NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Board of Trustees, Public Employees' Retirement System.
Law Offices of Sklar Smith-Sklar, attorneys for appellant (Keith D. Sklar, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).
Before Judges Alvarez and Waugh.
Petitioner Sherry Rogers appeals the final administrative action of the Board of Trustees of the Public Employees' Retirement System (PERS), denying her application for a disability pension. We affirm.
We discern the following facts and procedural history from the record on appeal.
Rogers applied for disability retirement in August 2008, alleging that she was disabled from performing her usual duties because of the "[p]ainful effects of neuropathy in both legs and feet." The PERS Board of Trustees (Board) determined that she was not totally and permanently disabled and denied her application in November. Rogers appealed and the matter was sent to the Office of Administrative Law (OAL) for hearing by an administrative law judge (ALJ) as a contested case.
The OAL hearing was held in January 2011. The ALJ heard testimony from Rogers and the Board's medical expert, Arnold Witte, M.D. He also heard videotaped testimony from Rogers' medical expert, Aissa Alexeeva, M.D. The ALJ issued his initial decision on October 13, 2011. He found that Rogers had failed to prove that her disability was permanent, and consequently recommended that the Board's original decision be affirmed. Neither party filed exceptions to the ALJ's decision. The Board adopted his decision on November 9. This appeal followed.
On appeal, Rogers argues that the ALJ's initial decision, which was adopted by the Board as its final administrative agency decision, was not supported by the testimony of the expert witnesses. She also argues that her ...