Opinion
DOCKET NO. A-5534-12T1
08-10-2015
RITA LINDER-LAVERY, Petitioner-Appellant, v. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND, Respondent-Respondent.
Bergman and Barrett, attorneys for appellant (Michael T. Barrett, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nels J. Lauritzen, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Maven. On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, Department of Treasury. Bergman and Barrett, attorneys for appellant (Michael T. Barrett, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nels J. Lauritzen, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Rita Linder-Lavery appeals from the June 7, 2013 decision of the Board of Trustees (Board), Teachers' Pension and Annuity Fund (TPAF) denying her application for accidental disability benefits pursuant to N.J.S.A. 18A:66-39. For the reasons that follow, we affirm.
I.
The Administrative Law Judge's (ALJ) findings of fact, adopted by the Board, are essentially undisputed.
Linder-Lavery is a former employee of the North Plainfield Board of Education (the District) where she worked as a school social worker on the child study team from 2000 until 2010. In that role, Linder-Lavery frequently traveled from her office at the Department of Special Services to all seven of the District's schools. On occasion, she would visit schools that were out-of-district. Traveling to these meetings involved walking to and from buildings and climbing stairs. Only two of the District's seven schools had elevators.
Linder-Lavery also maintains a private practice where she works part-time, approximately four days per week, and did so while she was working for the District. Her private office is located approximately five minutes from her home and has on-site parking. To access her office she has to walk up approximately eight steps.
On Tuesday, September 22, 2009, Linder-Lavery was at the Department of Special Services' building shortly after 4:00 p.m. As she carried binders containing students' files to her car, she stumbled in an unfilled pothole, bending her foot forward. She returned to work at the school the following Wednesday and Thursday, but self-treated her injury by icing and elevating her foot. On Thursday evening, after realizing the injury was more severe than she first thought, she contacted her managed-care organization and was granted permission to have an x-ray taken. The x-ray indicated breaks in the second and fifth metatarsal bones. She informed her managed-care organization of the results and was told she would be contacted the next day with instructions on which orthopedist to visit. She reported the incident in an official capacity on Friday.
Although Linder-Lavery submitted the accident report regarding the September 22, 2009 incident to the superintendent's office on October 13, 2009, the District did not finalize its portion of the form until January 25, 2011.
Linder-Lavery did not return to work and underwent foot surgery in October 2009. In November or December 2009, she started experiencing pain and swelling and was in more pain than before her surgery. The surgeon determined that she was suffering from complex regional pain syndrome (CRPS). A pain-management specialist confirmed that diagnosis. Linder-Lavery began pain management treatment with Dr. Preshant Patel. She was prescribed narcotic medications including Vicodin, Prozac, Toprol, and Vyvanse. She also underwent five surgical sympathetic nerve blocks to numb the left side of her body. She continues to take Vicodin, as her pain worsens when she is more active.
In January 2010, the District required her to see its workers' compensation physician, Michael H. Rieber, M.D. He continued her medical leave for approximately five to six months. Although she continued to experience pain, Linder-Lavery expressed her willingness to return to work for the current school year. Dr. Rieber released her to work in June 2010. He advised that she should continue treatment with a foot and ankle specialist. She continued to treat with Dr. Patel for pain management.
In July, her attorney received a letter from the District indicating that it was prepared to certify tenure charges against Linder-Lavery based upon her alleged dishonesty regarding her injury. In October, Linder-Lavery signed an agreement to voluntarily resign from the District on March 1, 2011, in exchange for four months of salary and medical benefits.
The letter asserts that this was the third time Linder-Lavery "mysteriously injured the same foot in the same parking lot under similar circumstances" and that she failed to appropriately communicate with the District about her injury.
In the interim, Linder-Lavery filed an application for accidental disability retirement on September 29, 2010. In May 2011, the Board denied her application, determining that, while the incident was "identifiable as to time and place" and was "undesigned and unexpected," the event "did not occur during and as a result of [her] regular or assigned duties," and there was "no evidence in the record of direct causation of a total and permanent disability." Linder-Lavery appealed the decision and also requested the Board's reconsideration.
The Board denied the request for reconsideration, and instead transferred the matter to the Office of Administrative Law as a contested case. At Linder-Lavery's insistence, the Board reconsidered its decision at its September 2012 meeting. After reviewing all prior submissions and additional documentation from both parties, and the statements made by Linder-Lavery and her counsel at the meeting, the Board reaffirmed its prior determination denying benefits because the injury did not occur during and as a result of her regular or assigned duties and because she was not totally and permanently disabled. However, the Board reversed its finding that the September 22, 2009 incident was identifiable as to time and place and was undesigned and unexpected, based upon inconsistent statements made by Linder-Lavery at the meeting.
These two findings are not challenged on appeal.
The ALJ held a hearing on October 18, 2012, and heard testimony from Linder-Lavery, David Weiss, M.D., her orthopedic expert, and Jane Delaney, the District's Director of Pupil Services. Linder-Lavery testified that she tripped in the parking lot at the Department of Special Services while carrying binders containing students' records as she was leaving work for the day. She stated that she could not perform her duties for the District in her present condition because she lacked the required mobility. She said she was able to work in private practice because it involved relatively little mobility. Delaney testified that the District had been prepared to make accommodations during the 2009-10 school year had Linder-Lavery been cleared to return to work.
Dr. Weiss testified that he reviewed Linder-Lavery's patient history and medical records, reviewed the Board's expert report prepared by Dr. Joseph Corona, and performed a physical examination. Reaching the same conclusion as the Board's expert, Dr. Weiss found that Linder-Lavery was permanently and totally disabled from any job in more than one location with more than approximately ten steps.
The ALJ noted in his decision that, although Dr. Corona did not testify, his report had been submitted in evidence, and had concluded that Linder-Lavery was totally and permanently disabled "because the claimant requires narcotic usage on a regular basis and because the claimant's travel from one building to another working for the [District] creates excessive hardship for her, rendering her incapable of working in a school setting as described in the text above."
On April 26, 2013, the ALJ found that Linder-Lavery was not entitled to accidental disability retirement benefits because the September 22, 2009 accident did not occur during her regular and assigned duties and because she was not totally and permanently disabled from her regular and assigned duties. The Board adopted the ALJ's initial decision with modification. The Board elaborated that the ALJ's conclusion that Linder-Lavery's injury was a direct result of the accident does not equate to a finding that she was disabled as a direct result of a traumatic event as required by N.J.S.A. 18A:66-39(c). The Board also reasoned that because the ALJ found that Linder-Lavery was not totally and permanently disabled, but only disabled from her specific position with the District, whether her injury was a direct result of the incident has no bearing on her eligibility for accidental disability retirement benefits. This appeal followed.
II.
We begin with a review of the well-established legal principles that guide our analysis. Our review of an agency's decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011); Messick v. Bd. of Review, 420 N.J. Super. 321, 324 (App. Div. 2011). Agency decisions are given a strong presumption of reasonableness, and we will generally not reverse such a decision unless it was arbitrary, capricious, or unreasonable, or not supported by evidence in the record. Thurber v. City of Burlington, 387 N.J. Super. 279, 301-02 (App. Div. 2006), aff'd, 191 N.J. 487 (2007).
We also review factual findings made by an administrative agency deferentially. On appeal, "the 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 Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)) (internal quotation marks omitted). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
The Board has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)). However, the Board must still "state clearly the reasons for doing so." N.J.S.A. 52:14B-10(c); see N.J.A.C. 1:1-18.6(b). Thus, an appellate court is only entitled to review those findings and recommendations in its overview of the record for the purpose of determining whether or not the Board's findings are supported by substantial credible evidence." N.J. Dep't of Pub. Advocate, supra, 189 N.J. Super. at 507 (internal citation omitted) (citing In re Silberman, 169 N.J. Super. 243, 255-56 (App. Div. 1979), aff'd, 84 N.J. 303 (1980)). The burden of proof in this regard rests upon the party challenging the agency's determination. McGowan v. N.J. State Parole Bd., 34 7 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).
N.J.A.C. 1:1-18.6(b) reads:
The agency head may reject or modify conclusions of law, interpretations of agency policy, or findings of fact not relating to issues of credibility of lay witness testimony, but shall clearly state the reasons for so doing. The order or final decision rejecting or modifying the initial decision shall state in clear and sufficient detail the nature of the rejection or modification, the reasons for it, the specific evidence at hearing and interpretation of law upon which it is based and precise changes in result or disposition caused by the rejection or modification.
Here, Linder-Lavery seeks accidental disability retirement benefits. Under the TPAF Law, N.J.S.A. 18A:66-1 to -93, an education professional upon becoming permanently incapacitated can receive retirement benefits of either ordinary disability or accidental disability. Kasper v. Bd. of Trs. of Teachers' Pension & Annuity Fund, 164 N.J. 564, 573 (2000) (citing N.J.S.A. 18A:66-39(b), (c)). The Supreme Court evaluated the requirements for an accidental disability retirement allowance under TPAF and other major public employee pension funds, stating:
The organizing principle is that one who is at the employer's premises solely to do his or her duty, and who, while doing what he or she is expected to do, is disabled by a traumatic accident, will qualify for inclusion in the class of those injured "during and as a result of the performance of his regular or assigned duties." That interpretation is faithful to the Legislature's restorative vision in amending N.J.S.A. 18A:66-39(c). As we previously noted, the amendment was not transformative. It was not intended to limit the accidental disability pension solely to an injury sustained while a teacher is writing on the blackboard in her classroom or a policeman is actually engaged in an arrest. On the contrary, it was meant to restore the integrity of the premises rule; to reinvigorate the going and coming rule; and to qualify for an accidental disability pension an employee who is on premises
controlled by the employer and whose injury is causally connected, as a matter of common sense, to the work the employer has commissioned.
[Id. at 587-88.]
In Richardson v. Board of Trustees, Police & Firemens' Retirement System, 192 N.J. 189, 212-13 (2007), the Supreme Court again considered the requirements and determined that an individual seeking accidental disability benefits must establish:
1. that he is permanently and totally disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);
3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
4. that the disability was not the result of the member's willful negligence; and
5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
[(Emphasis added).]
III.
Linder-Lavery contends the ALJ and the Board erred in determining that her injury did not occur "during and as a result of" her employment and that she was not totally and permanently disabled under N.J.S.A. 18A:66-39(b). Applying our highly deferential standard of review, we conclude that there is substantial credible evidence in the record to support the Board's finding that Linder-Lavery failed to show entitlement to accidental disability benefits.
The ALJ found that Linder-Lavery's accident occurred as she carried files to her car after the end of the school day in the parking lot outside of the school building. The ALJ concluded that, "[a]lthough her willingness to bring work home was commendable, she [did] not introduce evidence that working at home after school hours or bringing students' files home for review was part of her regular or assigned duties." Linder-Lavery relies on Kasper, supra, 164 N.J. at 572-73, as support for the proposition that her injury occurred "during and as a result of" her employment. However, Kasper is distinguishable from the present matter.
In Kasper, the plaintiff, an education media specialist, was assaulted on the stairway entrance to a school prior to the commencement of the school day. Id. at 570. The plaintiff's early arrival resulted because she was tasked with distributing media materials prior to the official start of classes. Id. at 571. The Court concluded that the plaintiff was injured "as a result of" her employment since she had "completed her commute . . . [and] was at the school, at the expected time, to distribute media materials as she was required to do. . . . [S]he was engaged in conduct that was, in every sense, preliminary but necessary to her early workday[.]" Id. at 588.
The Court noted:
[A]n employee may qualify for an accidental disability pension as a result of a traumatic injury occurring prior to the start of or after the end of the formal workday, so long as the employee is at premises owned or controlled by the employer for the purpose of performing his or her regular duties and not for some other purpose. Obviously excluded are employees who arrive at work long before the required hour for a card game in the teachers' lounge, to avoid the traffic, read the paper, pay bills, or socialize[.]
[Id. at 587.]
Here, by contrast, Linder-Lavery was not carrying students' records in response to a request from her supervisors or as a result of a designated assignment. She voluntarily carried the files to her car to accommodate her personal preference to complete work at home. Thus, we conclude her injury did not occur "as a result of the performance of [her] regular or assigned duties[.]" N.J.S.A. 18A:66-39(c). See Kasper, supra, 164 N.J. at 588 (stating an employee's injury must be "causally connected . . . to the work the employer has commissioned").
The ALJ also concluded that Linder-Lavery was not totally and permanently disabled under N.J.S.A. 18A:66-39(b). The judge found that Linder-Lavery failed to satisfy her burden of demonstrating "an incapacity to perform duties in the general area of her ordinary employment as a school social worker." See Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super. 119, 126 (App. Div. 2008), certif. denied, 199 N.J. 540 (2009). Linder-Lavery argued then, as she does now, that she is unable to ambulate in any meaningful way. While her injury is undisputed, the ALJ relied on Linder-Lavery's testimony regarding her continuing private practice and her expert's testimony to find that she is not incapable of performing the duties of a school social worker.
"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." Ibid. The member must establish an incapacity to perform duties in the general area of his or her regular employment, rather than merely showing an inability to perform his or her specific job. Id. at 130-31.
In this case, Linder-Lavery only showed an inability to perform her specific job, due to the significant movement required to travel to seven schools, rather than an incapacity to perform duties in the general area of her ordinary employment as a school social worker. Dr. Weiss testified only that the injury limits Linder-Lavery's ability to work any job in more than one location with more than approximately ten steps. Linder-Lavery is not precluded from working in another position as a school social worker, as evidenced by her ability to maintain her private practice and the District's willingness to accommodate her condition.
Based upon the factual scenario presented here, and in light of controlling law, we agree with the Board that Linder-Lavery's claim does not satisfy the criteria for eligibility for accidental disability benefits. Therefore, we conclude that the Board's decision was not arbitrary, capricious, or unreasonable, and was supported by sufficient credible evidence. R. 2:11-3(e)(1)(D). Accordingly, there is no basis to alter the Board's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION