Nurya Noriega v. Board of Trustees, Etc.

NOT FOR PUBLICATION WITHOUT THE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-2287-21

NURYA NORIEGA,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES'

RETIREMENT SYSTEM,

Respondent-Respondent.

_________________________

Submitted October 23, 2023 – Decided December 19, 2023

Before Judges Gilson and Berdote Byrne.

On appeal from the Board of Trustees of the Public

Employees' Retirement System, Department of the

Treasury, PERS No. xx4264.

Samuel J. Halpern, attorney for appellant.

Matthew J. Platkin, Attorney General, attorney for

respondent (Sookie Bae-Park, Assistant Attorney

General, of counsel; Brandon Bowers, Deputy Attorney

General, on the brief).

PER CURIAM

Nurya Noriega appeals from a February 17, 2022 final agency decision by

the Board of Trustees of the Public Employees' Retirement System (the Board),

which denied her application for accidental disability retirement benefits.

Noriega argues that the Board erred in denying her request to amend her

application and in failing to merge her appeal of the denial of the amendment

with the denial of her application for accidental disability retirement benefits.

Discerning nothing arbitrary, capricious, or unreasonable in the decisions by the

Board, we affirm.

I.

For approximately sixteen years, Noriega worked for Bergen County as a

motor vehicle operator. She was hired in 2000, and her duties involved driving

vans and buses to transport individuals with disabilities to medical

appointments.

In December 2015, Noriega applied for accidental disability retirement

benefits. In her application, she identified an April 30, 2012, motor vehicle

accident as the traumatic cause of her disability. The Board granted Noriega

ordinary disability retirement, but denied her request for accidental disability

retirement, finding that her disability was the result of a pre-existing condition,

or a pre-existing condition aggravated or accelerated by her work effort.

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Noriega administratively appealed, and the Board transferred the

contested matter to the Office of Administrative Law (OAL) for a hearing.

Before the hearing commenced, Noriega requested to amend her application to

include an additional event as a contributing cause of her disability. In that

regard, Noriega reported that on April 22, 2004, while at work, a passenger

assaulted her and injured her head and neck.

The Board considered but denied Noriega's request to amend her

application. In a February 28, 2019 letter, the Board explained that Noriega's

proposal to include the 2004 incident was inconsistent with the position Noriega

had already taken because, in her then-pending administrative appeal, Noriega

contended that the 2012 motor vehicle accident was the substantial cause of her

disability. The Board also noted that after the 2004 incident, Noriega had

continued to work for over eight years as a driver before she was involved in the

2012 accident.

The Board's February 28, 2019 letter also informed Noriega that if she

disagreed with the Board's determination, she needed to file an administrative

appeal by submitting a written statement to the Board within forty-five days.

On April 5, 2019, Noriega, through her counsel, submitted a letter appealing the

Board's determination to deny her request to amend her accidental disability

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application. Noriega suggested that the denial of her request to amend her

application be considered as part of the pending OAL hearing. The Board never

responded to Noriega's April 5, 2019 letter.

An Administrative Law Judge (ALJ) conducted a two-day hearing on

Noriega's administrative appeal on August 14, 2019, and October 6, 2020. On

the first day of the hearing, Noriega moved to amend her application to include

the 2004 incident. After hearing from counsel, the ALJ determined that the

denial of the request to amend had not been referred to the OAL and, therefore,

the issue was not before him.

During the hearing, the ALJ heard testimony from three witnesses:

Noriega; Dr. Yakov Gologorsky, a neurosurgeon called by Noriega; and Dr.

Andrew Hutter, an orthopedic surgeon called by the Board. Both doctors were

admitted as medical experts.

In her testimony, Noriega described several injuries and accidents that had

affected her head, neck, and upper back. On cross-examination, she

acknowledged that she had been in a motor vehicle accident in 1999 before she

started to work for Bergen County. In that accident, Noriega had injured her

back when a motor vehicle rear-ended the vehicle she was driving.

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Noriega also testified about the April 22, 2004 incident where a passenger

assaulted her. She explained that a passenger of a van she was driving hit her

and knocked her down. She was taken to a hospital, treated, and released the

same day. After approximately one to two weeks, she returned to work.

In November 2004, a Magnetic Resonance Imaging (MRI) was taken of

Noriega's cervical spine. The MRI showed that Noriega had bulging annuli at

C4-5 and C6-7 of her cervical spine. She was prescribed medication and

physical therapy for the pain in her neck and head.

In March 2012, Noriega saw her doctor due to pain in her neck. Her doctor

sent her for an MRI. The MRI report, signed March 11, 2012 and addended on

March 13, 2012, indicated degenerative changes in Noriega's cervical spine from

C3 to C7 and compression of the spinal cord in the cervical region. Following

the MRI, Noriega was prescribed physical therapy.

On April 30, 2012, Noriega was injured in a motor vehicle accident while

at work. She testified that another vehicle struck her vehicle on the driver's side.

Noriega was taken to the hospital, treated, and released that same day.

Thereafter, Noriega was out of work for approximately six months, complaining

of pain in her neck and upper back.

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In June 2012, a doctor sent Noriega for another MRI, which was

performed on June 22, 2012. The MRI did not show any interval changes in

Noriega's cervical spine when compared to the March 9, 2012 MRI. Thereafter,

Noriega was treated for pain in her neck and back by several doctors. In

November 2012, Noriega returned to work and resumed her normal duties.

In April 2015, Noriega began seeing Gologorsky. The following month,

Gologorsky reported that Noriega had "occasional and fleeting cervical pain"

for at least ten years. On June 30, 2015, Gologorsky and an assisting

neurosurgeon performed cervical spine surgery on Noriega.

Gologorsky testified that following the surgery, he considered Noriega

permanently and totally disabled. He opined that the 2012 motor vehicle

accident was a substantial cause of Noriega's disability, but that the 2004

incident also played a contributory role.

Hutter testified on behalf of the Board. He opined that the 2012 accident

was not the primary cause of Noriega's disability. Instead, he opined that her

disability was based on previous degenerative changes in her neck and back.

Hutter also noted that the MRI results from March 2012 and June 2012 did not

reveal any changes, and that Noriega had returned to work performing her full

duties for several years after the 2012 accident.

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On January 20, 2022, the ALJ issued an initial decision affirming the

Board's denial of accidental disability retirement benefits. Relying on the

medical experts' testimony at the hearing, the ALJ found that Noriega's disability

was the result of pre-existing conditions, which included degeneration of

Noriega's cervical intervertebral discs and displacement of her lumbar

intervertebral discs. The ALJ also found that the April 30, 2012 accident was

not the substantial contributing cause of Noriega's disability. Instead, the ALJ

concluded that Noriega's disability was the result of pre-existing conditions that

were aggravated or accelerated by her work. Accordingly, the ALJ dismissed

Noriega's appeal, thereby affirming the Board's denial of Noriega's application

for accidental disability retirement benefits.

Noriega administratively appealed the ALJ's decision to the Board. At a

meeting held on February 16, 2022, the Board adopted the ALJ's decision. The

following day, the Board issued its final agency decision denying Noriega's

application for accidental disability retirement benefits. Noriega now appeals

from the Board's final determination.

II.

On appeal to us, Noriega makes two arguments. She contends that the

Board erred in (1) denying her request to amend her disability application; and

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(2) failing to merge her appeal of the Board's denial of her request to amend

with her appeal of the denial of her application for accidental disability

retirement benefits. We are not persuaded by either of those arguments, and we

affirm the Board's final determination.

Our review of an administrative agency determination is limited. In re

Carter, 191 N.J. 474, 482 (2007); McKnight v. Bd. of Rev., Dep't of Lab., 476

N.J. Super. 154, 162 (App. Div. 2023). We will sustain a board's decision

"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." McKnight, 476 N.J. Super. at 162

(quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). Under this standard, our

scope of review is guided by three major inquiries: (1) whether the agency's

decision conforms with relevant law; (2) whether the decision is supported by

substantial, credible evidence in the record; and (3) whether in applying the law

to the facts, the administrative agency "clearly erred in reaching" its conclusion.

Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018)

(quoting In re Stallworth, 208 N.J. 182, 194 (2011)).

We are not bound by an agency's statutory interpretation or other legal

determinations. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

27 (2011) (quoting Mayflower Secs. Co. v. Bureau of Secs. in the Div. of

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Consumer Affs., 64 N.J. 85, 93 (1973)). Nevertheless, we accord "substantial

deference to the interpretation given" by the agency to the statute it is charged

with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J.

16, 31 (1996) (citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). "Such

deference has been specifically extended to state agencies that administer

pension statutes" because "'a state agency brings experience and specialized

knowledge to its task of administering and regulating a legislative enactment

within its field of expertise.'" Piatt v. Police & Firemen's Ret. Sys., 443 N.J.

Super. 80, 99 (App. Div. 2015) (first citing Richardson v. Bd. of Trs., Police &

Firemen's Ret. Sys., 192 N.J. 189, 196 (2007); and then quoting In re Election

L. Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)).

A. The Board's Determination on Accidental Disability.

A member seeking accidental disability retirement benefits must prove

five factors:

1. that he [or she] 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

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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 [or her] usual or any

other duty.

[Richardson, 192 N.J. at 212-13.]

See also N.J.S.A. 43:15A-43.

A disability must be the "direct result" of a traumatic event, so that the

event constitutes "the essential significant or the substantial contributing cause

of the [applicant's] disability." Gerba v. Bd. of Trs. of the Pub. Emps.' Ret. Sys.,

83 N.J. 174, 185-86 (1980). The New Jersey Supreme Court has explained that

when there is an existing underlying condition that is aggravated by the

traumatic event, the resulting disability is not accidental and only gives rise to

"ordinary" pension benefits. Id. at 186. Consequently, pre-existing conditions

that cause, or combine to cause, a disability exclude applicants from eligibility

for accidental disability retirement benefits. Richardson, 192 N.J. at 211.

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The burden of proving the "direct result" by competent medical testimony

rests on the applicant. See Mount v. Bd. of Trs., Police & Firemen's Ret. Sys.,

233 N.J. 402, 428 (2018); Patterson v. Bd. of Trs., State Police Ret. Sys., 194

N.J. 29, 50-51 (2008). To qualify for accidental disability benefits, an applicant

must meet "an extraordinarily high threshold that culls out all minor injuries; all

major injuries that have fully resolved; all partial or temporary disabilities; and

all cases in which a member can continue to work in some other capacity."

Patterson, 194 N.J. at 43 (quoting Richardson, 192 N.J. at 195).

Initially, we note that Noriega is not challenging the Board's

determination that the 2012 motor vehicle accident was not the substantial

contributing cause of her disability. Indeed, Noriega has presented no

arguments challenging that determination. Moreover, the substantial, credible

evidence supports the ALJ's determination, which was then adopted by the

Board, that the 2012 motor vehicle accident was not the substantial contributing

cause of Noriega's disability.

B. Noriega's Challenge to the Denial of Her Request to Amend Her

Application.

Noriega contends that the Board erred in denying her request to amend

her application to add the 2004 incident as an additional traumatic event. She

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cites to N.J.A.C. 17:2-6.3(a) and argues that the Board's denial of her request to

amend violated that regulation. N.J.A.C. 17:2-6.3(a) states:

Except as provided by N.J.A.C. 17:2-6.1 and 6.7, a

member shall have the right to withdraw, cancel, or

change an application for retirement at any time before

the member's retirement allowance becomes due and

payable through [the Member Benefits Online System]

or by sending a written request signed by the member.

Thereafter, the retirement shall stand as approved by

the Board.

Subsection (b) of N.J.A.C. 17:2-6.3 makes it clear, however, that subsection (a)

is addressing a request to change a retirement date or an option on the type of

retirement benefits selected. N.J.A.C. 17:2-6.3(b).

Moreover, N.J.A.C. 17:2-6.7, which is an identified exception to N.J.A.C.

17:2-6.3(a), addresses applications for accidental disability retirement benefits.

N.J.A.C. 17:2-6.7 does not expressly address when an applicant can or cannot

amend an application for disability retirement. Subsection (b) of that regulation

provides:

Once the Board approves a member for a disability

retirement benefit, the member's retirement application

shall not be withdrawn or canceled, or amended to a

later retirement date than the date specified in the

approved retirement application.

Although that subsection does not directly apply to Noriega's request to amend

her application, it does clarify that N.J.A.C. 17:2-6.3(a) does not apply.

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The Board has not identified a regulation governing whether an

application for accidental retirement benefits can be amended and, if so, under

what conditions. Our review of the pension regulations has also not disclosed a

regulation governing whether and when an amendment can be requested.

Accordingly, the question presented to us is whether the Board acted arbitrarily,

capriciously, or unreasonably in denying Noriega's request to amend her

application.

In its February 28, 2019 letter, the Board set forth its reasons for denying

the request to amend the application already pending before the OAL. The

Board reasoned that Noriega's request to amend was inconsistent with the

position she had already taken because her original application identified only

the April 2012 motor vehicle accident as the traumatic event. The Board also

reasoned that the 2004 incident should not be considered an additional traumatic

event because Noriega had continued to work for over eight years after that

incident.

Although it would have been helpful if the Board had responded to

Noriega's April 5, 2019 letter, we cannot say that the Board's decision to deny

the request to amend was arbitrary, capricious, or unreasonable. The statute that

defines the requirements for accidental disability benefits mandates a member

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apply for retirement "within five years of the original traumatic event." N.J.S.A.

43:15A-43(a). The statute also allows the Board to consider an application filed

after the five-year period, but the wording of the statute establishes that the

determination is within the Board's discretion. Ibid.

Accordingly, we discern no abuse of discretion in the Board's

determination to not allow Noriega to amend her application to include the 2004

incident as a contributing traumatic event. Noriega made her application in

December 2015, and based that application on the 2012 automobile accident.

She first sought to amend and change her position in August 2018, after the

Board had already denied her application for accidental disability retirement

benefits but had granted her ordinary disability retirement. Moreover, the matter

had already been transferred to the OAL. Given all those circumstances, we see

nothing arbitrary, capricious, or unreasonable in the Board's decision.

Finally, we reject Noriega's argument concerning the Board's failure to

merge her appeals. That argument is merely another challenge to the Board's

decision to not allow Noriega to amend her application. In support of her

argument, Noriega references the entire controversy doctrine, but that doctrine

does not support the relief she is seeking. Noriega seems to suggest that had the

Board referred its denial of a request to amend her application, the ALJ could

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have considered the 2004 incident. The Board's denial of her request to amend

her application, however, did not involve disputed facts. Instead, it involved a

procedural issue regarding whether Noriega should be permitted to amend her

application at that point in the proceedings. Because Noriega has not identified

anything arbitrary, capricious, or unreasonable concerning the Board's denial of

her request to amend, we discern no reversible error in the Board's decision not

to "merge" and refer that issue to the OAL.

In summary, our review of this record establishes that the Board did not

act arbitrarily, capriciously, or unreasonably in denying Noriega's application

for accidental disability retirement benefits. The record also does not disclose

anything establishing that the Board acted arbitrarily, capriciously, or

unreasonably in denying Noriega's request to amend her application.

Affirmed.

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