                                NOT FOR PUBLICATION WITHOUT THE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-1488-17T4

BONNIE SHAIN,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
TEACHERS' PENSION
AND ANNUITY FUND,

     Respondent-Respondent.
______________________________

                    Submitted February 11, 2019 – Decided March 22, 2019

                    Before Judges Gooden Brown and Rose.

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

                    Charles D. Bodner, attorney for appellant.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; George E. Loeser, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Bonnie Shain appeals from an October 11, 2017 final agency decision of

the Board of Trustees (Board) of the Teachers' Pension and Annuity Fund

(TPAF). The Board adopted the initial decision of the Administrative Law

Judge (ALJ), denying her application for accidental disability retirement

benefits on the ground that she was not totally and permanently disabled. We

affirm.

      By way of background, a TPAF "member, under [sixty-five] years of age,"

is eligible for an accidental disability retirement pension "if said 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 [or her] regular or assigned

duties[.]" N.J.S.A. 18A:66-39(c). Before considering such an application, a

physician designated by the Board

            shall have certified to the [B]oard that [the member] is
            physically or mentally incapacitated for the
            performance of duty, and should be retired, and the
            employer shall have certified to the [B]oard that 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 and assigned
            duties, the time and place where the duty causing the
            disability was performed, that the disability was not the
            result of his willful negligence[,] and that the member
            should be retired.

            [Ibid.]


                                                                          A-1488-17T4
                                        2
      In Richardson v. Board of Trustees, Police and Firemen's Retirement

System, 192 N.J. 189 (2007), the Court clarified the meaning of the term

"traumatic event," and set forth a five-pronged standard mandating that a

pension system member seeking accidental disability benefits prove:

            (1.) that he [or she] 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.

            [Id. at 212-13.]

      On September 29, 2014, fifty-nine-year-old Bonnie Shain, then a

seventeen-year veteran physical education teacher, applied for accidental

disability retirement benefits based on injuries sustained on January 9, 2014,

                                                                          A-1488-17T4
                                         3
when she was hit in the head while "spotting" a student in gym class (the

incident). On April 2, 2015, the Board denied Shain's application. "Although

the Board found that the incident . . . was identifiable as to time and place and

. . . was undesigned and unexpected, there [was] no evidence in the record of

direct causation of a total and permanent disability." Thus, the Board concluded

Shain was "not totally and permanently disabled from the performance of [her]

regular and assigned job duties[,]" and was "not physically or mentally

incapacitated from the performance of [her] usual or other duties that [her]

employer [was] willing to offer." Shain filed an administrative appeal and the

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

case. See N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13.

      During the ensuing OAL hearing conducted on May 2, 2017, Shain, and

two experts testified, Robert Sica, Ph.D., a clinical neuropsychologist and

Shain's treating doctor, and Steven Lomazow, M.D., a Board certified

neurologist designated by the Board. Shain testified about the incident, her

injuries and resulting symptoms, as well as her preexisting medical conditions.

According to Shain, on January 9, 2014, while "spotting" a student for a

gymnastics program, the student hit her in the head, knocking her to the ground.

Although she did not lose consciousness, she attempted to see the school nurse,


                                                                         A-1488-17T4
                                       4
but was unable to do so due to other emergencies and a variety of other reasons.

Ultimately, she went to the emergency room where she was treated and released

with a broken nose and a stiff neck.

      Thereafter, Shain was evaluated by several doctors through her employer's

workers' compensation provider, including a cognitive evaluation performed by

Dr. Brett Prince, Ph.D., a psychologist, and a subsequent evaluation performed

by Dr. Richard Filippone, Ph.D., a neuropsychologist. Shain was repeatedly

directed to return to work despite reporting cognitive impairments resulting

from the incident that primarily manifested themselves in difficulty

concentrating and remembering. For example, on more than one occasion, Shain

inadvertently left students in the hallway or on the playground .

      According to Shain, by September 2014, her condition worsened.

Specifically, she was transposing numbers and letters, writing things backwards,

going to the wrong building for meetings, inverting the order of her lesson plans,

and having difficulty preparing and maintaining electronic school records. She

also had difficulty driving, turning her head from side to side , and adjusting to

daylight savings time, which resulted in her missing classes or arriving late. At

home, she put her cell phone in the freezer, her husband's shoe in the

refrigerator, and her keys in the pantry. On one occasion, while babysitting, she


                                                                          A-1488-17T4
                                        5
caused her granddaughter to fall out of the car because she forgot her

granddaughter was in the car.

       Shain acknowledged that "[s]ince her thirties," "every three[ to] four

months" she had experienced "short stabbing pain . . . throughout [her] body[,]"

that sometimes "went to [her] head." The pain lasted "one to two second[s]" and

then "would go away." However, since the incident, "the head pain" became

"headaches" that would only "subside" with "a migraine pill" and would last

anywhere from "a half hour" to "three days or more."

       Additionally, prior to the incident, based on MRIs,1 several doctors had

detected "brain lesions." As a result, Shain had been under the care of Dr. Boris

Furman, a neurologist, and was also seen by Dr. Stuart Cook, a multiple sclerosis

(MS) specialist. However, both Drs. Cook and Furman ruled out MS. Shain's

past medical history also included longstanding hearing loss, chronic tinnitus,

and rheumatoid arthritis.

       In December 2014, Shain began treating with Dr. Sica and continued until

August 2015. Dr. Sica provided Shain with "[n]europsychological [c]are or

[n]europsychological [r]ehabilitation" to "help [her] obtain a better perspective,

. . . better control, [and] a . . . more efficient means of dealing with the deficits


1
    Magnetic Resonance Imaging.
                                                                             A-1488-17T4
                                         6
in [her] daily functioning." Although Dr. Sica acknowledged that Shain was

better after treatment than before, nevertheless, he opined that Shain was not

capable of performing her duties as a teacher "[b]ecause of the cognitive deficits

she incurred" as a result of the incident and the resulting physical, psychological,

and behavioral changes. While Dr. Sica did not actually diagnose Shain's head

injury, he "validated" the diagnosis of the other doctors who had examined her

before she started treatment, and confirmed that Shain's cognitive complaints

were caused by the trauma of the incident.

      Dr. Sica explained that Shain had "[p]ost [c]oncussion [s]yndrome,"

which manifested itself in "physical complaints," "psychological or behavioral

changes[,]" and "neurocognitive or thinking changes." According to Dr. Sica,

"[t]he assembly of physical, psychological[,] and cognitive" symptoms

"constitute[] what[] [was] called a [c]oncussion or mild traumatic brain injury"

and the prolonged duration of symptoms constituted "what[] [was] called a

[p]ost [c]oncussion [s]yndrome." Although Dr. Sica acknowledged that he

relied on Shain's subjective complaints, he testified that those complaints were

supported by "objective measures" derived from his examination, which

"produce[d] a set of scores" documenting her poor performance "on a variety of

sub[-]tests that [made] up the battery."


                                                                            A-1488-17T4
                                           7
      Dr. Sica also reviewed Shain's "IQ tests" administered after the incident,

and opined that Shain's reported diminution in intelligence quotient was caused

by the incident because otherwise, it was "unlikely" she would have been able

to get a job as a teacher or obtain a Master's Degree.          While Dr. Sica

acknowledged that age and brain lesions could cause cognitive complaints, he

rejected them as the cause of Shain's complaints because Shain was functioning

fine beforehand and "was essentially asymptomatic."

      Dr. Lomazow performed an independent medical evaluation (IME) on

Shain on January 2, 2015. Contrary to Dr. Sica, Dr. Lomazow concluded that

Shain was not "totally and permanently disabled . . . as a consequence of the

injury," and any symptomology did not result from the incident. The ALJ

described Dr. Lomazow's physical examination of Shain as follows:

            [A] cranial nerve examination . . . revealed pupils
            equal, round, and reactive. Extraocular movements,
            including those enervated by the third, fourth, and sixth
            cranial nerves, were all full without evidence of
            disconjugate gaze or nystagmus. Facial sensation and
            muscles enervated by the fifth cranial nerves were
            intact. There was no evidence of any facial asymmetry,
            or peripheral or central seventh nerve dysfunction.
            Ninth cranial nerve (the gag reflex) was intact. Tenth
            cranial nerve (the gag reflex) was intact. There was no
            evidence of any sternocleidomastoid or upper trapezial
            weakness directly relating to injury to the eleventh
            cranial nerve. The tongue protruded in the mid-line,
            and there was no evidence of any atrophy. Motor

                                                                        A-1488-17T4
                                       8
             examination revealed no evidence of any specific loss
             of bulk, tone, or strength. Sensory examination
             revealed no evidence of loss of sensory function with
             respect to light touch, temperature, vibratory sense, pin,
             or proprioception. Gait examination also revealed no
             evidence of retropulsion or propulsion.

      Likewise, Dr. Lomazow's mental examination of Shain revealed "no

significant gross deficits in short-term memory, long-term memory, or

intermediate memory." Additionally, "[t]here was no evidence of aphasia, word

finding difficulties, paraphasic errors, or apraxia." Dr. Lomazow deferred his

findings until he had reviewed Dr. Filippone's cognitive report, which concluded

that "Shain suffer[ed] from a combination of a pain-related cognitive disorder

and a potential post[-]concussive disorder" directly related to the injury, but was

"certainly capable of working . . . full-time." While Dr. Filippone recommended

further evaluation and treatment, he noted "[h]er days off from work [were]

based primarily on physical pain-related issues and not psychological issues."

Further, according to Dr. Lomazow, "[t]he only pain . . . referred to [by Dr.

Filippone] was headaches of an explosive nature," which were "present prior to

the incident" with a possible "exacerbation of such headaches as a consequence

of th[e] injury."

      Based on his review of Dr. Filippone's report, his review of Shain's

medical history, and his examination, Dr. Lomazow opined that the incident was

                                                                           A-1488-17T4
                                         9
not the sole and proximate cause of Shain's disability, but appeared to be "an

exacerbation" of preexisting migraine headaches and some soft cognitive

findings, which were not totally and permanently disabling. While he agreed

that Shain's current symptoms were consistent with a post-concussion syndrome,

Dr. Lomazow also acknowledged that brain lesions could cause cognitive issues

"in some cases." Dr. Lomazow also explained that if Shain would "benefit[]

from further evaluation and treatment[,]" as noted in Dr. Filippone's report,

"then by definition, [she was] not totally and permanently disabled."

      On September 7, 2017, the ALJ rendered an initial decision upholding the

Board. In assessing the credibility of the witnesses, the ALJ found that Shain

"appeared to be a credible witness" but "embellished many of her complaints."

Although Shain's "testimony was consistent with that of her expert," the ALJ

posited that the "case turn[ed] on the credibility of the medical experts." In that

regard, the ALJ noted that while "[b]oth medical experts proved to be credible,

competent witnesses[,]" Dr. Lomazow "presented a more logical and persuasive

opinion as to the issue of permanent and total disability and [Shain's] ability to

perform the functions and duties of her job as a teacher."

      Acknowledging the "general rule [that] . . . 'greater weight should be

accorded to the testimony of the treating physician' as opposed to an evaluating


                                                                           A-1488-17T4
                                       10
physician, who has only met with the employee on one occasion[,]" see Bialko

v. H. Baker Milk Co., 38 N.J. Super. 169, 171-72 (App. Div. 1955), the ALJ

explained that "this guidepost [was] not unwaivable" and noted that other factors

to consider in exposing "weaknesses" in expert testimony included whether the

expert's "conclusions [were] based largely on the subjective complaints of the

patient or on a cursory examination," or were "support[ed] in the records from

other physicians[.]" See Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77,

86 (App. Div. 1961).

      In analyzing the expert testimony in the case, the ALJ reasoned:

                  Dr. Sica is one of [Shain's] treating physicians
            and will be extended the same consideration generally
            afforded such professionals.        Although Dr. Sica
            presented credible and sincere testimony regarding his
            examination of [Shain], he candidly acknowledged that
            his opinion was influenced by [Shain's] subjective
            complaints. Also, Dr. Sica stated that Shain "will not
            recover as quickly as a younger person."              His
            recommendation was therapy to deal with her cognitive
            deficiencies. She could not perform her duties as [a]
            teacher due to mild traumatic brain injury due to the
            physical, psychological[,] and behavioral changes.
            Conversely, Dr. Lomazow, a Board-Certified
            Neurologist, made objective findings, which when
            compared to the demands of [Shain's] duties did not
            lead to a conclusion that [Shain] could not perform her
            job duties[,] and deficiencies were certainly not directly
            caused by the accident.



                                                                         A-1488-17T4
                                       11
                  Considering the foregoing, I found Dr. Sica's
            conclusions and the reasoning underlying those
            conclusions to be overborne by those offered by Dr.
            Lomazow. On balance, Dr. Lomazow offered a more
            logical explanation in evaluating [Shain's] neurologic
            condition, and I afford greater weight to his opinions
            regarding the nature and permanency of those
            conditions.

                   ....

                  I [find] that Dr. Lomazow's testimony presents a
            more compelling case against permanent and total
            disability and direct cause than Dr. Sica does for a
            finding of disability. Significantly noteworthy was Dr.
            Lomazow's explanation of the need to tie observations
            contained in objective testing to actual clinical findings
            which he did not perceive upon examination. His
            opinion that the brain lesions were the likely source of
            Shain's complaint[s] simply renders a more credible
            and believable opinion.

      Relying on Gerba v. Board of Trustees, Public Employees' Retirement

System, 83 N.J. 174, 187 (1980), and Petrucelli v. Board of Trustees, Public

Employees' Retirement System, 211 N.J. Super. 280 (App. Div. 1986), the ALJ

acknowledged that "[w]here an employee 'is afflicted with an underlying

physical disease bearing causally upon the resulting disability[,] . . . the

traumatic event need not be the sole or exclusive cause of the disability'" "[a]s

long as the traumatic event is the . . . essential significant or substantial

contributing cause of the disability, . . . even though it acts in combination with


                                                                           A-1488-17T4
                                       12
an underlying physical disease." However, based on Dr. Lomazow's "more

compelling case against permanent and total disability and direct cause," as well

as the report from Dr. Filippone, "coupled with the concerns . . . regarding the

exaggerated nature of Shain's testimony," the ALJ concluded that:

            [Shain] ha[d] not proven by a preponderance of the
            credible evidence that she [was] permanently and
            totally disabled from her regular and assigned duties as
            a teacher, and that she [was] physically incapacitated
            from performing her usual or any other duty that her
            employer [was] willing to offer. . . . [L]ikewise[,] . . .
            [Shain] ha[d] not proven by a preponderance of the
            credible evidence that her disability occurred as a direct
            result of a traumatic event, and the work accident was
            not the essential significant or substantial contributing
            cause of [Shain's] disability.

Accordingly, the ALJ affirmed the Board's denial of accidental disability on the

basis of permanent injury and direct cause.           After considering Shain's

exceptions, the Board adopted the ALJ's decision and this appeal followed.

      On appeal, Shain contends the ALJ made findings "which amounted to

plain error[,]" including concluding that "brain lesions were the source of

Shain's complaints[,]" relying on "Dr. Lomazow's gross neurological testing"

and "assessment of Shain's disability," discounting "Dr. Sica's opinion" when he

was her treating physician, and relying on Dr. Filippone's opinion, which was

made prior to Shain completing treatment. We disagree.


                                                                         A-1488-17T4
                                       13
      "Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts

presume the validity of the "administrative agency's exercise of its statutorily

delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For

those reasons, "an appellate court ordinarily should not disturb an administrative

agency's determinations or findings unless there is a clear showing that (1) the

agency did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence." In

re Application of Virtua-West Jersey Hosp. for a Certificate of Need, 194 N.J.

413, 422 (2008). "The burden of demonstrating that the agency's action was

arbitrary, capricious[,] or unreasonable rests upon the [party] challenging the

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

2006).

      "Where . . . the [agency's] determination is founded upon sufficient

credible evidence seen from the totality of the record and on that record findings

have been made and conclusions reached involving agency expertise, the agency

decision should be sustained." Gerba, 83 N.J. at 189. "[T]he test is not whether

an appellate court would come to the same conclusion if the original

determination was its to make, but rather whether the factfinder could


                                                                          A-1488-17T4
                                       14
reasonably so conclude upon the proofs." Brady v. Bd. of Review, 152 N.J. 197,

210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App.

Div. 1985)).     That said, appellate courts review de novo an agency's

interpretation of a statute or case law. Russo, 206 N.J. at 27.

      Applying these principles, we are satisfied the medical testimony and

records support the ALJ's decision and the Board's adoption of that decision.

Because the Board's determination was amply supported by credible evidence,

and was neither arbitrary, capricious, nor unreasonable, we discern no basis to

intervene. The crux of Shain's challenge is that the ALJ erred in his assessment

of the credibility of the experts, and thus erred in concluding she failed to meet

her burden of proof. An individual seeking accidental disability retirement

benefits must prove a disabling permanent injury, and must produce "such expert

evidence as is required to sustain that burden." Patterson v. Bd. of Trs., State

Police Ret. Sys., 194 N.J. 29, 51 (2008). We give "due regard to the opportunity

of the one who heard the witnesses to judge . . . their credibility[,]" In re Taylor,

158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599

(1965)), and defer to credibility findings "that are often influenced by matters

such as observations of the character and demeanor of witnesses and common




                                                                             A-1488-17T4
                                        15
human experience that are not transmitted by the record." State v. Locurto, 157

N.J. 463, 474 (1999).

      In particular, the weight the factfinder accords to expert testimony "is

within the competence of the fact[finder]." LaBracio Family P'ship v. 1239

Roosevelt Ave., Inc., 340 N.J. Super. 155, 165 (App. Div. 2001). The factfinder

is not obligated to accept an expert's opinion, even if the expert was

"impressive[,]" State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div. 1993),

and may accept some of the expert's testimony and reject the rest, Todd v.

Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993), even if that testimony is

unrebutted by any other evidence. Johnson v. Am. Homestead Mortg. Corp.,

306 N.J. Super. 429, 438 (App. Div. 1997). In essence, the factfinder, must use

its "common sense and ordinary experience[,]" In re Yaccarino, 117 N.J. 175,

196 (1989), particularly "when, as here, the factfinder is confronted with directly

divergent opinions expressed by the experts." State v. M.J.K., 369 N.J. Super.

532, 549 (App. Div. 2004).

      "[T]he choice of accepting or rejecting the testimony of witnesses rests

with the administrative agency, and where such choice is reasonably made, it is

conclusive on appeal." Renan Realty Corp. v. State, Dep't of Cmty. Affairs,

Bureau of Hous. Inspection, 182 N.J. Super 415, 421 (App. Div. 1981). Here,


                                                                           A-1488-17T4
                                       16
according the appropriate deference to the ALJ's credibility determinations,

there is substantial evidence in the record to support the ALJ's factual findings

and legal conclusions, which the Board adopted. "We rely upon the expertise

of the [Board] to separate legitimate from illegitimate claims," Patterson, 194

N.J. at 51, and we are satisfied that the Board's "determination [here] is founded

upon sufficient credible evidence seen from the totality of the record." Gerba,

83 N.J. at 189. See R. 2:11-3(e)(1)(D).

      To the extent we have not addressed a particular argument, it is because

either our disposition makes it unnecessary or the argument was without

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

      Affirmed.




                                                                          A-1488-17T4
                                       17
