The opinion
NOT FOR PUBLICATION WITHOUT THE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-4622-19
LOIS SPAZIANI,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________
Argued December 16, 2021 – Decided January 3, 2022
Before Judges Haas and Mawla.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. x-xxxx048.
Samuel M. Gaylord argued the cause for appellant
(Gaylord Popp, LLC, attorneys; Samuel M. Gaylord, on
the brief).
Jonathan W. Allen, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Jonathan W.
Allen, on the brief).
PER CURIAM
Appellant appeals from a final determination of the Board of Trustees of
the Public Employees' Retirement System (Board) denying her application for
ordinary disability retirement benefits under N.J.S.A. 43:15A-42. We affirm.
Appellant worked as a charge nurse at Hagedorn Psychiatric Hospital for
almost ten years. A few months before she resigned her position, the State
transferred her to Greystone Park Psychiatric Hospital. As a result, appellant
had a much longer daily commute, and she complained her co-workers at the
new facility were unkind to her. She also suffered increased pain from arthritis
and other physical ailments. Appellant asserted these events caused her long-
standing depression to deepen.
Appellant resigned her position on September 30, 2013, and filed an
application for ordinary disability retirement benefits. In her application,
appellant claimed she was disabled from "acute and chronic pain with numbness
in thumbs and great toes due to nerve damage, [and] recurring depression."
However, an October 23, 2014 independent orthopedic examination revealed
that appellant's physical injuries were "fully resolved with no clinical residual
except for mild pain on range of motion." Thereafter, appellant's application
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proceeded solely on her claim she was permanently and totally disabled as a
result of depression.
In support of her application, appellant submitted a May 11, 2013 letter
from Terrence P. Brennan, M.A., a licensed psychologist, who had been treating
appellant since 1995. Brennan stated appellant "has suffered with long term,
moderate levels of depression that can best be characterized by the diagnosis of
Dysthymic Disorder."
Appellant also submitted a July 29, 2013 "Ability to Do Work-Related
Activities" form completed by Natalie Paul, PsyD. Paul diagnosed appellant
with depressive disorder, not otherwise specified (NOS). Paul described
appellant's symptoms as ranging from mild to moderate. 1
The Board denied appellant's retirement application on April 16, 2015.
She requested a hearing, and the Board transferred the matter to the Office of
Administrative Law as a contested case.
The Board's expert in psychology, Dr. Daniel LoPreto, examined
appellant on December 29, 2015. LoPreto reviewed the Brennan and Paul
1
The form defined the term "mild" as "a slight limitation in this area, but the
individual can generally function well." The form defined the term "moderate"
as "more than a slight limitation in this area but the individual is still able to
function satisfactorily."
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reports and conducted psychological testing. Based upon his evaluation,
LoPreto concluded appellant was not totally and permanently disabled when she
submitted her retirement application in September 2013.
LoPreto testified that Brennan, who was appellant's treating psychologist,
diagnosed her in May 2013 with Dysthymic Disorder, "which is not disabling."
LoPreto also noted that Paul diagnosed appellant in July 2013 with depressive
disorder, NOS, which was also not a disabling condition as evidenced by Paul's
conclusion that appellant's symptoms were only mild or moderate. Thus,
LoPreto opined appellant was not totally and permanently disabled when she
filed her retirement application in September 2013.
LoPreto agreed appellant became disabled after she left employment.
However, he stated this did not occur until her son's death on October 24, 2014
at the earliest. At that point, LoPreto testified "the switch flipped" and appellant
"couldn't leave her house. She walked around in her pajamas. She herself said
that was a significant loss for her."
Appellant's expert psychologist, Dr. William Dennis Coffey, did not
examine her until September 12, 2017, four years after she applied for disability
benefits. In his April 11, 2018 report, Coffey stated:
After reviewing the records[,] it was clear that
[appellant] was applying for social security disability
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and I feel that this creates a conflict of interest for me
given the fact that I consult for the Department of
Disability Determinations. As such I feel that I am not
in a position to make a statement regarding [appellant's]
disability.
When the Board's attorney asked Coffey at the hearing whether appellant was
totally and permanently disabled when she left employment, Coffey replied:
I apologize for my response to this but I cannot say
because I don't know what those statutes are or how to
apply them but I what I would say is that at the time she
left work she was totally disabled as a result of the
major depression and pain and I would not be able to
make a determination about her ability to return to work
[and] that there would be no date of return to work at
that time.
Although Coffey opined appellant suffered from major depression that
prevented her performing her regular duties, he also "recommended that she be
re-engaged in psychotherapeutic treatment in an effort to address her now
chronic symptoms."
On May 6, 2020, the Administrative Law Judge (ALJ) issued an initial
decision and concluded that appellant "was totally and permanently disabled
from her position as a charge nurse at the date of her application in September
2013." In so ruling, the ALJ stated she gave greater weight to Coffey's testimony
because she felt LoPreto focused more on the death of appellant's son in October
2014 than the events immediately preceding the September 2013 application.
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After reviewing the ALJ's initial decision and the entire record, the Board
rejected the ALJ's recommendation. In its July 16, 2020 final decision, the
Board credited LoPreto's testimony that appellant was not totally and
permanently disabled at the time she filed her application. The Board noted that
Coffey had not been able to address the primary issue involved in this case
because an apparent conflict with his other employment prevented him from
opining whether appellant was permanently disabled. The Board also relied
more heavily on LoPreto's expert testimony because he fully considered the
contemporaneous reports prepared by Brennan and Paul, who did not diagnose
appellant as totally and permanently disabled in 2013.
On appeal, appellant argues the Board erred in denying her application for
ordinary disability benefits and contends she established by a preponderance of
the credible evidence that she was "permanently disabled from the performance
of her regular and assigned duties as a charge nurse." We disagree.
"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)). "An administrative agency's final quasi-
judicial decision will be sustained unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair support in the record."
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Ibid. (quoting Herrmann, 192 N.J. at 27-28). Our review of an agency's decision
is limited to considering:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (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 the relevant factors.
[In re Proposed Quest Acad. Charter Sch. of Montclair
Founders Grp., 216 N.J. 370, 385-86 (2013) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
We are required to affirm an agency's findings of fact if "supported by
adequate, substantial and credible evidence." In re Taylor, 158 N.J. 644, 656-
57 (1999) (quoting Rova Farms Resort, Inc. v. Inv's. Ins. Co., 65 N.J. 474, 484
(1974)). Moreover, if we are "satisfied after [our] review that the evidence and
the inferences to be drawn therefrom support the agency head's decision, then
[we] must affirm even if [we] feel[] that [we] would have reached a different
result . . . ." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).
N.J.S.A. 43:15A-42 provides that a Public Employees' Retirement System
member is eligible for ordinary disability retirement benefits if he or she is
"physically or mentally incapacitated from the performance of a duty and should
be retired." The member must establish "that he or she has a disabling condition
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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).
The applicant must also show that the disabling condition is total and permanent.
See Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 42 (2008);
Bueno, 404 N.J. Super. at 122, 126. In addition, "[t]o 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." N.J.A.C. 17:2-6.1(f)(3).
Contrary to appellant's argument, the Board was not required to simply
accept the ALJ's finding that the Coffey's expert testimony was more persuasive
than LoPreto's opinions. Because these were expert witnesses, the Board was
able to make its own determination as to the probative value of the testimony.
ZRB, LLC. v. N.J. Dep't of Env't. Prot., 403 N.J. Super. 531, 561-62 (App. Div.
2008). In rejecting the ALJ's conclusion that Coffey's opinions warranted
greater weight, the Board stated with particularity its reasons for doing so and it
thoroughly explained "why the ALJ's decision was not supported by sufficient
credible evidence or was otherwise arbitrary." Cavalieri v. Bd. of Trs., Pub.
Emps. Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004).
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In crediting LoPreto's testimony, the Board noted Coffey could not state
whether appellant was totally and permanently disabled at the time of her
application. In addition, LoPreto's analysis fully analyzed the contemporaneous
Brennan and Paul reports, while Coffey merely mentioned them in passing.
Finally, Coffey conceded appellant's condition might be treatable as LoPreto
suggested. Thus, the Board properly found that Coffey's limited opinion was
entitled to little weight.
Applying our highly deferential standard of review, we are satisfied there
is sufficient credible evidence in the record to support the Board's determination
that appellant failed to meet her burden of proving she qualified for ordinary
disability benefits pursuant to N.J.S.A. 43:15A-42. Because the Board's
determination was neither arbitrary, capricious, nor unreasonable, we affirm.
Affirmed.
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