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Bernstein v. Board of Trustees of Teachers'' Pension and Annuity Fund

Decided: June 27, 1977.

JUDITH C. BERNSTEIN, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE TEACHERS' PENSION AND ANNUITY FUND, RESPONDENT-RESPONDENT



Fritz, Ard and Pressler. The opinion of the court was delivered by Ard, J.A.D.

Ard

This is an appeal from a final decision of the Board of Trustees of the Teachers' Pension and Annuity Fund (Board) holding petitioner ineligible to file for ordinary disability retirement. The Board adopted the findings of fact and conclusions of law of the hearing officer's report as well as the recommendations contained therein.

The sole question involved in this appeal is whether petitioner, a former teacher, is to be denied the right to apply for ordinary disability retirement benefits pursuant to N.J.S.A. 18A:66-39(b) because she filed her application 26 days late.

Although substantial evidence was presented to the hearing officer with respect to petitioner's alleged impaired mental capacity to exercise judgment and volition, we need not and do not decide the matter on the basis of mental competency of petitioner to file an application -- an issue decided below adversely to petitioner and argued by her here. We view as dispositive the issue of whether there was sufficiently substantial compliance with the statute to require the Board to accept petitioner's application. We are satisfied that there was substantial compliance which requires reversal of the Board's determination.

Petitioner was employed as a teacher and enrolled as a member of the Teachers' Pension and Annuity Fund (Fund) on March 1, 1962. She continued such employment until June 30, 1972, when she resigned because of illness. During that period she maintained her active membership in the Fund. Her last contribution to the Fund was just prior to her resignation in June 1972. In April 1974 she received a "member's expiration notice" from the Fund, advising her that on September 1, 1974*fn1 all her membership rights, benefits and privileges in the Retirement System would terminate. Thereafter, on August 18, 1974, her mother visited the office of the Fund, advising the interviewing counselor of her daughter's condition and that she was physically unable to obtain the necessary application papers for ordinary disability retirement. The mother was not advised that N.J.S.A. 18A:66-39(b) permits applications to be filed by one acting in behalf of the member. A record of this interview was made by the Fund's counselor, Coughlin, and admitted in evidence during the hearing below. Mr. Coughlin was not called as a witness to

rebut the assertion that the mother was not advised of the aforementioned statute. The record simply indicates that after describing her daughter's condition she was given the application forms, which she turned over to her daughter. Petitioner then wrote to the Fund on August 28, 1974 requesting immediate information as to whether recent federal legislation affected her pension rights. On September 11, 1974 the Fund advised that the federal legislation did not affect petitioner's pension rights. Notwithstanding the urgency, no special pains were taken by the Fund to advise petitioner prior to the so-called deadline. Upon receiving the Fund's reply, petitioner, on September 26, filed her application for disability retirement, which was denied because her account expired on September 1, 1974. This appeal followed.

It is beyond dispute that petitioner suffers from a disease known as systemic lupus erythematosus. She contracted this disease while employed as a teacher and a member of the Fund. The uncontradicted medical testimony indicates that the disease may affect any organ in the body, and in petitioner's case has reached her brain, kidneys, vascular system and skin. The prognosis is grave, and her life expectancy has been shortened. She also suffers from hypothyroidism and anxiety with depressive reaction. In the course of her employment she suffered recurrent episodes involving a loss of consciousness, an unawareness of her surroundings, a frothing at the mouth and, at least on one occasion, a loss of bladder control. In 1971 she was hospitalized as a result of this illness, and it was the manifestations of this illness which caused problems for her employer and which ultimately resulted in her resignation. Dr. Ehrenworth, her treating physician, described systemic lupus erythematosus as an allergic response to one's own body, resulting in an inflammatory reaction of connective tissue that may affect any organ in the body. Its most dreaded complication is the involvement of the kidney, which, if progressive, results inevitably in death. Significantly, Dr.

Ehrenworth also indicated that where the brain is affected by lupus there is an effect on consciousness, memory and judgment. Bizarre behavior, loss of memory and of consciousness are all manifestations of the disease.

Petitioner's resignation was motivated by a desire to find work which would be more compatible with her illness and less likely to exacerbate it. Her long range hope was to return to her teaching career, and she delayed making application for disability retirement because she feared such an application would be viewed unfavorably by a future school employer. The record clearly supports her physical eligibility as indicated by the hearing officer's determination: "There is little doubt in the hearing officer's mind that petitioner would be entitled to an ordinary disability retirement." Unquestionably, her illness affected her judgment in objectively evaluating her ability to resume teaching, as well as contributing to her failure to recognize that time was of the essence when filing her application at the eleventh hour.

In affirming the hearing officer, the Board contends petitioner was not a member of the Fund on September 26, 1974 when her application was filed. It is the Board's position that, in addition to the other statutory qualifications for ordinary disability retirement, one must be a member at the time the application is submitted. ...


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