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Robin Bailey v. Police and Firemen's Retirement System

January 2, 2013

ROBIN BAILEY, PETITIONER-APPELLANT,
v.
POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Board of Trustees, Police and Firemen's Retirement System, Department of Treasury, PFRS#3-76561.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 6, 2012

Before Judges Ashrafi and Hayden.

Petitioner Robin Bailey appeals the February 15, 2011 final determination of the Board of Trustees, Police and Firemen's Retirement System (the Board) denying her application for ordinary disability benefits. The Board determined that Bailey did not establish that she was permanently unable to perform her job as a police officer. For the reasons that follow, we affirm.

I.

The record reflects that Bailey began working as a police officer with the Township of Voorhees in 1995 and soon became a member of the Police and Firemen's Retirement System. On December 29, 2005, Bailey applied for an accidental disability pension, claiming she was permanently disabled from performing the duties of a police officer. She further claimed that her disability arose from two work-related incidents. In the first incident, Bailey was on traffic duty in 1996 when she was hit in the head by the side mirror of a passing car. In the second incident in 2005, she fell out of her chair and hit her head on a metal cabinet. Finding that the 1996 incident was a traumatic event but the 2005 accident was not, the Board denied her application for accidental disability benefits. The Board also found, based on an independent medical evaluation by Dr. Alexander Zlatnik, a neurologist, that Bailey was not totally and permanently disabled.

Bailey filed an administrative appeal of the Board's denial and the matter was referred to the Office of Administrative Law (OAL). After the hearing commenced, the Board's medical witness, Dr. Zlatnik, became unavailable to testify, and in 2010 the Board sent Bailey for another independent medical evaluation with Dr. Arnold Witte, a Board-certified neurologist. Upon receiving Dr. Witte's report, the Board reconsidered its decision and reaffirmed its conclusion that Bailey was not permanently disabled.

At the OAL hearing Bailey presented three fact witnesses who testified that they had noticed a deterioration of Bailey's memory, cognitive ability and ability to focus over the course of the past ten years. One witness, Keith Hummel, the Voorhees Chief of Police, testified that he had appointed Bailey to the position of crime prevention officer in 2000 because she was highly organized and needed little supervision. In 2004, Hummel began to notice that Bailey had problems with her memory and he had to remind her of her ordinary duties. Bailey requested and received some time off from the job, but her difficulties got worse when she returned. In the Chief's opinion, due to her memory problems and inability to focus, Bailey was unable to perform the duties of a police officer. Bailey went on maternity leave in June 2005 until December 2005, when she applied for disability pension benefits with the Division of Pensions and Benefits, and never returned to work.

In addition, Bailey testified that she had significant memory problems that started around 2000 and progressed to where her mind went "blank" while she was giving presentations. She noticed a considerable short term memory problem where she could remember events that occurred two weeks ago but not two minutes ago. Bailey consulted a number of doctors, who were unable to give a definitive diagnosis. Additionally, Bailey reported feeling very stressed during this time because she was unable to function at the high level required to be a police officer.

In 2007 she was evaluated twice by Dr. Lewis A. Lazarus, a neuropsychologist, who had examined her in 2001 concerning a 1998 accident. In his 2007 report Dr. Lazarus noted a significant decline in overall memory functioning compared to 2001 and concluded that she had symptoms of "cognitive dysfunction". He further opined, "[g]iven that the course of recovery following a concussion and mild traumatic brain injury would be expected to be one of improvement, the noted decline in functioning is certainly uncharacteristic, unusual, and not considered, within a reasonable degree of neuropsychological certainty, to be related to either of the accidents in 1996 or 1998." He concluded that, at the present time, Bailey was not functioning at an acceptable level to handle the responsibilities of a police officer. Dr. Lazarus encouraged Bailey to pursue cognitive remediation to assist in "possibly improving her noted deficient memory processes." Both Dr. Abrams and Dr. Witte relied on Dr. Lazarus's evaluation in forming their opinions.

Bailey's expert, Dr. Abrams, testified that he first saw her in November 2006 for complaints of memory loss and foggy thinking. She reported a head injury in 1996 and in 2005. When he next saw her in 2007, she reported that her memory problems had gotten worse. Dr. Abrams reviewed neuropsychological testing by Dr. Lazarus in 2001, which concluded that she had a neurological deficit, and Dr. Lazarus's re-evaluation of Bailey in 2007. On July 19, 2007, Dr. Abrams performed an EEG, which was normal.

At first, Dr. Abrams concluded that causation of the cognitive impairment was too difficult to determine, then that Bailey's symptoms were caused by the 1996 accident, and finally that her symptoms were caused by the two work-related head injuries as well as the 1998 non-work-related accident. Dr. Abrams further concluded that Bailey had a head injury which resulted in post-concussion syndrome with mild cognitive impairment rendering her unable to function as a police officer, even with reasonable accommodation. Lastly, he concluded that Bailey's cognitive or neurological impairment was permanent.

The Board's medical witness, Dr. Witte, testified that he evaluated Bailey as an independent medical evaluator for the Division of Pensions and Benefits on February 2, 2010. He also reviewed the extensive medical records, which included several EEGs, one of which showed a slight abnormality. In addition, he reviewed Dr. Lazarus's reports, which noted a decline in Bailey's functioning since 2001, which was incongruous with a concussion or mild traumatic brain injury, which generally improves over time. Dr. Witte agreed, observing that Bailey's reported symptoms were not consistent with mild head injuries. Dr. ...


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