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Bueno v. Board of Trustees

December 11, 2008

BERTHA BUENO, APPELLANT,
v.
BOARD OF TRUSTEES, TEACHERS' PENSION & ANNUITY FUND, DIVISION OF PENSIONS AND BENEFITS RESPONDENT.



On appeal from the Department of the Treasury, Division of Pensions and Benefits, Docket No. TPAF #505473.

The opinion of the court was delivered by: C.L. Miniman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: September 10, 2008

Before Judges Cuff, C.L. Miniman and Baxter.

Appellant Bertha Bueno (Bueno) appeals a final administrative decision by respondent Board of Trustees, Teachers' Pension and Annuity Fund, Division of Pensions and Benefits (the Board), denying her application for ordinary disability retirement benefits on the ground that she is not totally and permanently disabled from the performance of her regular and assigned duties as a teacher. We affirm.

Bueno applied for ordinary disability retirement benefits pursuant to N.J.S.A. 18A:66-39(b) on May 23, 2006. Her application was denied by the Board at its regular monthly meeting on November 2, 2006. Bueno appealed the Board's decision on November 20, 2006. At its January 4, 2007, meeting, the Board approved Bueno's request for a hearing and transferred the matter to the Office of Administrative Law as a contested case. A plenary hearing was conducted on April 23 and June 4, 2007, and the Administrative Law Judge (ALJ) issued a written opinion on July 26, 2007. At its September 6, 2007, meeting, the Board considered the ALJ's decision and the exhibits marked into evidence at the hearing and adopted the ALJ's decision. This appeal followed.

Bueno was born on January 1, 1943, and obtained a degree in education. She taught for five years before having a family and then returned to teach in East Brunswick in the early 1980s. She then became employed by the New Brunswick Board of Education on July 23, 2001, at the Woodrow Wilson School. She assisted with prekindergarten the first year and then taught that grade for the second year. Thereafter, she was a "floater," teaching reading and mathematics. She became tenured after three years. For the 2005-06 school year, she was assigned to teach second grade. She resigned from teaching at the end of that school year.

During her last year teaching, Bueno experienced problems interacting with her principal and the administration. She testified that the principal angrily criticized her in front of the children for not using the proper curriculum. She was also told by the principal and vice principal that she was not doing a good job. She was given a sixty-day notice to improve in the fall, a second sixty-day notice in the winter, and a thirty-day notice in the spring. Bueno also testified that she felt threatened and began to cry at a meeting with them. She felt that her age of sixty-three and her salary of $72,500 were the motivating factors for the perceived unjust criticism.

Throughout the year, the principal and vice principal would observe in her classroom three or four times a week, whereas tenured teachers generally were only observed once or twice a year. These observations led to almost twenty write-ups. Bueno complained to her union representative before the end of 2005 that she was being harassed and could not perform her teaching duties, but the union's meeting with the principal did not resolve the situation.

Bueno then resumed weekly treatment with her psychologist, Carol Turner, Ed.D. Eventually, Dr. Turner recommended that Bueno take medication but she refused to consider it. Rather, she took holistic medicines provided by Marc Condren, M.D. She took a week off in March 2006 to relax but, when she returned to school, the alleged harassment became worse. Bueno saw a cardiologist in the spring because she experienced chest pains and heart palpitations during most of the work day that spring. When Bueno realized that she could no longer teach under these circumstances, she submitted her application for ordinary disability retirement benefits on May 23, 2006. The following month, Bueno then sought a transfer to another school in New Brunswick. When that request was denied, she resigned effective the end of the school year, although she would not have done so had she been transferred to another school.

The sole issue before the Board was whether Bueno was totally and permanently incapacitated from the performance of her regular and assigned duties as a teacher. Bueno's application was supported by Drs. Turner and Condren. The Board asked Bueno to submit to an evaluation by Martin Mayer, M.D., a psychiatrist. All three experts testified at the hearing before the ALJ, who concluded that the testimony and opinions of Dr. Mayer were credible, whereas the testimony and opinions of Drs. Turner and Condren were not credible. Thus, the ALJ relied exclusively on the testimony of Dr. Mayer in concluding that Bueno was not "mentally incapacitated for or permanently disabled from the performance of her duties."

Dr. Mayer's testimony supports the ALJ's conclusion. Dr. Mayer opined that Bueno had an adjustment disorder, which is reactive to stress and merely transient, disappearing as the stress is relieved. He further opined that Bueno had an anxiety disorder, which was entirely treatable with proper medication. He concluded that Bueno was not totally and permanently disabled from teaching and, in a more appropriate setting for her skills and personality, could function as a teacher.

Bueno argues before us that the Board's final administrative decision denying her an ordinary disability retirement pension "was unreasonable and lacked fair support in the record." Specifically, she contends that Dr. Mayer acknowledged that she could not function as a second-grade teacher at the Woodrow Wilson School even with medication. Although Dr. Mayer maintained that Bueno could work in a more supportive environment, Bueno points out that the New Brunswick Board of Education refused her request for a transfer. She argues that the case law on which the Board relied does not ...


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