                                 NOT FOR PUBLICATION WITHOUT THE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-0047-17T1

C.S.,

           Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
_____________________________

                    Argued October 24, 2018 – Decided June 6, 2019

                    Before Judges Nugent and Reisner.

                    On appeal from the Board of Trustees of the Public
                    Employees' Retirement System, Department of the
                    Treasury, PERS No. 2-10-275988.

                    Samuel Michael Gaylord argued the cause for
                    appellants (Gaylord Popp, LLC, attorneys; Samuel
                    Michael Gaylord, on the brief).

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

PER CURIAM

      Petitioner, C.S., a member of the Public Employees' Retirement System

(PERS), appeals from the final administrative determination of the PERS Board

of Trustees (PERS Board or Board), which adopted the Initial Decision of an

Administrative Law Judge (ALJ) that denied petitioner's application for

accidental disability retirement benefits. The ALJ and Board denied petitioner's

application after concluding petitioner's disability resulted from a preex isting

condition alone or in combination with work events, thus disqualifying her for

accidental disability benefits. Because the Board's decision is not arbitrary or

capricious, we affirm.

      Petitioner, a special education aide, had been employed by the Princeton

Public School District for approximately fifteen years when she filed for

accidental disability retirement benefits. The Board denied her application but

granted her ordinary retirement benefits. She filed an administrative appeal and

the matter was transferred to the Office of Administrative Law (OAL) as a

contested case. Hearings were conducted before an ALJ, who retired before

rendering a decision. Another ALJ rendered a decision upholding the denial of



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                                       2
petitioner's application. 1 Exceptions were filed, the Board upheld the decision,

and this appeal followed.

      During the OAL hearing, petitioner recounted the incident that she

claimed precipitated her retirement. Petitioner was working with an autistic

student, whom she described as approximately six feet tall with broad shoulders.

The student said he was going to kill another teacher. Petitioner calmed the

student and took him to the school psychologist's office. There, the student

described for the psychologist how he was going to push the other teacher into

an empty classroom and smash her head against a brick wall.

      As the psychologist was responding, the student said, "[a]nd I'm going to

do it now." He stood up and started toward the door. Petitioner and the

psychologist, a petite woman, attempted to block the student, who pushed them

both against an office wall. The psychologist yelled to petitioner to leave and

get help.   Petitioner did, but envisioned horrible things happening to the

psychologist. A gym teacher and others arrived and escorted the student to the

main office, where petitioner waited with him until the police arrived.




1
 According to the ALJ's Initial Decision, "the parties agreed to have the [second
ALJ] render a decision on the record."


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                                       3
      Petitioner testified she was never the same after the incident. During the

incident, she experienced a terrible fear for her own life and a greater fear for

the psychologist's life. Eventually, she was unable to return to school.

      The incident with the autistic child occurred on November 30, 2011. With

the exception of two accidents in which petitioner injured her shoulder and her

back, requiring her to take time to recuperate, she worked until March 19, 2012.

She never returned to school after that day.

      Two experts testified at the OAL hearing.        Petitioner presented the

testimony of a psychiatrist who had been treating her for a mood disorder and

major depressive disorder for approximately ten years before the incident with

the autistic child. The psychiatrist had treated petitioner with medications such

as antidepressants, mood stabilizers, anxiety relieving medications, and

psychotherapy. The treatment was effective, for petitioner had no difficulty

performing her job. The doctor said she performed her job diligently and rarely

missed work, never because of job stress.

      The psychiatrist opined that petitioner developed Post-Traumatic Stress

Disorder (PTSD) following the November 2011 incident. He explained that the

development was gradual. He further explained that petitioner was stressed but

tried her best to continue working. She began to develop symptoms of insomnia,


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                                       4
severe sleep disturbance, and disorganized thought. Some months later, she

began to have flashbacks of the incident.

      The psychiatrist also testified that petitioner sustained physical injuries in

January and March 2012, which contributed to the considerable stress she was

experiencing from the November 2011 incident.             Because her emotional

condition was so fragile, he recommended that she take a leave of absence. The

doctor described petitioner as frazzled, overwhelmed, and unable to think

straight. He opined that her condition was a result of a combination of the

physical injuries and the emotional injury she had sustained.

      In summary, petitioner's psychiatrist testified she suffered from disabling

PTSD following the November 2011 incident with the autistic child. Although

the stressors following her physical injuries may have been contributing factors,

the doctor opined, within a reasonable degree of medical certainty, the

November 2011 incident was the triggering factor and substantial cause of

petitioner's PTSD, which has resulted in petitioner's total disability.

      The Board presented the testimony of a psychologist who examined

petitioner once, in November 2012, nearly four years before the hearing. The

psychologist recounted petitioner's history of mental health issues, including her

hospitalizations in 1990, and the history of treatment with her psychiatrist. In


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                                         5
the psychologist's opinion, petitioner did not suffer from PTSD; rather, she

suffered from Major Depressive Disorder.

      Based upon his review of petitioner's records, his clinical examination,

and petitioner's responses to a Personality Assessment Inventory, the

psychologist judged the petitioner's depression to be recurrent and moderate.

Although petitioner's responses to the Personality Assessment Inventory

included features of PTSD, the psychologist did not feel that it was clear she

met all the criteria for PTSD.

      The psychologist did believe petitioner was totally and permanently

disabled from performing her duties as a special education aide, but he attributed

the cause of her disability to her previous major depressive disorder. The

November 2011 incident with the autistic child was, in his opinion, not a

significant or substantial cause of her disability. He pointed out that after the

November 2011 incident, petitioner was hurt at work twice, once when she

injured her back lifting books, and once when she was knocked down by a

student. In his opinion, the November 2011 incident and the two subsequent

incidents involving physical trauma accelerated petitioner's preexisting major

depressive disorder.




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                                        6
      The ALJ found the testimony of petitioner's psychiatrist – that petitioner

suffered PTSD as a result of the November 30, 2011 incident – not to be credible.

The ALJ found the testimony of the Board's psychologist – that petitioner's

current condition was preexisting – credible.       Based on these credibility

determinations, the ALJ found as a fact that though petitioner was totally and

permanently disabled, her condition was preexisting and not the result of the

November 30, 2011 incident. The Board adopted the ALJ's decision. Petitioner

filed this appeal.

      We have limited authority when we review a final decision of the PERS

Board. See In re Stallworth, 208 N.J. 182, 194 (2011). We "may not substitute

[our] own judgment for the agency's, even though [we] might have reached a

different result." Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)). "In

order to reverse an agency's judgment, [we] must find the agency's decision to

be 'arbitrary, capricious, or unreasonable, or ... not supported by substantial

credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway

State Prison, 81 N.J. 571, 579-80 (1980)). The burden of proving an agency

action is arbitrary, capricious, or unreasonable is on the party challenging the

agency's decision. Bueno v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div.




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                                       7
2011) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App.

Div. 2002)).

      A member of PERS is eligible for accidental disability retirement if the

member "is permanently and totally disabled as a direct result of a traumatic

event occurring during and as a result of the performance of his regular or

assigned duties." N.J.S.A. 43:15A-43. If a member claims to suffer from a

permanent mental incapacity due solely to psychological trauma, the member

must make a threshold showing

            that his or her disability results "from direct personal
            experience of a terrifying or horror-inducing event that
            involves actual or threatened death or serious injury, or
            a similarly serious threat to the physical integrity of the
            member or another person," and that the event is "not
            inconsequential but is objectively capable of causing a
            reasonable person in similar circumstances to suffer a
            disabling mental injury."

            [Mount v. Board of Trustees, Police and Firemen's
            Retirement System, 233 N.J. 402, 407 (2018) (quoting
            Patterson v. Board of Trustees, State Police Retirement
            System, 194 N.J. 29, 34 (2008)).]

      If a member does not satisfy this threshold requirement, the Board must

deny the application for accidental disability benefits.      Ibid. If a member

satisfies this threshold requirement, the member must then satisfy the

requirements announced in Richardson v. Board of Trustees, Police and


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                                        8
Firemen's Retirement System, 192 N.J. 189, 212-13 (2007) and reiterated in

Brooks v. Board of Trustees, Public Employees' Retirement System, 425 N.J.

Super. 277, 281 (App. Div. 2012). Mount, 233 N.J. at 407. The Richardson

requirements are:

            1.    that [the member] is permanently and totally
            disabled;

            2.      as a direct result of a traumatic event that is
                    a.     identifiable as to time and place,
                    b.     undesigned and unexpected, and
                    c.     caused by a circumstance external to the
                           member (not the result of pre-existing
                           disease that is aggravated or accelerated by
                           the work);

            3.     that the traumatic event occurred during and as a
            result of the member's regular or assigned duties;

            4.  that the disability was not the result of the
            member's willful negligence; and

            5.    that the member is mentally or physically
            incapacitated from performing his usual or any other
            duty.

            [Richardson, 192 N.J. at 212-13.]

      In her first argument on appeal, petitioner asserts this case turns on the

credibility of the experts, who gave contrasting opinions as to whether she was

permanently and totally disabled as a direct result of the November 30, 2011

incident. She argues extensively that her expert psychiatrist's testimony was

                                                                          A-0047-17T1
                                         9
more credible than that of the Board's expert psychologist and the ALJ erred by

finding to the contrary.

      It is important for petitioner to understand that "[w]hen error in factfinding

of a judge or administrative agency is alleged, the scope of appellate review is

limited. We will decide whether the findings made could reasonably have been

reached on 'sufficient' or 'substantial' credible evidence present in the record

considering the proofs as a whole." Cannuscio v. Claridge Hotel and Casino,

319 N.J. Super. 342, 347 (App. Div. 1999) (citing Close v. Kordulak Bros., 44

N.J. 589, 599 (1965)). "Appellate review does not consist of weighing evidence

anew and making independent factual findings; rather, our function is to

determine whether there is adequate evidence to support the judgment rendered

at trial." Ibid. (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We give "due

regard to the opportunity of the one who heard the witnesses to judge . . . their

credibility." Close, 44 N.J. at 599. In addition, "in the case of agency review,

we give due regard . . . to the agency's expertise where such expertise is a

pertinent factor." Ibid.

      Here, the ALJ's credibility determinations, adopted by the Board, were

supported by ample evidence in the record. Petitioner had a significant history

of major depression that predated the November 2011 incident. She worked for


                                                                            A-0047-17T1
                                       10
more than three months following the incident with the autistic student, except

for time she needed to recuperate from two subsequent incidents that caused her

physical trauma. These subsequent incidents, according to petitioner's expert,

contributed to her stress. It was only after the second incident involving physical

trauma that petitioner's psychiatrist recommended she take a leave of absence.

She did. She never returned to her job.

      Considering these facts, and adhering to our limited standard of review,

we cannot say the Board's final administrative determination, supported as it

was by ample evidence in the record, was arbitrary, capricious, or unreasonable.

Consequently, we must reject petitioner's first argument. Stallworth, 208 N.J.

at 194.

      In view of our disposition of petitioner's first argument, we need not

address her second, that is, she made the threshold showing required of PERS

members seeking accidental disability retirement benefits based on a permanent

mental incapacity due solely to psychological trauma.

      Affirmed.




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                                       11
