURIAM
Petitioner Michael Massaro appeals from the Public
Employees' Retirement System Board of Trustees' final
administrative determination he is not entitled to receive
ordinary disability retirement benefits. We affirm.
After working as a probation officer in various capacities
for the New Jersey Office of Probation Services for
approximately fifteen years1, petitioner, then seventy years of
age, applied for ordinary disability retirement pursuant to
N.J.S.A. 43:15A-42. This statute provides an eligible member is
entitled to ordinary disability retirement benefits if he or she
is physically or mentally incapacitated from performing his job
duties. Ibid. The Board of Trustees denied petitioner's
application because he did not meet the latter standard.
Petitioner filed an administrative appeal, and the Board of
Trustees referred the matter to the Office of Administrative Law
for a hearing before an administrative law judge (ALJ). During
that hearing, petitioner testified he suffered from various
afflictions he claimed were disabling. These included herniated
disks, hypertension, hypothyroidism, an enlarged prostate,
gastroesophageal reflux disease, tinnitus, and emotional stress.
1
Before he commenced working as a probation officer in New
Jersey, petitioner was a probation parole officer for the
Philadelphia Probation Office for thirty years.
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Petitioner called his treating physician, Thomas Hanley,
M.D., a board certified family practitioner, to corroborate his
testimony and establish his entitlement to ordinary disability
benefits. Hanley opined petitioner's health conditions kept him
from meeting his job requirements because,
at certain times, the pain that [petitioner]
was in, the medicines he was taking and
. . . certainly the stress both on the job
and at home, along with his . . . high level
of commitment to the job [made him feel] as
though he could [not] do the job as well as
he felt it was necessary.
Hanley stated petitioner's disability was a combination of all
of his afflictions, but his back condition was a "significant
aggravating factor."
Hanley testified petitioner was first diagnosed with
herniated disks in 2008, for which he received injections into
the afflicted area of the spine, participated in physical
therapy, and took pain medication. In 2013, petitioner again
complained of back pain, but Hanley conceded there were no
objective findings to corroborate petitioner's complaints of
pain and, other than taking pain medication as needed,
petitioner had not had any treatment to his back since 2008.
PERS presented the testimony of board certified orthopedic
surgeon Arnold Berman, M.D., who opined there was no objective
evidence petitioner ever had a herniated disk or any back
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condition that accounted for his complaints of back pain in
2013. Berman also noted there was no change in any of the
radiologic findings between 2008 and 2013, indicating there was
no progressive loss of function over such time period.
Based on his review of the evidence, the ALJ rejected
Hanley's opinion petitioner suffered from an orthopedic ailment
which incapacitated him from performing his job duties, because
such opinion was not based upon objective findings. The ALJ
credited Berman's opinion, and further determined there was
insufficient evidence petitioner's non-orthopedic ailments
precluded him from working.
Petitioner filed exceptions to the ALJ's decision. PERS
adopted the ALJ's recommendation and reaffirmed the PERS Board's
determination petitioner was not entitled to receive ordinary
disability retirement benefits. This appeal ensued.
Petitioner argues PERS erred in denying his application for
ordinary disability retirement benefits because the ALJ failed
to: (1) give sufficient weight to Hanley's opinion petitioner is
totally and permanently disabled; (2) recognize petitioner's
pain and stress prevented him from performing his normal job
functions; and (3) consider petitioner's extensive medical
history.
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The scope of our review in an appeal from a final decision
of an administrative agency is strictly limited. Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1,
9 (2009). When reviewing a final decision of an administrative
agency, we consider whether there is sufficient credible
evidence to support the agency's factual findings. Clowes v.
Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). In doing so, we
give "due regard to the opportunity of the one who heard the
witnesses to judge of their credibility[.]" Ibid. (quoting Close
v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must sustain
the agency's action in the absence of a "'clear showing' that it
is arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record[.]" Circus, supra, 199 N.J. at 9.
In order to qualify for ordinary disability retirement
benefits under N.J.S.A. 43:15A-42, a member of PERS must
establish by a preponderance of the credible evidence that he or
she is physically or mentally incapacitated from performing his
or her duties. The member must establish an incapacity to
perform duties in the general area of his or her ordinary
employment, rather than merely show an inability to perform his
or her specific job. Bueno v. Bd. of Trustees, Teachers'
Pension & Annuity Fund, 404 N.J. Super. 119, 130-31 (App. Div.
2008), certif. denied, 199 N.J. 540 (2009).
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Having considered petitioner's arguments in light of the
record and our standard of review, we conclude PERS' decision is
supported by sufficient credible evidence on the record as a
whole. R. 2:11-3(e)(1)(D). PERS adopted the ALJ's findings of
fact, which were based on his assessment of the expert testimony
presented by Dr. Hanley and Dr. Berman. We must give
appropriate deference to the ALJ's and PERS' findings where, as
here, those findings are based on sufficient credible evidence
in the record. In re Taylor, 158 N.J. 644, 658-59 (1999).
Petitioner's arguments are without sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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