                                NOT FOR PUBLICATION WITHOUT THE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-5280-17T1

ELSIE MENDOZA-CARO,

          Petitioner-Appellant,

v.

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

     Respondent-Respondent.
_____________________________

                    Argued October 29, 2019 - Decided January 27, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the Board of Trustees of the Police and
                    Firemen's Retirement System, Department of Treasury,
                    PFRS No. 3-10-48900.

                    George T. Daggett argued the cause for appellant.

                    Porter Ross Strickler, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Donna Sue Arons, Assistant
                    Attorney General, of counsel; Porter Ross Strickler, on
                    the brief).
PER CURIAM

      Plaintiff, Elsie Mendoza-Caro, is a former Jersey City police officer who

appeals from a final agency decision of the Board of Trustees of the Police and

Fireman's Retirement System (Board) denying her application for an accidental

disability pension. The Board's decision is based upon the findings by an

Administrative Law Judge (ALJ) that the migraine headaches plaintiff suffers

are not the result of injuries she sustained as a police officer but rather are a

preexisting condition. In view of the deferential standard of review that applies,

we decline to substitute our own judgment for the judgment of the ALJ and the

Board and affirm the denial of accidental disability pension benefits.

                                        I.

      This case has a long and tortuous history. Plaintiff claims that two injuries

she suffered in the line of duty disabled her, rendering her unable to perform the

duties of a police officer. In 2004, a drug dealer attacked her. He slammed her

headfirst into pavement, causing unconsciousness, a concussion, and a head

laceration that required five staples. In 2007, she was sitting in the backseat of

an unmarked police car when it was struck broadside, causing her head to hit the

window and door of the car, resulting in another concussion. Petitioner contends

that these work-related injuries caused her to suffer migraine headaches,


                                                                           A-5280-17T1
                                        2
requiring her to take medications that cause drowsiness, and thus she cannot

take them while she is performing the duties of an armed police officer.

      Petitioner applied for an accidental disability pension on April 28, 2011.

The Board at first denied her application on March 13, 2012, and plaintiff filed

a timely appeal of that decision. On July 15, 2014, the Board reversed its 2012

decision, finding Petitioner totally and permanently disabled as a result of a pre-

existing condition and awarding her an ordinary disability pension. (Pa52 –

Pa54).

      A year later, on September 23, 2015, the Board determined that petitioner

was no longer permanently and totally disabled.         Consequently, the Board

ordered that she return for duty to her former position with the Jersey City Police

Department.1 This all occurred while appellant's initial administrative appeal

was pending at the Office of Administrative Law (OAL). The Board transmitted

the 2015 determination to the OAL "to proceed with a hearing based upon the

Board's latest action," referring presumably to the 2015 determination that

plaintiff was no longer permanently disabled. From the record, it appears the


1
  We were advised at oral argument that plaintiff continues to receive ordinary
disability pension benefits. The Board asks us to remand this case for the ALJ
to address whether plaintiff is permanently disabled and entitled to an ordinary
disability pension. For reasons explained at the conclusion of this opinion, we
decline to do so.
                                                                           A-5280-17T1
                                        3
OAL never acted upon that transmittal; the evidentiary hearing the ALJ held,

and that is the focus of this appeal, honed in on whether plaintiff is entitled to

an accidental disability pension, not whether she is entitled to an ordinary

disability pension. At the hearing the expert witnesses testified as to whether

he believed plaintiff was permanently and totally disabled, but the majority an d

focus of the testimony concerned accidental disability. See supra note 1.

      The first ALJ assigned to this matter conducted the evidentiary hearing

and heard testimony from plaintiff and several experts on April 24, 2017; April

28, 2017; and May 10, 2017. Before rendering a decision, however, that ALJ

left the OAL. Both parties consented to allow a second ALJ to review the

transcripts of the evidentiary hearing. On May 21, 2018, based on this stipulated

record, the second ALJ issued his opinion denying plaintiff's application for

accidental disability retirement benefits. On June 12, 2018, the Secretary of the

Board informed plaintiff's counsel that the Board had adopted the second ALJ's

factual findings and decision.

                                       II.

      There are two types of disability retirement for police officers: ordinary

disability and accidental disability. N.J.S.A. 43:16A-6; N.J.S.A. 43:16A-7.

Typically, ordinary disability benefits are less generous than accidental


                                                                          A-5280-17T1
                                        4
disability benefits. See Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J.

29, 43 (2008) ("[A]n accidental disability retirement entitles a member to

receive a higher level of benefits than those provided under an ordinary

disability retirement." (citing Richardson v. Bd. of Trs., Police and Firemen's

Ret. Sys., 192 N.J. 189, 194 (2007))).

      Ordinary disability is available to a police officer under 55 years of age

who has four or more years of service and who is permanently mentally or

physically incapacitated and unable to perform his or her duties. N.J.S.A.

43:16A-6(1). There is no requirement that the officer's employment contributed

to the disability. N.J.S.A. 43:16A-6(1)–(4).

      Accidental disability requires a higher standard.       To qualify for an

accidental disability pension, an officer must be (1) 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;" (2) the officer cannot cause

the injury through willful negligence; and (3) the officer must be "mentally or

physically incapacitated for the performance of his usual duty and of any other

available duty."    N.J.S.A. 43:16A-7(a)(1).      Typically, the application for

accidental disability must be filed within five years of the original traumatic




                                                                           A-5280-17T1
                                         5
event, but the Board can consider applications filed outside of this timeline.

Ibid.

        We next consider the standard of review that applies to this appeal. An

appellate court will only reverse a decision of an administrative ag ency if it is

"arbitrary, capricious, or unreasonable, or if it is not supported by substantial

credible evidence in the record as a whole." P.F. v. N.J. Div. of Developmental

Disabilities, 139 N.J. 522, 529–30 (1995). Courts presume agency actions are

valid and reasonable, and the burden is on the plaintiff to overcome these

presumptions. Bergen Pines Cty. Hosp. v. N.J. Dep’t of Human Servs., 96 N.J.

456, 477 (1984).

        Generally,

             courts can intervene only in those rare circumstances in
             which an agency action is clearly inconsistent with its
             statutory mission or other state policy. Although
             sometimes phrased in terms of a search for arbitrary or
             unreasonable action, the judicial role is generally
             restricted to three inquiries: (1) whether the agency's
             action violates express or implied legislative policies,
             that is, did the agency follow the law; (2) whether the
             record contains substantial evidence to support the
             findings on which the agency bases its action; and (3)
             whether, in applying legislative policies to the facts, the
             agency clearly erred in reaching a conclusion that could
             not reasonably have been made on a showing of the
             relevant factors.



                                                                           A-5280-17T1
                                         6
            [In re Musick, 143 N.J. 206, 216 (1996) (citing
            Campbell v. Dep’t of Civil Serv., 39 N.J. 556, 562
            (1963))].

      A reviewing court cannot substitute its own judgment in place of the

agency judgment, even if the court would have reached a different result. In re

Stallworth, 208 N.J. 182, 194 (2011) (citing In re Carter, 191 N.J. 474, 483

(2007)). Rather, when "the Appellate Division is satisfied after its review that

the evidence and the inferences to be drawn therefrom support the agency head's

decision, then it must affirm even if the court feels that it would have reached a

different result itself." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

This is particularly true when reviewing an issue related to an agency's special

"expertise and superior knowledge of a particular field." Stallworth, 208 N.J. at

194–95 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Further, the weight

given 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).

                                       III.

      Applying this standard of review to the matter before us, we conclude that

the final agency decision is supported by substantial credible evidence. The ALJ

made specific findings based on the testimony presented by plaintiff, her expert


                                                                           A-5280-17T1
                                        7
witness, and the State's two expert witnesses and applied those findings to the

statutory criteria for awarding an accidental disability pension. See Richardson,

192 N.J. at 212–13 (analyzing existing statutes and case law on accidental

disability and creating a multi-pronged test).2 Most notably, the ALJ found that

neither the 2004 or 2007 work-related injuries directly caused plaintiff's

disability.

                                          IV.

        We next address the Board's contention that we should remand this case

for the ALJ to address whether plaintiff is entitled to an ordinary disability



2
    Richardson set the test for officers to establish accidental disability:

              1. that [the officer] 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.

              [192 N.J. at 212–13.]
                                                                               A-5280-17T1
                                           8
pension in view of the Board's 2015 decision that plaintiff is no longer

permanently disabled.

      The regulations governing disability pensions provide that "[a]ll disability

retirants may be required to undergo a medical examination each year for at least

five years or for good cause thereafter by a physician designated by the System

as of the anniversary date of their retirement, unless such examination

requirement has been waived by the Board." N.J.A.C. 17:4-6.12(a). "Generally,

for individuals whose disability has vanished or materially diminished, benefits

cease when the retiree refuses to return to duty after the Board has so ordered ."

Cardinale v. Bd. of Trs., Police & Fireman's Ret. Sys., 458 N.J. Super. 260, 263

(App. Div. 2019).

      In this instance, it does not appear the ALJ acknowledged the Board's

2015 determination that plaintiff was no longer disabled. The ALJ did not find

that she was no longer disabled when he determined that plaintiff was not

entitled to an accidental disability pension. Nor did the ALJ explicitly find that

she was disabled, although the ALJ seems to have assumed, without making a

formal finding, that she was entitled to an ordinary disability pension.

      It is not clear to us why the Board's representative did not more clearly

present arguments or evidence to support the Board's 2015 re-determination of


                                                                           A-5280-17T1
                                        9
plaintiff's disability. At the hearing, the Board's representative elicited some

testimony as to whether plaintiff was disabled, but the testimony centered on

accidental disability. It also is not clear why the Board adopted the ALJ's

findings and determination as a final agency decision appealable as of righ t if it

believed that the ALJ had unfinished business to attend to.3 In any event, our

sole task in this appeal is to review the validity of the final agency decision

referenced in the Board's June 12, 2018, letter that explains that the Board voted

to adopt the ALJ's findings of fact and law. In these unusual circumstances, we

do not believe the validity of the Board's 2015 determination is properly before

us in this appeal brought by plaintiff. The Board is free to initiate a new OAL

proceeding or take other appropriate action within its administrative discretion

to address whether plaintiff is no longer permanently disabled and should no

longer be receiving ordinary disability pension benefits.

      Affirmed.



3
   The Board's June 12, 2018, letter to plaintiff's counsel states that the Board
"voted to adopt the Initial Decision of [the] ALJ." (Emphasis added). The letter
also instructs that, "[p]ursuant to the New Jersey Court Rules, you have a period
of 45 days from the date of this notice to file an appeal with the Appellate
Division from this final administrative determination of the Board of Trustees."
(Emphasis added). So far as the record shows, the Board has not filed a cross
appeal. Accordingly, we conclude that any future decision an ALJ may issue in
this matter is not before us on this appeal.
                                                                           A-5280-17T1
                                       10
