                                NOT FOR PUBLICATION WITHOUT THE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-4998-16T1

BONNIE MURPHY,

         Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
______________________________

                   Argued July 10, 2018 – Decided April 15, 2019

                   Before Judges O'Connor and Moynihan.

                   On appeal from the Board of Trustees of the Public
                   Employees' Retirement System, Department of the
                   Treasury, PERS No. 1073479.

                   Flavio L. Komuves argued the cause for appellant
                   (Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
                   attorneys; Richard A. Friedman, of counsel and on the
                   briefs; Kaitlyn E. Dunphy, on the briefs).

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

      The opinion of the court was delivered by

O'Connor, J.A.D.

      Petitioner Bonnie Murphy appeals from a final determination of the

Board of Trustees of the Public Employees' Retirement System (PERS), which

found she was not entitled to ordinary disability retirement benefits (ODRB).

After reviewing the record and applicable legal principles, we affirm. 1

                                        I

      The salient facts are undisputed. In 1999, petitioner commenced

employment as a computer technician with the Wall Township Board of

Education (BOE). In 2006, the BOE terminated petitioner. In response, the

Wall Township Information Technology Association filed an unfair labor

practice charge on petitioner's behalf with the Public Employment Relations

Commission (PERC).

      In 2009, PERC found in petitioner's favor and ordered she be reinstated

to her position, and that the BOE compensate her for lost salary, interest and

benefits, retroactive to August 18, 2006, the day she was terminated. The BOE

1
  We note petitioner's motion to permit the filing of a supplemental briefing
was granted and both parties' briefs were reviewed.


                                                                           A-4998-16T1
                                       2
filed but PERC denied its motion for reconsideration, a decision we affirmed.

See Wall Twp. Bd. of Educ. v. Wall Twp. Info. Tech. Ass'n, No. A-3764-09

(App. Div. Jan. 26, 2011). In 2012, petitioner and the BOE entered into a

settlement agreement that disposed of all pending claims between them. In

pertinent part, the agreement provided that, in consideration for $485,000,

petitioner agreed to resign from the BOE effective June 30, 2012, and to not

seek any position with the BOE after her resignation.

      Petitioner obtained a job in the private sector. Thereafter, she became

totally and permanently disabled as of October 2013. On April 10, 2014,

petitioner submitted an application to PERS for ODRB pursuant to N.J.S.A.

43:15A-42. On December 10, 2014, the Board of Trustees (Board) of PERS

denied her application and petitioner appealed. The Board deemed the matter

a contested case and transferred it to the Office of Administrative Law for a

hearing.

      When before the Administrative Law Judge (ALJ), the parties stipulated

to the facts. Petitioner contended that, as a matter of law, she was entitled to

ODRB pursuant to N.J.S.A. 43:15A-42. In pertinent part, such statute states:

            A member [of PERS], under 60 years of age, who has
            10 or more years of credit for New Jersey service,
            shall, . . . upon his own application . . . be retired for
            ordinary disability by the board of trustees. The

                                                                         A-4998-16T1
                                       3
            physician or physicians designated by the board shall
            have first made a medical examination of him . . . and
            shall have certified to the board that the member is
            physically or mentally incapacitated for the
            performance of duty and should be retired.

            [(emphasis added).]

      Petitioner claimed that because it was not disputed she was still a

member of PERS,2 under sixty years of age, had provided over ten years of

service for the State, and was totally and permanently disabled when she

applied for ODRB benefits, she was entitled to ODRB pursuant to N.J.S.A.

43:15A-42. The Board argued she was not entitled to these benefits because,

when she voluntarily resigned from public employment on June 30, 2012, she

did not have the disability that caused her to subsequently submit an

application for ODRB in December 2014. It was stipulated petitioner became

totally and permanently disabled as of October 2013.

      In his initial decision, the ALJ framed the issue as whether "N.J.S.A.

43:15A-42 require[s] a member to prove the disability existed when she

separated from service and that the disability was the reason she separated

from service[.]" The ALJ determined a member need not prove these factors

2
  N.J.S.A. 43:15A-7(e) provides that "[m]embership of any person in the
retirement system shall cease if he shall discontinue his service for more than
two consecutive years."


                                                                        A-4998-16T1
                                      4
and reversed the Board's decision. The ALJ's principal reason was the

language of the statute provides that a member of PERS qualifies for ODRB as

long as the applicant was "physically or mentally incapacitated for the

performance of duty and should be retired[,]" and that the applicant was a

member of PERS when the application for benefits is made. Thus, the ALJ

reasoned, petitioner was entitled to ODRB because she was still a member of

PERS when she applied for benefits and it was undisputed she became

disabled while a member.

      The Board appealed and reversed the ALJ's initial decision. In its final

decision, the Board observed that, "the only issue in this case is whether a

PERS member is eligible for ordinary disability retirement benefits if she

separates from service because of a voluntary resignation . . . rather than a

disability."

       The Board acknowledged a member's PERS account remains active for

two years after separating from public service employment. See N.J.S.A.

43:15A-7(e). However, the Board determined that a member may not

voluntarily resign, become disabled after separating from service, and then

receive an ordinary disability retirement benefit for a disability that manifests

after the separation. The Board's reason for this determination was "[t]his


                                                                          A-4998-16T1
                                       5
simply could not have been what the Legislature intended." The Board

focused upon the following language of N.J.S.A. 43:15A-42 to conclude a

member must be in public service employment to be eligible for ODRB:

            The physician or physicians designated by the board
            shall have first made a medical examination of [the
            member] . . . and shall have certified to the board that
            the member is physically or mentally incapacitated for
            the performance of duty and should be retired.

            [(emphasis added).]

      In the Board's view, this language revealed the Legislature contemplated

that a member seeking ODRB must be holding a position of public

employment when he becomes disabled. The Board noted such language

indicates the member was performing duties for a public entity for which he or

she became too incapacitated to perform, necessitating that such member

retire. Here, the Board reasoned, because petitioner voluntarily resigned from

the BOE before she became disabled, she could not be retired from such

position.

      Citing Sussex Commons Associates, LLC v. Rutgers, 210 N.J. 531, 540-

41 (2012), the Board also noted that a statute should not be interpreted in a

way that produces "a manifestly absurd result." The Board found it would be

"egregious" to interpret N.J.S.A. 43:15A-42 to mean that a PERS member who


                                                                        A-4998-16T1
                                       6
voluntarily resigns from public employment and subsequently becomes

disabled while working for a private employer is eligible to collect ODRB.

The Board stated, "[c]learly the Legislature could not have intended to provide

. . . disability coverage for injuries or conditions which were not present when

the member separated from service and was no longer contributing to PERS."

                                        II

      On appeal, petitioner contends the "plain, unambiguous language" of

N.J.S.A. 43:15A-42 does not require a PERS member to become disabled

before separation from public service in order to be eligible for ODRB. Thus,

because she became totally and permanently disabled while a PERS member,

she claims she is entitled to ODRB. Petitioner further contends the Board 's

decision is not supported by its long-standing interpretation of N.J.S.A.

43:15A-42 but, even if it were, its interpretation is contrary to statutory law.

      Generally, final decisions of state administrative agencies are entitled to

considerable deference, and an agency's interpretation of statutes "within its

implementing and enforcing responsibility is ordinarily entitled to our

deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56

(App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.

Super. 93, 102 (App. Div. 1997)). In other words, "[w]e give substantial


                                                                          A-4998-16T1
                                        7
deference to the interpretation of the agency charged with enforcing an act."

Merin v. Maglaki, 126 N.J. 430, 436-37 (1992). "Absent arbitrary,

unreasonable or capricious action, the agency's determination must be

affirmed." Wnuck, 337 N.J. Super. at 56 (citing R & R Mktg., LLC v. Brown-

Forman Corp., 158 N.J. 170, 175 (1999)). "An appellate tribunal is, however,

in no way bound by the agency's interpretation of a statute or its determination

of a strictly legal issue." Mayflower Secs., Co. v. Bureau of Secs. in Div. of

Consumer Affairs, 64 N.J. 85, 93 (1973).

      A court's obligation when interpreting a law is to determine and carry

out the Legislature's intent. Allen v. V & A Bros., Inc., 208 N.J. 114, 127

(2011). To do so, courts first look at the plain language of the statute.

DiProspero v. Penn, 183 N.J. 477, 492-93 (2005). However, if "the statute

contains some ambiguity . . . it is permissible to turn to extrinsic evidence for

aid in interpreting [it]." State v. Smith, 197 N.J. 325, 333 (2009). Courts may

also look to extrinsic evidence "if a plain reading of the statute leads to an

absurd result . . . ." DiProspero, 183 N.J. at 493. In our view, N.J.S.A.

43:15A-42 is sufficiently ambiguous to require that we resort to extrinsic

evidence to divine the Legislature's intent when it enacted this statute.




                                                                            A-4998-16T1
                                        8
      In In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386 (App. Div.),

certif. denied, 236 N.J. 38 (2018), we noted, "[v]oluntary or involuntary

termination of employment, for non-disability reasons, generally deems a

member ineligible for disability benefits. Such a holding comports with the

existing overall framework of the enabling, eligibility, and rehabilitation

statutes, and policies applicable to the various State public retirement

systems." Id. at 394-95.

      The statutes that permit ODRB for members of PERS are found in

N.J.S.A. 43:15A-42 to -46.2; the enabling statutes undergirding PERS are

N.J.S.A. 43:15A-1 to -161. In N.J.A.C., we noted that none of the enabling

statutes for any of the State-administered retirement systems "explicitly say

that a disability retirement applicant must have left public service due to a

disability." 454 N.J. Super. at 399. However, we found that there is no

"explicit text in the enabling statutes because it is common sense that disability

retirees leave their jobs due to a purported disability. After all, the employee

seeks disability retirement benefits." Ibid. In addition, we noted eligibility

statutes require a finding the applicant is "incapacitated for the performance of

duty[,]" and, therefore, it is "unlikely that the Legislature intended membership




                                                                           A-4998-16T1
                                       9
[in a retirement system] to be the sole qualification for disability retirement

benefits." Id. at 400.

       In our view, N.J.S.A. 43:15A-42, an eligibility statute, is no exception.

This statute requires that before a member can be found eligible for ODRB, a

physician or physicians must certify the member is incapacitated "for the

performance of duty" and "should be retired." Such language reveals the

Legislature contemplated that when a member seeks ODRB, he or she is

performing duties for a public entity, but a physician has determined such

member must retire.

      Rehabilitation statutes also reflect the Legislature's intention that, to

qualify for ODRB, a member must be working in public service when he or

she seeks such benefits, because such statutes require a disability retiree whose

disability has abated to return to active service. See Id. at 400-01; Klumb v.

Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14,

33-35 (2009). The rehabilitation statute for PERS is N.J.S.A. 43:15A-44(a).

In N.J.A.C., we commented:

            Returning to active service presumes that, at the time
            the beneficiary left public service, he or she actually
            had a duty. And so, a beneficiary who previously left
            public service for some reason other than a disability
            . . . would have no employment or work duty from
            which to return. . . . The statutory language expressly

                                                                          A-4998-16T1
                                      10
            conditions reinstatement for disability retirees upon
            disability rehabilitation. It logically follows then that
            disability retirees must have left public service
            because of the disability in the first instance; unlike
            someone who has been terminated for cause.

                  If . . . any member could receive disability
            retirement benefits even after leaving public
            employment for an independent reason, a member
            removed for cause could arguably receive disability
            retirement benefits, and then argue for reinstatement
            by operation of . . . the rehabilitation statutes,
            following rehabilitation from the purported disability.
            There is no evidence that the Legislature intended, and
            nothing in the text of the applicable statutes supports,
            such an absurd result.

            [454 N.J. Super. at 401-02.]

      To the extent we have not expressly addressed any arguments advanced

by petitioner, it is because we concluded they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      11
