August 27, 2012
CHAIM FISHER, APPELLANT,
CATASTROPHIC ILLNESS IN CHILDREN RELIEF FUND COMMISSION, RESPONDENT.
On appeal from the Catastrophic Illness in Children Relief Fund Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012
Before Judges J. N. Harris and Fasciale.
Chaim Fisher appeals from the final decision of the Catastrophic Illness in Children Relief Fund Commission (the Commission), which denied him reimbursement for expenses related to his son's vision therapy. We affirm.
The Commission is statutorily tasked with administering the Catastrophic Illness in Children Relief Fund, N.J.S.A. 26:2-150, a nonlapsing, revolving fund earmarked "to provide assistance to children and their families whose medical expenses [related to a catastrophic illness] extend beyond the families' available resources." N.J.S.A. 26:2-148. Fisher submitted an application seeking reimbursement for medical bills incurred to treat his son's learning disabilities. The majority of the expenses were identified as for vision therapy.
On April 27, 2011, the Commission's Executive Director denied Fisher's application for reimbursement of the vision therapy expenses. It explained,
Based on recent scientific research from Pediatrics, the official Journal of the American Academy of Pediatrics, "Joint Technical Report Learning Disabilities, Dyslexia and Vision," the Commission is no longer considering vision therapy as an eligible expense. This study concluded[,] "[s]cientific evidence does not support the claims that visual training, muscle exercises, ocular pursuit-and-tracking exercises, behavioral/perceptual vision therapy, "training" glasses, prisms, and colored lenses and filters are effective direct or indirect treatments for learning disabilities.
Fisher appealed this initial decision to the Commission, arguing only that he had submitted a complete application for the vision therapy expenses prior to the Commission's determination that vision therapy was ineligible for reimbursement. He contended that it was unfair to bar his claim retroactively.
On June 29, 2011, the Commission rejected Fisher's timeliness argument, concluding that the initial decision "was based on the lack of scientific evidence based research to support the use of vision therapy as an efficacious practice." According to the final decision, "timing was not an issue." This appeal followed.
"In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." Seigel v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 613 (App. Div.), certif. denied, 193 N.J. 277 (2007). Our inquiry is restricted to (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (internal citations omitted).]
We do "not substitute [our] own [fact-finding] for that of the agency," because we "defer to the agency . . . if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). With these principles in mind, we discern no basis to disturb the Commission's final decision.
Fisher asserts, for the first time on appeal, that he mistakenly sought reimbursement for vision therapy, when in fact, his son received occupational therapy. The agency record belies this change in course and we find nothing to support Fisher's post hoc re-labeling. Moreover, because this issue was never presented to the Commission, it is therefore not reviewable on appeal. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
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