On appeal from a Final Administrative Determination of the Board of Trustees, Police and Firemen's Retirement System.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Lihotz.
Elizabeth Bishop, a former Paterson police officer, appeals from a final determination of the Board of Trustees, Police and Firemen's Retirement System (PFRS or Board) denying, as untimely, her request for a hearing in the Office of Administrative Law to appeal the Board's denial of her application for accidental disability retirement benefits.
Bishop claims that she had been subjected to the sexual harassment of a police sergeant in 1993 and 1994, for which he was disciplined, and commencing again in 1998, resulting in disabling post-traumatic stress disorder. She made application for ordinary disability retirement benefits on November 16, 2000, and for accidental disability retirement benefits on November 29, 2000.
In a letter addressed to Bishop and dated, September 25, 2001, PFRS reported the Board's denial, on the preceding day, of Bishop's application for accidental disability retirement benefits, finding that the incidents, commencing in August 1998, and allegedly causing Bishop's disability "were not 'traumatic events' as detailed by statute and court decisions and that [her] disability was not the direct result of the incidents described."*fn1 However, the Board granted Bishop ordinary total disability retirement benefits, effective January 1, 2001, and stated: "The acceptance by you of ordinary disability effective January 1, 2001 will not prejudice an appeal of the Board's denial of accidental disability retirement." The letter additionally provided:
If you disagree with this determination of the Board of Trustees, you may request a formal hearing before an Administrative Law Judge within the Office of Administrative Law, by sending a written statement to the Board of Trustees within 45 days from the date of this letter. Please state the reason of your disagreement of the Board's determination and any supporting documentation if you have not already done so. If no written statement is received within the 45-day period, this determination shall be considered final.
In a letter to the Board, dated September 26, 2001, and likely written before receipt of the Board's decision, the firm of Nuzzi, Mason & Cabana noted that it represented Bishop and set forth its understanding that Bishop had been approved for an ordinary disability pension on September 24, 2001. The letter continued:
It is Ms. Bishop's position that her disability is a direct result of an incident that occurred in August 1998 resulting in accidental disability. She is aware of her right to appeal the decision and we are awaiting formal notice of the Board's determination prior to commencing the appeal.
A complete copy of Bishop's file was requested.
According to PFRS, on October 24, 2001, the Division of Pension and Benefits mailed a final letter to Bishop indicating the benefits payable under its ordinary disability retirement plan. Bishop has continued to collect such benefits since her retirement on December 31, 2000.
Four years later, Bishop's counsel followed up in the matter, sending a letter to PFRS, dated October 26, 2005, in which counsel stated that Bishop wished to appeal and took the position that the firm's September 26, 2001 letter constituted notice of appeal. Counsel explained the firm's delay in prosecuting Bishop's appeal by stating that the attorney who had authored the initial correspondence had left the firm to join the Morris County Prosecutor's Office, that an additional attorney working on the matter had quit without notice, and that the firm had "packed up all of its files and moved its location from Boonton to Dover." A hearing was requested.
The request was denied by PFRS on November 14, 2005, and Bishop's counsel was informed of that fact by letter dated November 15, 2005. In a final administrative determination, dated December 13, 2005, the Board set forth the factual and procedural history that we have detailed, and it reiterated its conclusion that Bishop's disability "was not a direct result of a traumatic event occurring during and as a result of the performance of her regular and assigned duties," as statutorily required. It then set forth the requirement of N.J.S.A. 52:14B-9 that Bishop request a hearing, having been notified of her right to appeal from the Board's decision to deny her an accidental disability pension, and the forty-five-day time limitation for the exercise of that right set forth in N.J.A.C. 17:4-1.7(a), including the cautionary statement that if a written statement providing the ...