S.G. VS. BOARD OF TRUSTEES, ETC. (TEACHERS' PENSION AND ANNUITY FUND) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3834-19
S.G.,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,
Respondent-Respondent.
____________________________
Argued November 29, 2021 – Decided December 21, 2021
Before Judges Sumners and Firko.
On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury.
Samuel M. Gaylord argued the cause for appellant
(Gaylord Popp, LLC, attorneys; Samuel M. Gaylord, on
the brief).
Jeffrey D. Padgett, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Connor V.
Martin, Deputy Attorney General, on the brief).
PER CURIAM
Petitioner S.G.1 appeals from the May 15, 2020 final administrative
decision of the Board of Trustees of the Teacher's Pension and Annuity Fund
(TPAF) (the Board) denying her application for ordinary disability retirement
benefits.2 The Board agreed with the Administrative Law Judge's (ALJ)
determination that petitioner was incapable of performing her duties as a
teacher. However, the Board rejected the ALJ's initial decision that petitioner's
injuries were not permanent and disabling based on her insufficient medical
expert proofs. Because our review of the record in light of the relevant legal
precedents supports the Board's decision, we affirm.
1
We utilize initials to protect petitioner's privacy.
2
Throughout petitioner's brief, she erroneously cites to the Public Employees'
Retirement System (PERS), N.J.S.A. 43:15A-1 to -161, rather than the
appurtenant TPAF. However, the Department of the Treasury, Division of
Pension and Benefits (Division) administers both the PERS and TPAF. In re
Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386, 396-97 (App. Div. 2018)
(citing Burgos v. State, 222 N.J. 175, 184 (2015)). Additionally, "the pertinent
language of each statute is nearly identical or substantially similar: '[u]pon
retirement for [ordinary or accidental] disability, a member shall receive' the
applicable retirement allowance." Id. at 397 (citations omitted); see, e.g.,
N.J.S.A. 43:15A-45, -46; N.J.S.A. 18A:66-41, -42; see also Kasper v. Bd. of
Trs. of Tchrs. Pension & Annuity Fund, 164 N.J. 564, 574 (2000) (noting the
PERS is "governed by accidental disability provisions identical to the TPAF").
A-3834-19
2
We glean these facts from the record. Petitioner was enrolled in the TPAF
in January 1992 when she was hired by the Lacey Township Board of Education
as a schoolteacher, where she worked for approximately twenty-one years.
Requirements for the position included: (1) "[d]evelop[ing] lessons plans"; (2)
"[t]ranslat[ing] lesson plans . . . into learning experiences"; (3) "[e]stablish[ing]
and promot[ing] acceptable standards of pupil behavior"; (4) "[m]aintain[ing]
professional competence and continuous improvement"; and (5) evaluating
student progress, communicating said progress with parents, and cooperating
with other Lacey staff in assessing and assisting students "with health, attitude[,]
and learning problems." Additionally, the position included a required
minimum amount of non-teaching duties, such as hallway duty, "milk
distribution[,] and supervision of cafeterias, sidewalks, bus loading and
unloading and playground."
On February 17, 2010, petitioner slipped on black ice in the school's
parking lot and injured her left ankle. She required surgery and an installation
of "[two] metal plates and [nine] screws." Petitioner did not return to work for
the rest of that school year. In September 2011, petitioner returned to work and
performed her duties but continued to experience difficulty walking. On March
23, 2013, petitioner fell down the stairs in her home. On April 9, 2013, she was
A-3834-19
3
tripped by a student and fell, resulting in a fractured right foot, which healed on
its own.
In August 2013, Dr. William Kennard, an orthopedic surgeon, provided
petitioner with a note to excuse her from work for two months based on her
subjective complaints. However, petitioner did not return to work for the rest
of that school year or the following academic year. Petitioner testified: "I had a
lot of sick days. We decided to use them and see if I felt better. I just didn't
feel I was capable of doing it." The record shows petitioner never asked for any
accommodations from her employer.
On August 26, 2013, petitioner submitted her application for ordinary
disability retirement benefits, N.J.S.A. 18A:66-39(b), with an effective
retirement date of March 2014.3 She claimed to have "a slight limp and the
inability to stand for more than [two] hours at a time." On November 8, 2013,
petitioner amended her application to request accidental disability retirement
3
Both petitioner's August 26, 2013 application for ordinary disability benefits
and November 8, 2013 amended application for accidental disability benefits
list her retirement date as February 1, 2014. However, petitioner testified, "I
think . . . I retired . . . March 1[, 2013]." The ALJ noted, "[a]fter having used
her sick time to deal with the aftermath of her injury [petitioner] retired in March
2014." These discrepancies are not germane to our decision. The record reflects
that petitioner never returned to work for Lacey Township Board of Education
after her April 9, 2013 injury.
A-3834-19
4
benefits, N.J.S.A. 18A:66-39(c). On March 16, 2014, the Board denied
petitioner's application for accidental retirement benefits. The Board found: (1)
petitioner's February 17, 2010 injury, slipping on black ice, "did not occur
during and as a result of . . . regular or assigned duties," but instead "happened
in the parking lot"; (2) [petitioner's] March 23, 2013 injury, falling down the
stairs, "occurred at home" and therefore, "was not considered by the Board";
and (3) petitioner's April 9, 2013 injury, tripped by student, although
identifiable, undesigned, and unexpected, was not a "direct caus[e] of a total and
permanent disability." Additionally, the Board determined petitioner was not
"totally and permanently disabled from the performance of [her] regular and
assigned duties."
On March 23, 2014, petitioner appealed the Board's decision, and the
matter was transmitted to the Office of Administrative Law (OAL) as a contested
case. Petitioner "subsequently amended her request back to ordinary disability
benefits"4 and the matter proceeded accordingly.5 Dr. Lawrence Barr, a board-
4
Petitioner's subsequent amendment was not included in the record and the date
of the amendment is unknown.
5
The Board's decision, as recorded in its March 6, 2014 letter, denied
petitioner's amended "application for [a]ccidental [d]isability retirement
benefits." The ALJ's February 20, 2020 initial decision, however, addressed
A-3834-19
5
certified orthopedic surgeon, testified on behalf of petitioner. Dr. Barr opined
petitioner "is totally and permanently disabled from her job duties as a teacher"
and "is not able to stand on her feet for long periods of time or walk long
distances without having difficulty." Dr. Jeffrey F. Lakin, the Board's expert,
who is also board certified in orthopedic surgery, opined petitioner is "not totally
and permanently disabled from her teaching position."
Following a two-day hearing, the record formally closed on February 23,
2017. "Extensions of time were granted for the filing of the [i]nitial [d]ecision,"
and three years later, on February 20, 2020, the ALJ rendered her initial
decision.6
In reviewing the record, the ALJ found:
[Petitioner] to be credible in her testimony regarding
the pain, discomfort and balance issues related to her
ankle and foot. She cogently described how the
successive injuries to her left ankle and right foot had
affected her work and daily life. Her testimony was
consistent with her descriptions of her condition given
to her medical providers over a series of years. . . . She
also was credible in her testimony that she had not
sought accommodations for her ankle and foot
problems as she assumed, they would not be granted.
petitioner's second amended application for ordinary disability retirement
benefits.
6
The record does not indicate why there was a three-year delay in the issuance
of an initial decision.
A-3834-19
6
While that assumption may have been in error, she was
forthright and direct in her admission.
Whether or not [petitioner] has a disabling foot
and ankle condition requires an evaluation of the
credibility of the expert medical testimony presented in
this matter. Overall Dr. [Barr] was more credible in his
testimony. While both experts presented a similar
picture of her medical history, [petitioner's expert]
found evidence in his physical examination of toe
deformity, tenderness around the fourth and fifth
metatarsals, and pain on toe movement. Additionally,
she was unable to complete the heel to toe walking
portion of the exam, signaling balance and gait issues.
His opinion that she had a disabling condition was
corroborated by her treating physicians . . . who
corroborated her subjective complaints and noted
tenderness and swelling in the affected area. [Dr. Barr]
was more responsive in his testimony and directly
addressed questions posed to him on cross-
examination.
Dr. [Lakin], on the other hand, was dismissive of
[petitioner's] subjective complaints and found her
treating physicians' reports to be of little value,
dismissing their reports of tenderness and swelling. He
was obstreperous and at times unresponsive during
cross-examination. On balance his testimony
dismissing all of her complaints was less credible in
light of her credible testimony and the reports of her
treating physicians.
As a result, [the ALJ] [found] that petitioner has
a disabling condition of her foot and ankle which limits
her ability to stand or walk for long periods of time. . . .
. . . However, she has not met her burden that her
condition disables her from her job as a middle school
A-3834-19
7
math teacher. A review of her job duties . . . shows that
she can fulfill those duties without long periods of
walking or standing. While she was credible in her
testimony that her principal advised teachers to move
around the classroom, there was no other evidence that
it was a requirement of her job. It may well be that
good teaching practice and the concomitant effort to
control the classroom favor such movement but
nowhere is it set forth as a requirement. Further,
petitioner was candid that she chose not to request any
accommodations from such a requirement should it
have existed.
Petitioner's occasional hall and cafeteria duty did
specifically require long periods of standing and
movement. . . . Such duty was classified as non-
teaching duty in the agreement between Lacey and the
education association and non-teaching dut[ies] listed a
variety of activities which could be performed without
periods of standing and movement. [Petitioner] simply
chose not to ask for any accommodations for her
condition in the assignment of non-teaching duties. As
such she has not carried her burden of proof that she
was unable to perform the functions of her position.
On March 4, 2020, exceptions to the ALJ's initial decision were filed with
the Division of Pensions and Benefits, by counsel for the Board explaining
although "[t]he ALJ correctly found [petitioner] is not entitled to ordinary . . .
benefits because she failed to prove that her condition disables her from her job ,"
the ALJ incorrectly found that petitioner "has met her burden in proving that she
has a [permanent] disab[ility]." The exceptions claimed the ALJ erred in finding
Dr. Barr's testimony to be more reliable than Dr. Lakin's testimony. And
A-3834-19
8
consequently, the Board should modify the ALJ's initial decision by finding
petitioner is not totally and permanently disabled because she: (1) can still
perform most of her job duties; and (2) failed to ask for accommodations.
On May 15, 2020, after considering all exhibits, the initial decision, and
filed exceptions, the Board "voted to modify the [i]nitial [d]ecision and adopt
the ALJ's finding that [petitioner] is not entitled to [o]rdinary [d]isability . . .
retirement benefits." Although the Board "affirmed the ALJ's determination that
[petitioner] failed to prove that her allegedly disabling condition incapacitates
her from her job," the Board "rejected the ALJ's finding that [petitioner] had
proved that she has a disabling . . . condition with respect to certain 'non-
teaching' job activities" because such a "finding is not supported by the objective
evidence in the record." The Board weighed the "objective evidence" in the
record and determined:
The Board's expert, Dr. [Lakin] . . . reliably explained
that [petitioner] had a completely normal orthopedic
examination in relation to her foot and ankle . . . . There
was no evidence of arthritic pain or deformity. In
August 2013, Dr. [Kennard] provided [petitioner] with
a note keeping her out of work for two months, but due
to the subjectivity of her complaints could not justify a
longer timeframe. Because of the lack of objective
evidence to justify [petitioner's] subjective complaints,
Dr. Lakin concluded that [petitioner] is not totally and
permanently disabled.
A-3834-19
9
In contrast to Dr. Lakin, [petitioner's] expert Dr.
[Barr] relied a great deal on her subjective complaints.
While he found [petitioner] disabled because she could
not stand or walk at length without difficulty, he
conceded that the signs of difficulty that she exhibited
were within her control and thus subjective.
Additionally, Dr. Barr failed to relate [petitioner]'s
complaints to her duties, and also failed to consider
potential accommodations in [petitioner]'s job as a
teacher. Therefore, the Board rejected the ALJ's
finding that Dr. Barr opinion was more reliable than Dr.
Lakin's with respect to [petitioner's] purported
disability.
Although the Board rejects the finding that
[petitioner] is disabled with respect to some non-
teaching responsibilities, it recognizes, as did the ALJ,
that the inability to perform some aspects of a position
does not always equate to incapacitation from the
general area of a member's ordinary employment. . . .
To the extent that [petitioner] subjectively finds
herself unable to complete some of her duties due to
foot and ankle pain, she . . . ha[d] an option to request
accommodation from her employer. . . . [Petitioner]'s
failure to seek accommodation severely undermines her
claim of disability.
The Board adopts the ALJ's determination that
[petitioner] is not eligible for [ordinary disability]
retirement benefits, and rejects her determination that
[petitioner] is disabled from "non-teaching duties," and
modifies [the ALJ's] factual findings as set forth above.
[(internal citations omitted).]
A-3834-19
10
In this ensuing appeal, petitioner argues that she is physically
incapacitated from the performance of her regular and assigned job duties as a
mathematics middle school teacher and hall/cafeteria monitor. She asserts while
the ALJ applied the correct legal standard, the ALJ "reached an erroneous
conclusion by failing to account for [p]etitioner's credible testimony that her job
as a math teacher required her to stand or move around the classroom for long
periods of time during teaching duties."
Our review of decisions by administrative agencies is limited, with the
party challenging the validity of the administrative action carrying a substantial
burden of persuasion. See generally, In re Stallworth, 208 N.J. 182, 194 (2011).
Under our standard of review, an agency's determination must be "sustained
'unless there is a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record.'" Russo v. Bd. of Trs., Police &
Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J.
19, 27-28 (2007)). Thus, on appeal, our role is limited to the evaluation of three
factors:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;
A-3834-19
11
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of relevant factors.
[Herrmann, 192 N.J. at 28 (quoting Mazza v. Bd. of
Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25
(1995)).]
When the agency's decision satisfies those criteria, we are obliged to
afford substantial deference to the agency's expertise and superior knowledge of
a particular field, even if we would have reached a different result from that
reached by the agency. Ibid. (citations omitted); see In re Taylor, 158 N.J. 644,
657 (1999) (citations omitted). While we are not bound by an agency's
interpretation of legal issues, which we review de novo, Russo, 206 N.J. at 27(quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)), "[w]e
must give great deference to an agency's interpretation and implementation of
its rules enforcing the statutes for which it is responsible." Piatt v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015) (quoting
St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 13 (2005)). "Such deference has
been specifically extended to state agencies that administer pension statutes."
A-3834-19
12
Ibid. (citing Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J.
189, 196 (2007)).
"The Board has ultimate authority . . . to adopt, reject[,] or modify" an
ALJ's findings. N.J. Dep't of Pub. Advoc. v. N.J. Bd. of Pub. Utils., 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)). But see N.J.S.A.
52:14B-10(c) (requiring the Board to "state clearly the reasons for" rejecting the
ALJ's findings). The Board must defer to the ALJ on the credibility of a lay
witness, unless the Board "determine[s] from a review of the record that the
findings are arbitrary, capricious or unreasonable or are not supported by
sufficient, competent, and credible evidence in the record." In re Adoption of
Amends. to Ne., Water Quality Mgmt. Plan, Upper Raritan, Sussex Cnty., 435
N.J. Super. 571, 584 (App. Div. 2014) (second alteration in original) (quoting
N.J.S.A. 52:14B-10(c)).
But, "the [ultimate] choice of accepting or rejecting the testimony of [a
lay] witness[] rests with the administrative agency." Renan Realty Corp. v.
State, Dep't of Cmty. Affs., Bureau of Hous. Inspection, 182 N.J. Super. 415,
421 (App. Div. 1981). Here, the Board did not disturb the ALJ's finding that
petitioner was a credible witness, but instead, the Board relied on the expert s'
A-3834-19
13
testimony and the objective evidence in the record in making its decision. The
Board was not required to prove the ALJ's finding to be "arbitrary, capricious or
unreasonable or . . . [un]supported by sufficient, competent, and credible
evidence in the record." In re Adoption of Amends. to Ne., 435 N.J. Super. at
584 (quoting N.J.S.A. 52:14B-10(c)).
In the matter under review, "the Board rejected the ALJ's finding that
[petitioner] had proved she had a disabling [condition]" because it was "not
supported by the objective evidence in the record." In rejecting the ALJ's
finding, the Board stated specifically: (1) "[t]here was no evidence of arthritic
pain or deformity"; (2) petitioner's August 2013 note from Dr. Kennard, which
kept "her out of work for two months," could not be extended "due to the
subjectivity of [petitioner's] complaint[s, which] could not justify a longer
timeframe"; and (3) petitioner's expert, Dr. Barr, who "relied a great deal on her
subjective complaints[,] . . . . conceded that the signs of difficulty that she
exhibited were within her control and thus subjective[,] . . . . [and] failed to
consider potential accommodations in [petitioner]'s job as a teacher."
In weighing the testimonies of the expert witnesses, the Board considered
both the experts' reliance on petitioner's subjective complaints as well as the
objective evidence in the record. We are satisfied the Board's findings "could
A-3834-19
14
reasonably have been reached on sufficient credible evidence present in the
record." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
Petitioner argues the Board erred in its application of the statute by
"appl[ying] the incorrect legal standard by requiring [p]etitioner to show that
she was permanently and totally disabled from the general area of her ordinary
employment." In addition, petitioner claims the "permanent and total disability"
standard "was promulgated [by] N.J.A.C. 17:1-6.4[,] [which] became effective
on June 20, 2016." Because petitioner's application dated August 26, 2013,
predates the effective date of N.J.A.C. 17:1-6.4, and because the statute may not
be applied retroactively, petitioner argues she only had to prove her condition
disabled her from performing the specific duties of "her job as a middle school
math teacher, as opposed to . . . the general area of her ordinary employment."
We disagree.
N.J.A.C. 17:1 "governs the disability retirement application process for
various State public retirement systems," including ordinary disability benefits
pursuant to N.J.S.A. 18A:66-39(b). In re Adoption of N.J.A.C. 17:1-6.4, 454
N.J. Super. at 393, 396-97 (upholding N.J.A.C. 17:1-6.4 but slightly modifying
subsection (b)(5)). N.J.A.C. 17:1-6.4(a) requires that "each disability retirement
applicant must prove . . . a total and permanent disability that renders the
A-3834-19
15
applicant physically or mentally incapacitated from performing normal or
assigned job duties."
However, "[a] regulation may apply retroactively if the Legislature or
agency has expressed that intent, either explicitly or impliedly, and retroactive
application would not cause a manifest injustice or an interference with a vested
right." Rahway Hosp. v. Horizon Blue Cross Blue Shield of N.J., 374 N.J.
Super. 101, 112 (App. Div. 2005) (citing State Troopers Fraternal Ass'n v. State,
149 N.J. 38, 54 (1997)). Here, N.J.A.C. 17:1-6.4 neither explicitly nor impliedly
expresses an intent of retroactive application. Therefore, the Board was required
to apply the prior standard and properly did so.
Prior to the passing of N.J.A.C. 17:1-6.4, in order to qualify for ordinary
disability retirement benefits under N.J.S.A. 18A:66-39(b), an applicant must
establish by a preponderance of the credible evidence that he or she is
"physically or mentally incapacitated for the performance of duty and should be
retired." "The applicant 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., Tchrs. Pension &
Annuity Fund, 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)); see also Kasper,
A-3834-19
16
164 N.J. at 573 ("Ordinary disability is conferred when a teacher . . . is
'physically or mentally incapacitated for the performance of duty and should be
retired.'" (quoting N.J.S.A. 18A:66-39(b))).
A disabling condition requires an applicant to prove "incapacity to
perform duties in the general area of his [or her] ordinary employment." Skulski
v. Nolan, 68 N.J. 179, 205-06 (1975). An applicant is "physically or mentally
incapacitated" if he or she is not "employable in the general area of his ordinary
employment." Bueno, 404 N.J. Super. at 129 (quoting Getty v. Prison Officers'
Pension Fund, 85 N.J. Super. 383. 390 (App. Div. 1964)). Moreover, an
applicant is not inherently disabled merely because he or she "is disabled from
performing the specific function for which he [or she] was hired." Ibid. (quoting
Getty, 85 N.J. Super. at 390); see also id. at 131. ("No reported decision has
been called to our attention where an ordinary disability retirement pension was
granted to a teacher who only established an inability to perform his or her
specific job for a specific board of education nor have we found one.").
Nor is an applicant considered disabled if he or she can "teach[] in a more
supportive environment." Bueno, 404 N.J. Super. at 127. If an applicant is no
longer able to perform his or her assigned job duties and a school district has no
alternative work available, the applicant, at a minimum, must prove:
A-3834-19
17
an "incapacity to perform duties in the general area of
his [or her] ordinary employment" for other employers
and may even be required to prove [an] "inability to
perform substantially different duties or . . . produce
evidence of [his or her] general physical [or mental]
unemployability" in order to qualify for ordinary
disability retirement benefits.
[Bueno, 404 N.J. Super. at 131 (third and fifth
alterations in original) (quoting Skulski, 68 N.J. at
206).]
An applicant is deemed disabled if no supportive environment exists. See, e.g.,
In re Grossman, 157 N.J. Super. 165, 168 (App. Div. 1978) (finding a teacher
disabled for pension purposes where no school district would employ the teacher
because of her medical "status and the feared effect that may have on [the] pupils
she m[ay] be called upon to teach").
Here, based upon our careful review of the record, we are convinced the
Board applied the appropriate legal standard in determining petitioner was not
incapacitated from her duties as a schoolteacher. In its May 15, 2020 final
decision, the Board noted an applicant's entitlement to ordinary benefits requires
an applicant [to] establish an incapacity to perform
duties in the general area of her regular employment,
rather than merely showing an inability to perform his
or her specific job. The [applicant] must prove by a fair
preponderance of credible evidence in the record that
[the applicant] is physically or mentally incapacitated
for the performance of duty at the time of separation
from service; specifically, that [the applicant] is
A-3834-19
18
permanently and totally disabled from the general area
of [the applicant's] ordinary employment, as
distinguished from the specific function for which [the
applicant] was hired.
[(citing in part Bueno, 404 N.J. Super. at 130-31(emphasis added) (internal citations omitted); Getty, 85
N.J. Super. at 390).]
Petitioner further argues the Board's inclusion of the term "permanently
and totally disabled" signifies its misapplication of the appropriate, pre-N.J.A.C.
17:1-6.4, legal standard. But, petitioner's argument ignores: (1) the Board's
inclusion of the term "physically or mentally incapacitated," see N.J.S.A.
18A:66-39(b) (requiring proof "the [applicant] is physically or mentally
incapacitated for the performance of duty"); (2) the Board's numerous citations
to the appropriate case law, see Bueno, 404 N.J. Super. at 131; see also Getty,
85 N.J. Super. at 390 ("[T]he criterion is whether or not [an applicant] is
employable in the general area of his [or her] ordinary employment, as
distinguished from whether he [or she] is generally unemployable or is disabled
from performing the specific function for which [the applicant] was hired."
(citations omitted)); and, most importantly, (3) the context in which the term
"permanently and totally disabled" was included.
The Board noted "the [applicant] must prove . . . she is permanently and
totally disabled from the general area of her ordinary employment, as
A-3834-19
19
distinguished from the specific function[s] for which she was hired." (emphasis
added); see Bueno, 404 N.J. Super. at 130 ("[T]he applicant must establish
incapacity to perform duties in the general area of his [or her] ordinary
employment rather than merely showing inability to perform the specific job for
which he [or she] was hired." (emphasis added) (quoting Skulski, 68 N.J. at 205-
06)).
Nor has petitioner cited "case law in support of her proposition" that a
"permanent and total disability" is a legal standard separate and distinct from a
"physical or mental incapacitation." The term "permanent and total" is neither
new nor recently established by the passing of N.J.A.C. 17:1-6.4. "[T]here are
two ways in which an educational professional can receive retirement benefits
upon becoming permanently incapacitated: ordinary disability[, N.J.S.A.
18A:66-39(b),] and accidental disability[, N.J.S.A. 18A:66-39(c).]" Kasper,
164 N.J. at 573. "Ordinary disability is conferred when a teacher . . . is
'physically or mentally incapacitated . . . .'" Ibid. (citing N.J.S.A. 18A:66-
39(b)). In contrast, "[a]ccidental disability is awarded 'if a [teacher] is
permanently and totally disabled.'" Ibid. (citing N.J.S.A. 18A:66-39(c)).
Because "higher benefits flow to the recipient of an accidental disability,"
these two pensions "are dramatically different." See id. at 573-74 (citations
A-3834-19
20
omitted) ("[T]he standards applicable to [accidental benefits] are more stringent
than those applicable to [ordinary benefits]."). "The main difference between
the two," however, "is that ordinary disability . . . need not have a work
connection." Patterson, 194 N.J. at 43-44 (citations omitted). "[I]ncapacitation
is all that is required." Kasper, 164 N.J. at 574 (emphasis added).
Courts have used both terms interchangeably when reviewing a Board's
denial of an application for ordinary benefits. See, e.g., Bueno, 404 N.J. Super.
at 124 (noting in reviewing the petitioner's application for ordinary di sability
"[t]he sole issue before the Board was whether [the applicant] was totally and
permanently incapacitated from the performance of her regular and assigned
duties as a teacher." (emphasis added)). Thus, the Board’s mere inclusion of the
term "permanently and totally disabled" does not inherently signal the Board’s
misapplication of the appropriate legal standard.
Here, petitioner was not required to merely prove her condition disabled
her from performing the specific duties of "her job as a middle school math
teacher." Under the appropriate legal standard, as applied by the Board,
petitioner was required to prove her condition disabled her from performing "the
general area of [her] ordinary employment." Bueno, 404 N.J. Super. at 130(alteration in original) (quoting Skulski, 68 N.J. at 205). In reviewing the facts
A-3834-19
21
of the case, the Board "recognize[d], as did the ALJ, that the inability to perform
some aspects of a position does not always equate to incapacitation from the
general area of a member's ordinary employment." And, the Board noted
petitioner had the "option to request accommodation[s]" for her condition, such
as the "use of the elevator[,]. . . a schedule that did not require her to travel
between floors[,] [or] [s]he . . . could have utilized a wheelchair or a cane for
her classroom duties."
The Board found petitioner's "failure to seek accommodation[s] severely
undermine[d] her claim of disability." Therefore, "[t]he Board determined that
the medical evidence in the record better support[ed] a finding that [petitioner]
is not incapacitated from her duties such that she should be retired." (citing in
part N.J.S.A. 18A:66-39(b)); see Bueno, 404 N.J. Super. at 127 (holding an
applicant is not disabled if he or she may have continued to "teach[] in a more
supportive environment"). Thus, there is no showing that the Board's decision
was arbitrary, capricious, or unreasonable and is supported by the credible
evidence in the record. In her brief, petitioner does not contest the Board's
conclusions on any basis other than the Board erred in its application of the
proper standard.
Affirmed.
A-3834-19
22