                                NOT FOR PUBLICATION WITHOUT THE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-2999-18T3

SHIRLEY YOUNG,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,

     Respondent-Respondent.
__________________________

                    Argued February 11, 2020 – Decided March 10, 2020

                    Before Judges Currier and Firko.

                    On appeal from the Board of Trustees of the Teachers'
                    Pension and Annuity Fund, Department of the
                    Treasury.

                    Frank Salvatore Gaudio argued the cause for appellant
                    (Miller & Gaudio, PC, attorneys; Frank Salvatore
                    Gaudio, on the briefs).

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

PER CURIAM

       Shirley Young appeals from the Board of Trustees of the Teachers'

Pension and Annuity Fund (Board) denial of her application for accidental

disability retirement benefits. The Board rejected appellant's application for

accidental disability retirement benefits and ordinary disability retirement

benefits after it adopted, without further comment, the findings and conclusions

reached by an Administrative Law Judge (ALJ). We affirm the Board's decision.

                                       I.

       Appellant was employed as an elementary school teacher beginning in

1992. On March 23, 2009, she slipped on urine on a school stairwell and fell

down six steps, striking her head on the floor and railings. Appellant testified

she thought there was a brief period of unconsciousness. She was evaluated at

an emergency room later that day. X-rays were taken of her lumbar spine and

right knee which were negative for fracture. A CT1 scan of her head was

suspicious for contusion. Appellant was released from the hospital that day.

Prior to the accident, appellant's medical history was significant for monthly



1
    Computed Tomography.
                                                                        A-2999-18T3
                                       2
hormonal headaches, colitis, Crohn's disease, depression, anxiety, and

alcoholism.

       On March 25, 2009, Dr. Roy Mittman, an orthopedic surgeon, diagnosed

appellant with a right knee meniscal tear and contusion. On March 30, 2009,

Dr. Haralambos Demetriades, also an orthopedic surgeon, diagnosed her with

lumbar strain, degenerative disc disease, displacement of a lumbar intervertebral

disc, and the knee conditions noted above, for which Naprosyn was prescribed.

       On March 31, 2009, appellant was evaluated by Dr. James A.B. Drury,

her treating psychiatrist for the previous two-and-a-half years.      Before the

incident, Dr. Drury diagnosed appellant with bipolar disorder and alcohol

dependency. He prescribed Xanax, Paxil, Lamictal, and Celexa. Appellant

recalled taking these medications before the incident.

       Also, on March 31, 2009, appellant was evaluated by Dr. Alan Colicchio,

a neurologist, for her headaches. He requested an MRI 2 of the brain and an

electroencephalogram (EEG). 3 The EEG was conducted on April 8, 2009, and



2
    Magnetic Resonance Imaging.
3
   An EEG is a test that detects abnormalities in the brain waves, or in the
electrical activity of the brain. During the procedure, electrodes consisting of
small metal discs with thin wires are pasted onto the scalp. The electrodes detect


                                                                          A-2999-18T3
                                        3
showed seizure activity. The EEG was repeated on April 27, 2009, and revealed

similar abnormalities.

      On May 7, 2009, Dr. Mittman performed a right knee arthroscopy on

appellant. Her knee became septic, requiring a hospitalization on May 19, 2009

and a debridement procedure. Thereafter, on June 9, 2009, appellant began

treatment with Dr. Peter Barcas, a neurologist, who treated her headaches with

an anti-depressant medication.

      Appellant was examined by a psychologist, Dr. Jay Gordon, on June 18,

2009, who diagnosed her with post-concussive syndrome, adjustment disorder,

and anxious and depressive mood. He recommended psychotherapy, cognitive

rehabilitation, and biofeedback.     In July 2009, appellant underwent a

neuropsychological evaluation. She scored average on verbal reasoning scores

and below-average on executive functioning and memory. Personality testing

suggested appellant exaggerated her symptoms, and Dr. Gordon concluded her

inconsistent testing efforts underestimated her actual abilities. On August 21,

2009, Dr. Barcas noted appellant was stable and cleared her to return to work.




tiny electrical charges that result from the activity of brain cells.
Electroencephalogram (EEG), Johns Hopkins Medicine, https://www.hopkins
medicine.org/health/treatment-tests-and-therapies/electroencephalogram-eeg
(last visited February 25, 2020).
                                                                        A-2999-18T3
                                       4
      Appellant returned to work full-time in October 2009 for about a month.

Dr. Gordon noted she made "significant progress" but she complained of

forgetfulness and fatigue. Appellant claimed she could not keep up with her

tasks and Dr. Barcas authorized her to be out of work for two months. In Spring

2010, appellant returned to work for four weeks but complained of forgetfulness,

loss of concentration, and problems transposing letters and numbers. Appellant

also claimed she was constantly late for class, misdiaried events, filed reports

late, and forgot which students were hers, resulting in her resignation. A follow-

up CT scan of appellant's head was performed on August 31, 2010, and was

reported as normal.

      On October 26, 2010, appellant applied for accidental disability retirement

benefits claiming she was disabled by a head injury, post-traumatic stress

disorder (PTSD), headaches, cognitive impairment, depression, memory

problems, a meniscus tear in her right knee, cervical and lumbar disc injuries.

Appellant's application was denied because the Board found she was "not

considered totally and permanently disabled from the performance of [her]

regular and assigned duties[,]" and "there [was] no evidence in the record of

direct causation of a total and permanent disability."




                                                                          A-2999-18T3
                                        5
      On November 15, 2010, appellant was evaluated by Dr. Barry Edison, an

ophthalmologist, because of her complaints of eye pain, double and blurry

vision. There were no findings made relative to her complaint of eye pain.

      On February 15, 2011, Dr. Joshua Mendelson, a neurologist, evaluated

appellant for her migraine headaches and prescribed medications.              Dr.

Mendelson did not opine that appellant was permanently and totally disabled.

      Sometime in February 2011, appellant reported that her right knee buckled

while in her kitchen at her home, resulting in a swollen right knee and fractured

ribs, for which she followed up with Dr. Aron Green, an orthopedic surgeon.

On March 24, 2011, appellant was evaluated by Dr. Steven Dyckman, a

psychiatrist, who diagnosed her with panic disorder, and prescribed Effexor. On

August 4, 2011, appellant was evaluated by Dr. Francis Bernard Ponce, a

neurologist, who prescribed Botox injections to treat her migraine headaches,

which was continued when he examined her again on January 26, 2017. On

August 29, 2011, appellant was evaluated by Dr. Peter Harris, a psychiatrist,

who diagnosed her with post-concussive syndrome and adjustment disorder with

mixed emotional features.

      On September 8, 2011, the Board reconsidered and denied appellant's

application for the same reasons. On March 1, 2012, upon appellant's request,


                                                                         A-2999-18T3
                                       6
the Board reconsidered her application a second time and denied it.           She

appealed the Board's determination to the OAL as a contested case on March 2,

2012.

        Appellant was admitted to the Carrier Clinic on March 20, 2012 due to

severe depression, and was discharged eight days later. Thereafter, appellant

underwent ongoing psychiatric treatment and psychotherapy. On June 8, 2016,

appellant underwent surgery for cervical stenosis and degenerative disc dis ease

of the cervical spine.

        After several ALJs retired, the matter was assigned to ALJ Dean J. Buono

on January 20, 2017, who heard testimony from appellant and her expert medical

witness, Anca Bereanu, M.D. In June 2018, the case was re-assigned to ALJ

David M. Fritch. ALJ Fritch reviewed the trial transcripts from the previous

proceedings, and heard additional testimony from appellant, her fiancé, and

respondent's medical expert witness, Mark J. Chelder, Ph.D.

        Appellant testified that she suffers from migraine headaches three times

per week, short-term memory loss, which affects her ability to read, impaired

mobility in her neck, worsened anxiety and depression, insomnia, and knee pain.

        Dr. Bereanu, who was qualified as an expert in the fields of neurology and

psychology, testified that she physically examined appellant in April 2015. In


                                                                          A-2999-18T3
                                         7
addition, Dr. Bereanu took appellant's medical history and reviewed her medical

records before and after April 2015. Dr. Bereanu diagnosed appellant with a

closed head injury, post-concussive syndrome, post-traumatic left temporal

seizures, right knee tunnel derangement, which required surgery, followed by a

secondary infection, contusion to the lumbosacral spine, and mild reactive

depression aggravated by mild cognitive defects. Appellant's expert testified

that the CT of the head and brain showed some swelling affecting the left frontal

lobe, and a repeat EEG performed in April 2009 revealed seizure activity. Dr.

Bereanu noted appellant had no prior knee or spine surgeries.

      On behalf of the Board, the ALJ heard testimony from Dr. Chelder , who

was qualified as an expert in the field of psychology. Dr. Chelder conducted an

independent medical examination on March 22, 2017.              As part of his

examination, Dr. Chelder reviewed appellant's medical history and medical

records. He administered a Personality Assessment Inventory (PAI) test and

opined appellant may not have answered in a forthright manner, and indicated a

level of defensiveness and a tendency toward symptom exaggeration.

      According to Dr. Chelder, appellant's current personality assessment did

not indicate significant psychopathology, and she had a pre-injury baseline of

psychological issues, including depression and anxiety. Dr. Chelder concluded


                                                                         A-2999-18T3
                                       8
that there was insufficient evidence to find appellant totally and permanently

disabled, and her pre-existing anxiety and depression were the underlying cause

of her reported symptomology.

      After considering the testimony, the ALJ found that:

            [Appellant's] complaints are generally subjective and
            not subject to verification by objective means. Her
            disability claim relies entirely on her self-reported
            cognitive defects and complaints of migraine headaches
            following the incident. While [appellant] underwent a
            variety of tests to measure her cognitive abilities, none
            of these tests had a baseline to compare [appellant]'s
            performance post-incident with her abilities before the
            incident, making it impossible to know with surety
            what incremental level of cognitive impairment
            [appellant] suffers from post-incident beyond relying
            on [appellant]'s own subjective reporting.

            [(Footnote omitted).]

      The Board adopted the ALJ's decision and denied appellant's application

for accidental disability retirement benefits and ordinary disability benefits. On

appeal, appellant argues the Board erred in finding that she was not totally and

permanently disabled as a direct result of a traumatic event on March 23, 2009,

and she was denied due process because multiple ALJs heard the trial testimony.

                                       II.

      The scope of our review of a final agency decision is limited. Russo v.

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

                                                                          A-2999-18T3
                                        9
Herrmann, 192 N.J. 19, 27 (2007)). We will uphold an agency's decision "unless

there is a clear showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record." Ibid. (quoting Herrmann, 192 N.J. at 27-28).

However, we are not "bound by an agency's interpretation of a statute or its

determination of a strictly legal issue . . . ." Ibid. (quoting Mayflower Sec. Co.

v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

      We accord deference to the credibility determinations of the ALJ, who

had the opportunity to hear the testimony of the witnesses and consider the

exhibits. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We may not

"engage in an independent assessment of the evidence as if [we] were the court

of first instance." In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v.

Locurto, 157 N.J. 463, 471 (1999)).

      Under the Teachers' Pension and Annuity Fund Law, N.J.S.A. 18A:66-1

to -93, an education professional, upon becoming permanently incapacitated,

can receive either ordinary disability or accidental disability retirement benefits.

Kaspar v. Bd. of Trs. of The Teachers' Pension & Annuity Fund, 164 N.J. 564,

573 (2000). To qualify for ordinary disability retirement benefits under N.J.S.A.

18A:66-39(b), a teacher must demonstrate he or she is "physically or mentally

incapacitated for the performance of duty and should be retired." A teacher has


                                                                            A-2999-18T3
                                        10
the burden of proof. Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund,

404 N.J. Super. 119, 126 (App. Div. 2008).

      An applicant must establish an incapacity to perform duties in the general

area of his or her regular employment, rather than merely showing an inability

to perform his or her specific job. See Bueno, see Id. at 130-31. An appellant

does not need to prove he or she is "generally unemployable" or "disabled from

performing the specific function[s] for which he [or she] was hired." Getty v.

Prison Officers' Pension Fund, 85 N.J. Super. 383, 390 (App. Div. 1964). "[T]he

criterion is whether or not [the appellant] is employable in the general area of

his [or her] ordinary employment . . . ." Skulski v. Nolan, 68 N.J. 179, 205

(1975) (quoting Getty, 85 N.J. Super. at 390).

      Applying Skulski and Bueno with our limited scope of review, there was

nothing arbitrary, capricious or unreasonable in the Board's decision. The ALJ

weighed the expert testimony and concluded that Dr. Chelder's opinion

regarding appellant's health and ability to work as a teacher was more persuasive

than the opinion presented by Dr. Bereanu.

      Appellant bore the burden of proving by a preponderance of the credible

evidence that the 2009 incident was "the essential significant or the substantial

contributing cause of [her] resultant disability." Gerba v. Bd. of Trs. of the Pub.


                                                                           A-2999-18T3
                                       11
Emps.' Ret. Sys., 83 N.J. 174, 186 (1980) (finding the medical evidence

demonstrated the incident aggravated the progression of an arthritic condition

but failed to establish the claimant's disability was a direct result of the injury

for an award of accidental disability benefits).

      In this case, there was ample evidence in the record that appellant's

cognitive symptoms were attributable to her pre-existing psychological

conditions and not the residual effect of any injuries she sustained in the

incident.   Moreover, Doctors Bereanu and Chelder agreed that appellant's

cognitive symptoms are worsening over time, instead of improving, as would be

expected of cognitive complaints emanating from a physical injury.            And,

neither expert could opine as to the cause of appellant's migraine headaches,

leading the ALJ to accept Dr. Chelder's assessment that appellant's migraine

headaches are also related to appellant's pre-existing psychological problems.

                                       III.

      We are unpersuaded by appellant's argument that she was denied due

process because multiple ALJ judges presided over the hearing. Here, ALJ

Fritch, the substituted judge, reviewed the transcribed testimony of appellant's

first day of testimony and the transcribed testimony of Dr. Bereanu. Moreover,

ALJ Fritch presided over the hearing when appellant testified again, and he had


                                                                           A-2999-18T3
                                       12
the ability to assess her credibility and demeanor.      ALJ Fritch also heard

testimony from appellant's fiancé and Dr. Chelder.

      We conclude there is sufficient credible evidence to support the Board's

determination that appellant's disability was not the direct result of a traumatic

event, and therefore she is not entitled to accidental retirement benefits or

ordinary disability retirement benefits.

      Affirmed.




                                                                          A-2999-18T3
                                       13
