On appeal from the Board of Trustees of the Public Employees' Retirement System.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2012
Before Judges Espinosa and Guadagno.
Slavica Bosnjakovic appeals from a final agency determination of the Board of Trustees of the Public Employees' Retirement System (the Board) that she did not qualify for an ordinary disability pension. We affirm.
Appellant filed an application for ordinary disability retirement in October 2007. Appellant met the age requirement (under sixty years old) and the service requirement (ten or more years of service) for an ordinary disability retirement. To qualify, she had to satisfy the standard for disability articulated in N.J.S.A. 43:15A-42, that she was "physically or mentally incapacitated for the performance of duty and should be retired."
The Board denied appellant's application in June 2008. Bosnjakovic appealed and the matter was transmitted to the Office of Administrative Law as a contested case. A two-day hearing was conducted by an Administrative Law Judge (ALJ) in March and October 2009. The ALJ issued an initial decision, denying the application, in July 2010. Appellant filed exceptions and the Board replied in August 2010. The Board issued its final administrative determination in August 2010, adopting the recommendation of the ALJ.
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). An appellate court may not substitute its judgment for the fact- finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Ibid. (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). This court may "not reverse an agency's decision unless: (1) it [is] arbitrary, capricious, or unreasonable; (2) it violate[s] express or implied legislative policies; (3) it offend[s] the State or Federal Constitution; or (4) the findings on which it [is] based [are] not supported by substantial, credible evidence in the record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48, (2007).
In this case, appellant argues that the Board's final administrative determination was arbitrary, capricious, and unreasonable, and not based on substantial credible evidence because it failed to apply the "treating physician" rule.
We are therefore governed by the principle that, in the absence of a "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are also bound to defer to the Board's findings of fact "when they could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility." Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 313 (App. Div. 2006), certif. denied, In re Klusaritz, 191 N.J. 318 (2007).
We therefore review the factual findings of the ALJ to determine whether they provide adequate support for the Board's decision.
Appellant was employed as a management assistant by the University of Medicine and Dentistry of New Jersey (UMDNJ) in 1985. In 1992, she became the Administrative Director of Graduate Medical Education at UMDNJ. In October 2006, she developed back pain and consulted her personal physician.
During the period from October 2006 through February 2007, appellant sought medical treatment and underwent three MRIs. The MRI conducted in November 2006 revealed disc desiccation at L4-5 and L5-S1; asymmetrical bulging and no evidence of disc herniation or canal stenosis. A neurological examination in December 2006, showed "symptoms of right-sided lumbosacral radiculopathy." Subsequent MRIs on January 6 and 23, 2007 revealed no evidence of disc herniation or cervical spinal cord compression and no change when compared to the November 2006 MRI study. Appellant received a lumbar epidural steroid injection for severe pain in January 2007.
In February 2007, appellant consulted with University Rehabilitation Associates at UMDNJ regarding her pain. The consultation confirmed low back and right leg pain due to right L4/L5 radiculopathy. Appellant's workstation was evaluated by the Department of Environmental and Occupational Health and Safety Services and, as a result, it was ...