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Denise Brown v. Board of Trustees

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 7, 2011

DENISE BROWN, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.

On appeal from a Final Determination of the Board of Trustees, Public Employees' Retirement System.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2011

Before Judges Parrillo and Yannotti.

Denise Brown (Brown) appeals from a final determination of the Board of Trustees (Board), Public Employees' Retirement System (PERS), dated July 16, 2009, denying her application for ordinary disability retirement benefits under N.J.S.A. 43:15A-42. We affirm.

Brown was employed by the City of Paterson's Police Department as a parking enforcement officer. On January 3, 2003, Brown was involved in an auto accident, which was unrelated to her employment. In September 2003, September 2004 and Janaury 2006, Brown had surgery to repair the ligaments and/or cartilage in her left ankle. She stopped working in early 2006.

On April 27, 2006, Brown filed an application with the Board for ordinary disability retirement benefits. The Board denied the application on October 18, 2006, finding that Brown was not totally and permanently disabled. Brown filed an administrative appeal, which the Board referred to the Office of Administrative Law for a hearing before an administrative law judge (ALJ).

At the hearing, Brown presented testimony from Dr. Ralph C. Napoli (Dr. Napoli), a board-certified podiatric surgeon. Dr. Napoli testified that in January 2003, he diagnosed Brown as having a sprain of the left ankle. He performed an arthroscopic surgical repair of the ankle in September 2003, and thereafter found that she was developing "serious arthritis." Dr. Napoli said that he performed additional surgery on Brown's ankle in September 2004 and January 2006. After the last procedure, Brown's treatment regimen included physical therapy and use of a brace.

Dr. Napoli further testified that Brown experienced swelling in the ankle area, that would vary from "a lot" to "sometimes minimal." He stated that the range of motion of Brown's left ankle was good. Dr. Napoli's notes from late 2007 and early 2008 indicated that Brown's nerve entrapment was improving, as was her chronic lateral ankle instability. He conceded that the severity of her condition was gradually improving but nevertheless opined that Brown was totally and permanently disabled due to chronic pain, her inability to stand for long periods of time because of ankle swelling and the need to wear a brace.

The Board presented testimony from Dr. Jeffrey F. Lakin (Dr. Lakin), a board-certified physician with a specialty in orthopedic surgery. Dr. Lakin reviewed Brown's medical records and performed a physical examination. He found that Brown had good range of motion and no instability in her left ankle. Dr. Lakin testified that he observed "no problem as to [Brown's] ability to walk," although he noted "tenderness on the left ankle" during his exam. Dr. Lakin further testified that Brown had not reported any pain during the range-of-motion tests that he performed. Dr. Lakin opined that Browns' subjective complaints of pain were not consistent with the objective evidence and he concluded, within a reasonable degree of medical certainty, that she was not totally and permanently disabled from the performance of her job.

The ALJ issued an initial decision in which he concluded that Dr. Lakin's testimony was more persuasive than Dr. Napoli's testimony. The ALJ wrote:

Napoli treated Brown since 2003 and has witnessed and recorded Brown's improvement in the areas of nerve entrapment, ankle instability and severity of condition. His objective observations are inconsistent with Brown's subjective complaints of pain. Napoli's March 22, 2006, notes regarding Brown indicated "no instability" and no significant "clicking or crepitus" in her left ankle. He further recorded on January 16, 2008, Brown's improved ankle range of motion and "5/5" muscle strength. On February 27, 2008, Napoli reiterated his observation of Brown's improved ankle range of motion. Napoli's conclusions that Brown has good range of motion and stability in her left ankle are consistent with Lakin's findings in this regard.

The ALJ found that Brown failed to establish that she was totally and permanently disabled from the performance of her usual duties and therefore concluded that she was not entitled to ordinary disability retirement benefits pursuant to N.J.S.A. 43:15A-42.

Brown filed exceptions to the ALJ's initial decision. The Board considered the matter at its July 15, 2009, meeting and decided to deny Brown's application for ordinary disability benefits. In the letter of July 16, 2009, which memorialized its decision, the Board stated that it had adopted the ALJ's findings of fact and conclusions of law.

Brown appeals and argues that the Board erred in denying her application for ordinary disability retirement benefits because she established by a preponderance of the credible evidence that, because of the condition of her left ankle, she was not able to perform her usual duties as a parking enforcement officer. Brown contends that Dr. Napoli's testimony was more credible than Dr. Lakin's testimony because Dr. Napoli was her treating doctor and Dr. Lakin only saw her briefly for his examination.

The scope of our review in an appeal from a final decision of an administrative agency is strictly limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" Ibid.

When reviewing a final decision of an administrative agency, we consider whether there is sufficient credible evidence to support the agency's factual findings. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). In doing so, we give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility[.]'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must affirm the agency's factual findings if we are satisfied "that the evidence and the inferences to be drawn therefrom support" the agency's decision, even if we would have "reached a different result" if we were hearing the matter directly. Id. at 588.

In order to qualify for ordinary disability retirement benefits under N.J.S.A. 43:15A-42, a member of the PERS must establish by a preponderance of the credible evidence that he or she is physically or mentally incapacitated from the performance of his or her duties. The member must establish an incapacity to perform duties in the general area of his or her ordinary employment, rather than merely showing an inability to perform his or her specific job. Bueno v. Bd. of Trustees, Teachers' Pension & Annuity Fund, 404 N.J. Super. 119, 130-31 (App. Div. 2008), certif. denied, 199 N.J. 540 (2009).

We are satisfied that there is sufficient credible evidence to support the Board's determination that Brown failed to show that she qualifies for ordinary disability benefits pursuant to N.J.S.A. 43:15A-42. The Board adopted the ALJ's findings of fact, which were based on his assessment of the credibility of the expert testimony presented by Dr. Napoli and Dr. Lakin. We must give appropriate deference to the ALJ's and the Board's findings where, as here, those findings are based on sufficient credible evidence in the record. In re Taylor, 158 N.J. 644, 658-59 (1999).

Affirmed.

20110407

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