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Bertha Bueno v. Board of Trustees

September 29, 2011

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



On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, Department of the Treasury, Agency 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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: March 14, 2011

Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.

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

Bertha Bueno appeals from final agency action of the Board of Trustees (the Board) of the Teachers' Pension and Annuity Fund, Division of Pensions and Benefits (the Division) denying her application for retroactive service retirement benefits as untimely because it was filed more than thirty days after the Board denied her application for ordinary disability retirement benefits. We now reverse.

The facts relevant to Bueno's application for ordinary disability retirement benefits and the issues surrounding the Board's denial of those benefits are described in our earlier decision respecting same. Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super. 119 (App. Div. 2008), certif. denied, 109 N.J. 540 (2009). We need not recount them here.

However, we add the following facts. In denying ordinary disability retirement benefits on November 2, 2006, the Board advised Bueno as follows:

However, with your age or years of service you do qualify for a [s]ervice retirement benefit . . . effective July 1, 2006, provided you file the enclosed application within 30 days from the date of this Board decision or effective date of retirement, whichever is later. The acceptance by you of a [s]ervice retirement will not prejudice an appeal of the Board's denial of [o]rdinary [d]isability retirement benefits.

After reviewing our decision but before the Supreme Court denied certification, Bueno applied on February 5, 2009, for service retirement benefits effective March 1, 2009. After the Supreme Court denied certification, Bueno wrote to the Board on June 17, 2009, requesting that her service retirement benefits be paid retroactive to the date of her application for ordinary disability retirement benefits, i.e., as of July 1, 2006. She advised the Board that she had been told her paperwork was in order in May 2006, that the only issue at that time was the amount of pension to be paid, and that her service retirement date would thus be July 1, 2006.

Shortly thereafter, Bueno's counsel wrote to the Division on June 22, 2009, advocating on her behalf and asserting that she had been distraught over the denial of ordinary disability retirement benefits and firmly convinced that she would prevail on appeal, leading to her failure to file within thirty days of the initial denial of benefits. He also pointed out that the language requiring such an application within thirty days was not "underlined, capitalized or in bold[,] which would in no uncertain terms have made clear her obligation to affirmatively file a service retirement application."

On July 10, 2009, the Division rejected Bueno's position relying on the Board's November 2006 letter requiring an application within thirty days. The Division noted that Bueno's application for service retirement benefits had not been filed until February 5, 2009. "In accordance with our rules and regulations, an application must be on file prior to the effective date of retirement. Therefore, the earliest possible retirement date available is March 1, 2009."

On July 17, 2009, Bueno appealed the Division's determination to the Board, asserting that the stress of leaving my job and the legal situation really left me quite shaken and unnerved and I neglected to handle this element. I always thought that my pension would be my pension and that my rights were reserved because I was contesting the denial of the disability claim. I was distraught and very overwhelmed by the ...


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