The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2143-24
KIMBERLY LEFTWICH,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
Argued May 4, 2026 – Decided May 28, 2026
Before Judges Sabatino and Walcott-Henderson.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. xx2940.
Samuel M. Gaylord argued the cause for appellant
(Szaferman Lakind Blumstein & Blader, PC, attorneys;
Samuel M. Gaylord, on the briefs).
Raquel Y. Bristol, Deputy Attorney General, argued the
cause for respondent (Jennifer Davenport, Attorney
General, attorney; Janet Greenberg Cohen, Assistant
Attorney General, of counsel; Raquel Y. Bristol, on the
briefs).
PER CURIAM
This pensions case returns on appeal following a remand we ordered in
our March 20, 2024 unpublished opinion. See Leftwich v. Pub. Emps.' Ret. Sys.,
No. A-1023-22 (App. Div. Mar. 20, 2024). In that opinion, we directed the
Public Employees' Retirement System ("PERS") to reconsider its denial of
accidental disability retirement benefits under N.J.S.A. 43:15A-46 sought by
appellant Kimberly Leftwich, a former State employee. Id. at 2.
We remanded the case because the administrative law judge ("ALJ") who
had presided over appellant's hearing and, thereafter, the PERS Board, both used
an overly stringent causation standard, requiring appellant to prove that her
September 2015 workplace accident—in which she was assaulted by a patient
at the New Lisbon Development Center—was the "sole" or "primary" cause of
her disability. As we instructed, the proper causation standard under Gerba v.
Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 174, 187 (1980) instead is that the
workplace incident be a "significant or substantial contributing cause" of the
injury.
On remand, the parties chose to rely on the existing record, which had
been presented in testimony before the ALJ in February and May 2021, along
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with numerous medical reports and records. At the conclusion of the remand
proceeding, the same ALJ once again rejected appellant's claim in a December
27, 2024 written decision. The Board then adopted the remand decision, without
qualification, in a final agency decision dated March 20, 2025.
Unfortunately, for reasons we now explain, the ALJ's remand decision is
flawed, as it conflicts with the Board's previous determination granting appellant
"ordinary" disability benefits under N.J.S.A. 43:15A-42 and continues to fault
appellant for not showing the workplace assault was "the" cause of her
condition.
The following timeline provides useful context. On September 1, 2015,
appellant was injured at her workplace when she was attacked by a patient.
Appellant obtained medical treatment but continued to work at the facility for
approximately eight months after the September 2015 incident. She resigned
from her job in May 2016. Appellant then worked approximately eighteen
months in another position, eventually retiring effective January 1, 2018.
On October 2, 2017, appellant submitted to PERS an application for
accidental disability retirement benefits. As part of that application, appellant
was concurrently considered for ordinary disability benefits. See N.J.A.C. 17:2-
6.26(d) (enabling a single application form to cover a claim for both ordinary
and accidental benefits). Appellant relied on the results of medical examinations
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of various physicians, several of whom (although not uniformly) opined that she
was disabled from performing her job duties.
Importantly for the present appeal, on April 1, 2018, the Board granted
appellant ordinary disability retirement benefits. By granting such benefits, the
Board concluded that, based on the presented medical information, appellant
was "physically or mentally incapacitated for the performance of duty and
should be retired." N.J.S.A. 43:15A-42. That determination of disability tracks
the pertinent regulation, N.J.A.C. 17:2-6.1(g)(3), which states:
To qualify for disability retirement, a member must be
unable to perform his or her regular and assigned duties
due to a permanently disabling medical condition
present at the time the member separates from service,
as a result of which disabling condition the member
should be retired.
[(Emphasis added).]
Hence, the Board conclusively determined in April 2018 that, at the time
appellant "separated from service," she was disabled and "unable to perform . . .
her regular and assigned duties due to [that] permanently disabling medical
condition." Ibid.
We note that such a determination approving ordinary disability
benefits—in contrast to accidental disability benefits—does not require the
disabling condition to be "a direct result of a traumatic event occurring during
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and as a result of the performance of [the employee's] regular or assigned
duties." N.J.S.A. 43:15A-43 (defining eligibility for accidental disability
retirement benefits). The common element of both benefit categories is simply
that the employee be permanently disabled. Eligibility for accidental benefits
adds the causation requirement that our Supreme Court illuminated in Gerba, 83
N.J. at 187.
In her original decision issued on September 6, 2022, the ALJ denied
appellant's accidental disability claim, concluding the September 2015
workplace incident was not the "direct cause" of her disability. Fundamentally,
the ALJ found the testimony of appellant's medical expert on that subject less
credible than that of the Board's expert. In essence, the ALJ was persuaded that
appellant's condition was solely or primarily caused by underlying degenerative
factors. Notably, however, the ALJ's first decision accepted the premise that
appellant is, indeed, disabled.
The Board adopted the ALJ's first decision on October 25, 2022.
Appellant appealed, and as we noted above, we vacated the denial of accidental
benefits because the ALJ and the Board had applied an incorrect causation
standard. Among other things, we noted that the ALJ's legal analysis
"overlook[ed] the logical possibility that a pre-existing, asymptomatic condition
could have been 'significant' or 'substantial,' and that the work-related injury
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also could have been 'significant' or 'substantial.' One does not necessarily rule
out the other from playing a role in the chain of causation." Leftwich, slip op.
at 10. We specifically instructed that "the matter be remanded to the ALJ
through the Board for amplified causation findings in accordance with [our]
opinion." Id. at 12.
On remand, however, the ALJ strayed from that direction and instead re-
visited the already established core premise that, as the Board previously found
in April 2018, appellant was permanently disabled at the time she separated from
State service. The ALJ went down this path by reconsidering the medical
information in the record and concluding that "there is no contemptuous[1]
evidence to demonstrate that she was unable to perform her duties at the time of
her retirement." (Emphasis added). But that determination of disability is the
law of the case—a finding that was repeated by this court in our March 2024
opinion. Id. at 4-5. The ALJ critically erred in adopting a contrary finding. See
Baker v. Nat'l State Bank, 353 N.J. Super. 145, 170 (App. Div. 2002).
This error was not minor because the supposed lack of proven disability
was a key aspect of the remand decision's analysis. The causation assessment
was materially tainted by the error. In fact, in the same paragraph, the remand
1
This appears to be a typographical error, albeit of a key term. We suspect the
ALJ meant to say "contemporaneous."
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decision also observed that "the [traumatic] events that occurred here were not
so major as to be the cause of the degeneration." (Emphasis added). As we
emphasized in our first opinion, under Gerba, 83 N.J. at 187, a claimant does
not have to prove the traumatic workplace event was "the cause" or even the
"primary" cause of the disability; it only needs to be substantial and significant.
Given these errors, we are constrained to remand the case a second time
for appropriate reconsideration. On remand, the matter should be assigned to a
different ALJ, even though that successor ALJ will not have presided over the
hearings five years ago. We direct such reassignment in an abundance of caution
"to avoid any claim of partiality based on the . . . judge's [previous] factual
findings and legal conclusions." N.J. Div. of Child Prot. & Permanency v.
A.M.W., 480 N.J. Super. 496, 508 (App. Div. 2024).2
Vacated and remanded. We do not retain jurisdiction.
2
For sake of completeness, we note that appellant's citation to this court's recent
opinion in H.F. v. Bd. of Trs., Police & Firemen's Ret. Sys., 483 N.J. Super. 166
(App. Div. 2026) does not materially affect the eligibility analysis in this case.
The focus of the H.F. opinion was on whether mental health disabilities should
be treated in like fashion as physical injuries under the disability pension laws,
see id. at 171-82, which is not a pertinent concern in the present case. That said,
we appreciate counsel for bringing the opinion to our attention and their
thoughtful post-argument supplemental letter briefs.
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