                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4967-17T4

JAMIELYN ROSSBACH,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,

     Respondent-Respondent.
_____________________________

                   Argued November 12, 2019 – Decided December 9, 2019

                   Before Judges Sumners and Geiger.

                   On appeal from the Board of Trustees of the Police and
                   Firemen's Retirement System, Department of the
                   Treasury, PFRS No. 3-87227.

                   M. Scott Tashjy argued the cause for appellant (The
                   Tashjy Law Firm, LLC, attorneys; M. Scott Tashjy, of
                   counsel and on the briefs).

                   Christopher Robert Meyer, Deputy Attorney General,
                   argued the cause for respondent (Gurbir S. Grewal,
                   Attorney General, attorney; Melissa H. Raksa,
            Assistant Attorney General, of counsel; Christopher
            Robert Meyer, on the brief).

PER CURIAM

      Petitioner Jamielyn Rossbach appeals from the final agency decision of

the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS),

denying her application for ordinary disability retirement benefits. The Board

adopted the initial decision of the Administrative Law Judge (ALJ) affirming

the denial of Rossbach's application for ordinary disability retirement benefits.

      Rossbach argues for the first time on appeal that, despite being aware she

may suffer from a mental disorder, the Board failed to cancel her original

application and evaluate her for a "psychological/psychiatric" disability. For

the following reasons we affirm.

                                        I.

      Rossbach was employed by Monmouth County as a corrections officer

from March 1999 to September 30, 2012.           In June 2011, Rossbach was

hospitalized for what she understood to be viral meningitis and acute

disseminated encephalomyelitis (ADEM). Thereafter, Rossbach began seeing

multiple physicians for her symptoms—including dizziness, vision impairment,

stiff neck, and headaches—but none offered an "opinion as to the cause of all

her conditions."

                                                                          A-4967-17T4
                                        2
        In May 2012, Rossbach submitted a pro se application for ordinary

disability retirement benefits pursuant to N.J.S.A. 43:16A-6.            Rossbach

described      her   disability   as,   "acute   disseminated   encephalomyelitis,

disorientation in crowds, trouble following conversations with more than one

person, balance and muscle coordination, dizziness, headaches, neck pain."

        Rossbach submitted two conflicting medical reports in support of her

application:    (1) an August 2012 medical examination form completed by

Norman P. Einhorn, O.D., M.S., a neuro-optometrist, indicating Rossbach is not

totally and permanently disabled or unable to perform her job duties or any other

job; and (2) a September 2012 medical examination form completed by David

J. Frank, M.D., a neurologist, indicating that Rossbach is totally and

permanently disabled and no longer able to perform her job duties or any other

job.1

        The Board's medical expert, Steven Lomazow, M.D., a neurologist,

evaluated Rossbach "for any possible neurological causes of disability in

conjunction with her application for ordinary disability as a corrections officer."




1
  In a earlier June 2012 report, Dr. Frank stated: Rossbach "does not appear to
be able to return to her previous occupation as a corrections officer." She was
"maintained on out-of-work status" by Dr. Frank.
                                                                           A-4967-17T4
                                           3
After reviewing Rossbach's application and medical records, Dr. Lomazow

issued an October 22, 2012 report in which he concluded:

                   I am not presented with any objective evidence
            whatsoever that Ms. Rossbach has a neurological
            disease. The logical conclusion why seven neurologists
            could not find anything wrong with her is because there
            is not anything neurologically wrong with her. She
            appears to have an ongoing problem with a conversion
            reaction. While there may be other reasons why Ms.
            Rossbach cannot perform her job as a County
            Correction Officer, it is not neurological in nature so,
            therefore, there is no objective basis on my examination
            or quite frankly that of any other practitioner with
            respect to any neurologic disability whatsoever
            including any that might inhibit her from performing
            her job as a County Correction Officer. As noted
            above, it is conceivable that her disability might lie in
            a different sphere, i.e., psychiatric but this is not the
            point of my examination.           Once again, from a
            neurologic standpoint there is no disability to qualify
            her for an ordinary disability with respect with her
            ability to perform her job as a County Correction
            Officer.

      On December 10, 2012, the Board denied Rossbach's application,

determining she was "not totally and permanently disabled from the

performance of [her] regular and assigned duties."      The    Board    informed

Rossbach she qualified for deferred retirement. Rossbach appealed.

      The Board transferred the matter to the Office of Administrative Law. An

ALJ conducted a hearing in August 2016, where Rossbach and Steven Greco,


                                                                         A-4967-17T4
                                       4
Ph.D., a neuropsychologist, testified. Dr. Lomazow did not testify at the hearing

because he had evaluated Rossbach for a neurological disability; Dr. Greco

explained Rossbach's disability was neuropsychological.

      Rossbach recounted her 2011 hospitalization, symptoms, and visits to

multiple physicians, including Dr. Greco who testified he has treated Rossbach

for over four years (over eighty visits). Dr. Greco opined Rossbach suffers from

conversion disorder. He explained:

            [C]onversion disorder is when a patient presents as
            though they have neurological symptoms. It could
            either be motor [or sensory symptoms]. So naturally
            with those symptoms you're going to go to a physician
            to make sure you're okay. But then as you keep going
            and keep getting all diagnostic tests and they come back
            normal . . . they start saying [there] is a psychological
            reason to why they're having these physical symptoms.
            Now, the reason patients end up with a conversion
            disorder, it's not a one to one correlation, but there's
            usually a lot of trauma in the background with the
            patient. They've usually been exposed to something
            that they have not been able to handle.             And
            psychologically these emotions manifest physically.
            Hence, then once it's ruled out that it's not a medical
            neuropsychological disorder so you have to have an
            incompatibility between medical findings and the
            patient's symptoms. Once that's established and you
            have those motor sensory symptoms you can meet
            criteria for conversion disorder.

      According to Dr. Greco, Rossbach's 2011 medical crisis "set into motion"

her physical symptoms and resulting conversion disorder. He noted conversion

                                                                         A-4967-17T4
                                       5
disorder is a "complex psychological disorder" and "statistically there's no

cure."     Dr. Greco stated Rossbach "will not be able to handle gainful

employment given the intensity, frequency and type of psychological disorders"

she suffers from, and "should not work as a correction officer."

         Because Dr. Lomazow did not testify, the parties agreed to the following

stipulations regarding his qualifications and the evaluation he was requested to

perform:

               1. Dr. Lomazow was requested to evaluate Ms.
               Rossbach to determine neurologic causes of disability
               only, in conjunction with her application for ordinary
               disability.

               2. As part of his medical education, Dr. Lomazow did
               not participate in or complete a residency in psychiatry
               or psychology.

               3. Dr. Lomazow is not professionally qualified to
               practice psychiatric medicine and is not a psychiatrist.

               4. Dr. Lomazow is not professionally qualified to
               practice in the field of psychology or neuro-psychology
               and is not a psychologist or neuro-psychologist.

               5. Dr. Lomazow is not qualified to perform and
               interpret a Neuropsychological Examination as was
               performed by Dr. Greco on [June 12, 2012].

         In his March 29, 2017 initial decision, the ALJ made the following

findings of fact:


                                                                          A-4967-17T4
                                          6
1. On December [10], 2012, the Board denied
Rossbach's application for ordinary disability
retirement benefits.

2. On December 11, 2012, the Board determined that
Rossbach, with her years of service, qualified for a
deferred retirement.

3. Rossbach enrolled in the PFRS on March 1, 1999, as
a correction officer employee of Monmouth County.

4. The Board reflected Rossbach's resignation and
termination date as September 30, 2012.

      ....

6. Rossbach at the time of the application for ordinary
disability retirement was age thirty-two.

7. No medical evidence presented within six-months of
the May 24, 2012, application for ordinary disability
retirement objectively found petitioner disabled.

8. Petitioner did submit a June 2013, report by Dr.
Greco, more than six months after the denial of ordinary
disability benefits. This report did not set forth a
permanent disability, just that petitioner could not
perform her duties.

9. Dr. Greco's . . . cognitive evaluation reflected
petitioner as normal.

10. Dr. Greco's June 2013, report reflected no objective
neurological medical reason for petitioner's condition.

11. Petitioner did submit an April 2016 report by Dr.
Greco. This report did psychologically opine that
petitioner suffered from PTSD and conversion disorder,

                                                           A-4967-17T4
                           7
            but again did not set forth a permanent disability, rather
            a disability with a poor diagnosis.


      Due to the "existence of the conflicting medical reports of the two treating

doctors as to totality and permanency," the ALJ concluded he "need not consider

the report of the Board's expert," and would "not attribute a negative inference

from[] his failure to testify." The ALJ noted Dr. Lomazow's "expertise and

examination" of Rossbach related to her alleged diagnosis for neurological

conditions. Therefore, the value of his testimony was questionable.

      The ALJ concluded "that as of the date of the denial by the Board, the

petitioner had not met her burden of proof that she was totally or permanently

disabled as a result of a physical medical condition."           In reaching that

conclusion, the ALJ engaged in the following analysis of the evidence, or lack

thereof:

            There are concerns regarding the mental health aspects
            of petitioner's claim. The original application for
            disability occurred on May 24, 2012, three requests
            were made for medical documentation. None of the
            medical documentation supported an objective medical
            illness . . . . The report of Dr. Greco did not issue until
            more than six months later [on] June 30, 2013, though
            there was reference in Dr. Frank's report in July 2012.
            Dr. Greco's report issued well after six months from the
            time of the original disability filing. That report was
            insufficient on its face to support a psychological
            permanency. During that time petitioner[] did not seek

                                                                          A-4967-17T4
                                        8
            to amend the pension application or submit a new
            pension application based upon the mental health
            disability. Accordingly, the Board did not have the
            petitioner examined for a mental health disability. The
            parties did not address issues of notice or reliance. This
            tribunal is unable to determine whether any
            accommodation should be made to petitioner to allow
            an amendment to the retirement application at this time,
            and to allow the petitioner be reexamined by a
            psychologist or psychiatrist. The 2016[] report of Dr.
            Greco again fails to confirm permanency of the
            disability.

            I CONCLUDE the December [10], 2012, denial of the
            physical disability pension, and the December 28, 2012
            appeal, limited the jurisdiction of this tribunal to a
            consideration of the denial of the physical disability
            pension. Rossbach has not shown she was totally and
            permanently disabled, from a physical disability at the
            time of the application.

      The ALJ recommended denial of petitioner's application for ordinary

disability benefits. Rossbach filed exceptions to the initial decision. On May

8, 2017, the Board adopted the ALJ's initial decision affirming the Board's denial

of Rossbach's application for ordinary disability retirement benefits.       This

appeal followed.

      On appeal, Rossbach raises the following points:

            POINT I

            THE BOARD FAILED TO EVALUATE OFFICER
            ROSSBACH FOR PSYC[H]OLOGICAL [OR]
            PSYCHIATRIC DISABILITY EVEN [THOUGH] IT

                                                                          A-4967-17T4
                                        9
            WAS ADVISED, BY [ITS] MEDICAL EXPERT,
            THAT THE DISABILITY SHE SUFFERED WAS
            LIKELY CAUSED BY A PSYCHOLOGICAL [OR]
            PSYCHIATRIC DISEASE. (Not Raised Below).

            POINT II

            THE BOARD FAILED TO CANCEL OFFICER
            ROSSBACH'S APPLICATION FOR DISABILITY
            BENEFITS AND OFFICER ROSSACH SHOULD
            HAVE       BEEN         EVALUATED       FOR
            PSYCHOLOGICAL          [OR]     PSYCHIATRIC
            DISABILITY. (Not Raised Below).

                                        II.

      "Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re

Herrmann, 192 N.J. 19, 27 (2007)).          "Judicial review of an agency's final

decision is generally limited to a determination of whether the decision is

arbitrary, capricious, or unreasonable or lacks fair support in the record." Mattia

v. Bd. of Trs., Police & Firemen's Ret. Sys., 455 N.J. Super. 217, 221 (App. Div.

2018) (quoting Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J.

Super. 1, 14 (App. Div. 2013)). "A reviewing court 'may not substitute its own

judgment for the agency's, even though the court might have reached a different

result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191

N.J. 474, 483 (2007)). "The burden of demonstrating that the agency's action


                                                                           A-4967-17T4
                                       10
was arbitrary, capricious or unreasonable rests upon the person challenging the

administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.

2006) (citations omitted).

      "Generally,   courts   afford   substantial   deference to     an   agency's

interpretation of a statute that the agency is charged with enforcing."

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196

(2007) (citation omitted). "Such deference has been specifically extended to

state agencies that administer pension statutes," because "a state agency brings

experience and specialized knowledge to its task of administering and regulating

a legislative enactment within its field of expertise." Piatt v. Police & Firemen's

Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015) (quoting In re Election Law

Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). We are

not bound, however, "by the agency's interpretation of a statute or its

determination of a strictly legal issue." Richardson, 192 N.J. at 196 (quoting In

re Taylor, 158 N.J. 644, 658 (1999)).

                                        III.

      A PFRS "member can qualify for ordinary disability benefits if [she] is
disabled for any reason; the disability need not have a work connection." Russo,
206 N.J. at 28 (citing Richardson, 192 N.J. at 195). A PFRS member who meets
age and service criteria may be retired on an ordinary allowance:


                                                                           A-4967-17T4
                                        11
            provided, that the medical board, after a medical
            examination of such member, shall certify that such
            member is mentally or physically incapacitated for the
            performance of his usual duty and of any other
            available duty in the department which his employer is
            willing to assign to him and that such incapacity is
            likely to be permanent and to such an extent that he
            should be retired.

            [N.J.S.A. 43:16A-6(1).]

      An application for physical or mental health medical disability retirement

must "be supported by at least two medical reports" and such "documentation

must be received within six months" of the application's filing date, otherwise

"the retirement will be cancelled and the member must complete a new disability

application for a future retirement date." N.J.A.C. 17:4-6.1(d)(1)-(2). The

petitioner bears the burden of proving she is entitled to ordinary disability

benefits. See Patterson v. Bd. of Trs., Police & Firemen's Ret. Sys., 194 N.J.

29, 50-51 (2008) (stating that a PFRS "member who seeks accidental disability

benefits must prove a disabling permanent mental injury and, in so doing, must

produce such expert evidence as is required to sustain that burden").

      Rossbach     contends     the    Board    had     knowledge       of    her

psychological/psychiatric disability as early as October 2012 when Dr.

Lomazow issued his report.       She argues "the Board had the affirmative

obligation to schedule an independent psychiatric examination to appropriately

                                                                         A-4967-17T4
                                      12
evaluate [her] for her alleged disabling condition," citing N.J.A.C. 17:2-6.26.

Rossbach further contends the Board "should have cancelled the retirement

application, and thereupon require[d] [her] to refile with supporting medical

documentation    of her psychiatric/psychological disability."           We are

unpersuaded by these arguments.

      Rossbach inaccurately asserts Dr. Lomazow, in his October 2012 report,

concluded she suffered from a psychological disorder. Dr. Lomazow did not

examine Rossbach for a psychological or psychiatric disorder, much less render

a psychological or psychiatric diagnosis. Rather, Dr. Lomazow stated "it is

conceivable that her disability might lie in a different sphere, i.e., psychiatric

but this is not the point of my examination."

      Rossbach contends the Board failed to comply with N.J.A.C. 17:2-6.26 by

not obtaining an "'independent medical evaluation' when the medical evidence

submitted is not sufficient." We disagree. N.J.A.C. 17:2-6.26 addresses medical

evaluations for the Public Employees' Retirement System (PERS) members;

Rossbach is a PFRS member. The corresponding PFRS regulation, N.J.A.C.

17:4-6.13, does not impose a duty on the Board to schedule an independent

medical evaluation.    On the contrary, it only requires that the physician

designated to perform the medical examination "not be a member's personal


                                                                          A-4967-17T4
                                       13
physician." 2 Moreover, whether a PERS or PFRS member, "[t]he applicant for

ordinary disability retirement benefits has the burden to prove that he or she has

a disabling condition and must produce expert evidence to sustain this burden."

Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super.119,

126 (App. Div. 2008) (citing Patterson, 194 N.J. at 50-51).

      Lastly, Rossbach claims the Board should have cancelled her application

because documentation supporting a mental disability was not provided. We

disagree.

      An ordinary disability retirement benefit application must be "supported

by at least two medical reports" submitted "within six months of the date of the

disability retirement application. N.J.A.C. 17:4-6.1(d). Rossbach submitted

two medical reports within six months of filing her disability application. 3 An

application can only be canceled by the Board pursuant to N.J.A.C. 17:4-6.1(d)

if two medical reports are not timely submitted. That did not occur here.



2
  We further note that N.J.A.C. 17:2-6.26 does not require a second evaluation
for a mental disability when the application originated from a physical medical
disability claim and an evaluation for a physical disability has already been
obtained.
3
  Rossbach timely submitted Dr. Einhorn's August 2012 report and Dr. Frank's
September 2012 report in support of her May 2012 application for ordinary
disability retirement benefits based on her alleged physical medical condition.
                                                                          A-4967-17T4
                                       14
        The Board concluded Rossbach did not prove she had a total and

permanent physical disability. The record fully supports that determination.

        Dr. Lomazow and seven of Rossbach's neurologists found no objective

medical evidence of any neurological disease or condition, much less a total and

permanent physical disability caused by such a disease or condition. Repeated

neurological testing revealed a normal neurological examination and did not

support a diagnosis of ADEM, the medical condition identified in Rossbach's

application. Moreover, Dr. Greco agreed there was no objective neurological

evidence for her symptoms.

        The Board must distinguish between a physical and a mental disability

when granting ordinary disability retirement benefits. N.J.S.A. 43:16A-6(1).

The regulations also distinguish between a "physical disability retirement" and

a "mental health medical disability retirement." N.J.A.C. 17:4-6.1(d)(1)-(2).

Either type of application must be supported by at least two medical reports.

Ibid.

        Rossbach's application listed her disability as ADEM and her symptoms

as: "disorientation in crowds, trouble following conversations with more than

one person, balance and muscle coordination, dizziness, headaches, and neck




                                                                        A-4967-17T4
                                      15
pain."     These are physical medical conditions.   Noticeably absent are any

identified mental health conditions.

         Despite repeated requests from the Board for additional documentation,

Rossbach did not submit a medical report in support of a mental disability until

June 2013, more than a year after filing her application.4 Moreover, Rossbach

did not attempt to amend her application or submit a new application based on

a mental health disability.

         In sum, the Board's final decision was not arbitrary, capricious or

unreasonable and is supported by adequate, substantial, and credible evidence

in the record. Rossbach did not meet her burden of proving she has a disabling

physical medical condition.

         Affirmed.




4
  We note that the June 2013 report did not confirm permanency of Rossbach's
alleged mental health disorder.
                                                                        A-4967-17T4
                                       16
