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Slavica Bosnjakovic v. Board of Trustees of the Public Employees' Retirement System

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 24, 2012

SLAVICA BOSNJAKOVIC, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.

On appeal from the Board of Trustees of the Public Employees' Retirement System.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 recommended that she be provided with an ergonomic chair, a new keyboard tray and a document holder.

Appellant's treatment and surgery in the following months included the following: cortisone injections, prescriptions for Neurontin, Oxycontin and Percocet, physical therapy, discography and diskogram at L3-L4, L4-L5 and L5-S1 levels, a pecutaneous lumbar laminectomy, acupuncture and surgery, consisting of bilateral laminectomy and foraminotomies at L4 and L5.

In support of her application for ordinary disability retirement, Mitchell F. Reiter, M.D., performed a medical examination. He stated that appellant was "totally and permanently disabled and no longer able to perform . . . her job duties."*fn1 He also stated that her disability was "stable." However, in response to the question whether there was a possibility that appellant might improve to a degree that would allow her to perform her duties, Dr. Reiter responded, "Yes" and added, "but unlikely."

In February 2008, Dr. Reiter performed an anterior lumbar fusion to relieve appellant's back pain. In the post-operative examination in March 2008, appellant reported that she was "feeling better" and had "significant improvement in her pain in [her] lower back as well as in her left posterior thigh and calf." A neurological examination showed 5/5 motor strength in the lumbar region, negative bilateral straight leg raises and negative gait and that her fusion construct was in "excellent position." Dr. Reiter reduced appellant's pain medication and proposed a gradual increase in activities and a continued reduction of pain medication. Dr. Reiter referred appellant for an x-ray of the lumbar spine in May 2008. The x-rays revealed no evidence of subluxation.

The evidence therefore shows that, some months after she applied for ordinary disability retirement, appellant underwent surgery and her condition improved from her status at the time she submitted her application and Dr. Reiter stated she was totally and permanently disabled. Further, the improvement was consistent with Dr. Reiter's assessment at the time that it was possible, though unlikely, that appellant's condition might improve. Indeed, appellant acknowledged that her quality of life improved following surgery. At some point following the surgery, she ceased formal medical treatment.

In June 2008, the Board determined that appellant was not totally and permanently disabled for the performance of her regular and assigned duties and denied her application.

In October 2009, Andrew B. Weiss, M.D., examined appellant and reviewed her medical records on behalf of the Board. He found no positive objective findings to substantiate appellant's subjective complaints and stated her prognosis was good. He concluded that appellant was "not totally and permanently disabled from working as a clerical type worker."

Appellant argues that the Board should have given greater weight to Dr. Reiter's evaluation than that of Dr. Weiss because he was her treating physician and performed two surgical procedures to relieve her back pain. When medical opinions differ, "[t]heir probative force must be evaluated by a number of factors." Bober v. Indep. Plating Corp., 28 N.J. 160, 167 (1958). "[A] criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand and decide upon the producing cause of the patient's condition." Ibid. However, that factor is not dispositive.

The ALJ found both doctors had impressive credentials. She noted that Dr. Weiss's testimony "was credible and showed a clear understanding of petitioner's medical history, her job duties and her medical condition from which he rendered a medical opinion with reasonable certainty." Dr. Weiss's conclusion that appellant was not disabled from working in her job was supported by a finding that there was no objective evidence to substantiate her subjective complaints. Appellant has identified no objective evidence following her last surgery that refutes this finding. Moreover, Dr. Reiter's conclusion that appellant was totally disabled in September 2007 left open the possibility that her condition could improve to the point where she would not be disabled. The reduction in pain medication, objective tests, and appellant's own statements regarding improvement following surgery all support rather than rebut Dr. Weiss's conclusions.

We are therefore satisfied that it was not arbitrary, capricious, and unreasonable for the Board to decline to rely upon Dr. Reiter's opinion and that the Board's decision to adopt the recommendations of the ALJ was adequately supported by credible evidence in the record.

Affirmed.


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