                                NOT FOR PUBLICATION WITHOUT THE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-5052-16T1

MICHAEL DENHAM,

          Petitioner-Appellant,

v.

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

     Respondent-Respondent.
___________________________

                    Submitted November 15, 2018 – Decided February 1, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from the Board of Trustees of the Police and
                    Firemen's Retirement System, Department of Treasury,
                    PFRS No. 3-88666.

                    Caruso Smith Picini, PC, attorneys for appellant
                    (Timothy R. Smith, of counsel; Steven J. Kaflowitz, on
                    the brief).

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

       Petitioner Michael Denham, a former police officer, appeals from a final

decision of the Board of Trustees of the Police and Firemen's Retirement System

(PFRS),1 adopting the administrative law judge's initial decision on cross-

motions for summary disposition affirming the Board's refusal to file and

process petitioner's application for accidental disability retirement benefits

(ADRB). We determine petitioner was ineligible to apply for ADRB because

he separated from service not for reasons related to his disability, but because

he was terminated for misconduct prior to submitting his application.

       The ALJ determined the following facts pertinent to the summary decision

motions were undisputed. Petitioner applied for ADRB on October 9, 2014

based on job-related injuries he suffered during the arrest of a suspect in April

2009. About three months prior, petitioner had been served with a final notice

of disciplinary action removing him from service effective March 23, 2014

based on his conduct during and after an arrest he made in November 2013. 2 An

ALJ affirmed petitioner's removal in May 2015.


1
    N.J.S.A. 43:16A-1 to -68.
2
  The preliminary notice of disciplinary action which petitioner included in his
appendix was served on April 2, 2014.


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                                        2
        Relying on N.J.S.A. 43:16A-7,3 the ALJ determined the "prohibition of

granting an ADRB" was due to petitioner's removal from service which "made

it impossible for [him] to show that he is physically disabled from the

performance of his job. The reason he is incapable of showing he is physically

disabled from the performance of his job is because he is removed from service,"

a circumstance the ALJ "equate[d] . . . with . . . willful negligence," i.e., a

"[d]eliberate act or deliberate failure to act," N.J.A.C. 17:4-6.5. The ALJ also

concluded that under N.J.S.A. 43:16A-8, which requires a beneficiary receiving

ADRB to return for duty if the beneficiary's disability "vanished or has

materially diminished" to the extent the "beneficiary is able to perform either



3
    N.J.S.A. 43:16A-7(1) provides in pertinent part:

              Upon the written application by a member in service
              . . . any member may be retired on an accidental
              disability retirement allowance; provided, that the
              medical board, after a medical examination of such
              member, shall certify 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 or assigned duties and that
              such disability was not the result of the member’s
              willful negligence and that such member is mentally or
              physically incapacitated for the performance of his
              usual duty and of any other available duty in the
              department which his employer is willing to assign to
              him.
                                                                         A-5052-16T1
                                         3
his [or her] former duty or any other available duty in the department which his

[or her] employer is willing to assign to him [or her]," petitioner could not return

to duty because he was terminated as a result of his intentional misconduct.

      We recognize, generally, final decisions of state administrative agencies

are entitled to considerable deference, and an agency's application of statutes

and regulations "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 deference to the interpretation of the agency charged with

enforcing an act. The agency's interpretation will prevail provided it is not

plainly unreasonable." 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., L.L.C. 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., Div. of

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




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                                         4
      Petitioner urges us to adopt another ALJ's holding that neither N.J.S.A.

43:16A-7 nor any other statute or regulation sanctions the denial of

consideration of an ADRB application when an employee is terminated for

disciplinary reasons. We decline to adopt that analysis. Instead, we follow In

re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386 (App. Div.), certif.

denied, ___ N.J. ___, ___ (2018). Although we there reviewed regulations re-

adopted by the Department of Treasury, Division of Pensions and Benefits in

2016 "address[ing] disability retirement eligibility and related applications," id.

at 396-97, including N.J.A.C. 17:1-6.4 (a rule pertaining to separation from

service and disability retirement eligibility),4 we perpended the statutory

framework pertaining to ADRB in place at the time petitioner submitted his

application.

      In N.J.A.C., we recognized that the retirement systems' enabling statutes,

including those applicable to the PFRS, "make clear that, although a person



4
    The ALJ ruled that "N.J.A.C. 17:1-6.4 should not be applied to prevent the
application for disability benefits." This specific issue was not raised or briefed
on appeal by the parties. We therefore will not consider it. 539 Absecon Blvd.,
L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App. Div.
2009) (noting claims that have not been briefed are deemed abandoned on
appeal); Linek v. Korbeil, 333 N.J. Super. 464, 471 (App. Div. 2000) (declining
to consider a plaintiff's argument because of her "failure to file a notice of appeal
. . . from [the relevant] portion of the trial court's order").
                                                                              A-5052-16T1
                                         5
eligible for benefits is entitled to a liberal interpretation of a pension statute,

'eligibility [itself] is not to be liberally permitted.'" 454 N.J. Super. at 397, 399

(quoting Smith v. Dep't of Treasury, Div. of Pensions & Benefits, 390 N.J.

Super. 209, 213 (App. Div. 2007)). As we did in N.J.A.C., we acknowledge the

plain language of the statute does not require that an applicant for ADRB leave

service due to a disability, id. at 399, and for no other reason, including

termination. But, as we there observed, "[i]t is obvious to us that there is no

such 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.

      "The primary task for the [c]ourt is to 'effectuate the legislative intent in

light of the language used and the objects sought to be achieved.'" Merin, 126

N.J. at 435 (quoting State v. Maguire, 84 N.J. 508, 514 (1980)). "The [c]ourt

fulfills its role by construing a statute in a fashion consistent with the statutory

context in which it appears." Ibid. "The words chosen by the legislature are

deemed to have been chosen for a reason."             Ibid.   Our Supreme Court

"recognized that furtherance of legislative purpose is key to the construction of

any statute." Id. at 436.




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                                         6
      Heeding that prescription, we again recognize the references to an ADRB

applicant's current employer or employment in numerous eligibility statutes

evidence that the Legislature contemplated such an applicant must be employed

at the time an application is submitted to be eligible for benefits. N.J.A.C., 454

N.J. Super. at 399-400. N.J.S.A. 43:16A-7(1) dictates – in the present tense –

that "a member in service" must prove mental or physical incapacity "for the

performance of his [or her] usual duty and of any other available duty in the

department which his [or her] employer is willing to assign to him [or her]." See

N.J.A.C., 454 N.J. Super. at 400. N.J.S.A. 43:16A-1(6) also uses the present

tense to define an employer as a governmental entity "which pays the particular

policeman." Ibid.

      We also agree with the ALJ's prescient determination that, under N.J.S.A.

43:16A-8, a retiree who proves that a disability is rehabilitated is entitled to

return to active service in the same status and position held at the time of

retirement, if that duty is available. See N.J.A.C., 454 N.J. Super. at 400-01

(citing Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist.,

199 N.J. 14, 33-35 (2009) and In re Allen, 262 N.J. Super. 438, 444 (App. Div.

1993)). In light of that rehabilitation statute, which is among a group of similar




                                                                           A-5052-16T1
                                        7
statutes that have been in existence for decades, N.J.A.C., 454 N.J. Super. at

400-02, we reasoned:

              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 – like termination for cause – would have no
              employment or work duty from which to return.

                     The rehabilitation statutes presume that, unlike
              other retirees attempting to return to state service, the
              only obstacle to a disability retiree's reemployment is
              the disability itself. Once the disability abates, the
              disability retirement beneficiary may be entitled to
              reinstatement. See Allen, 262 N.J. Super. at 444
              (interpreting the rehabilitation statutes, and observing
              that, "[t]he Legislature clearly recognized that
              individuals returning from a disability retirement are in
              a unique situation, plainly different from all other
              employees returning to active service . . . [and t]heir
              separation from employment is unlike the voluntary
              separation of other civil servants" (emphasis added)).
              The statutory language expressly 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.

              [Id. at 401-02 (last three alternations in original).]

Petitioner is not in a position to return to work if he proves rehabilitation; he has

no work to return to because he was separated from service for proven

misconduct.

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                                           8
      We also draw the same conclusion as to petitioner's position that we did

as to the New Jersey Education Association's interpretation of the enabling

legislation in N.J.A.C.: it conflicts with the statutory supervisory authority

public officials have over public employees. Id. at 402-03.

            For example, the civil service statutes declare that, "[i]t
            is the public policy of this State to provide public
            officials with appropriate appointment, supervisory and
            other personnel authority to execute properly their
            constitutional and statutory responsibilities." N.J.S.A.
            11A:1-2(b). And "[i]t is the public policy of this State
            to encourage and reward meritorious performance by
            employees in the public service and to retain and
            separate employees on the basis of the adequacy of their
            performance." N.J.S.A. 11A:1-2(c). Public bodies
            obviously have the power to remove employees for
            cause. E.g., . . . N.J.S.A. 40:69A-37(b) (stating that
            local councils have authority to remove any municipal
            officer for cause).

            [Ibid.]

Petitioner's argued theory contravenes the legislative intention to vest public

agencies with decision-making authority over personnel. See id. at 403.

      Petitioner was terminated from his position for cause due to his

misconduct, not a disability.     His application for ADRB, made after his

termination, was an attempt to collect benefits for which he is ineligible.

Common sense informs our decision that there was no reason for the Board to

futilely accept and process the application made after his termination.

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                                        9
      In light of our holding we need not address petitioner's argument in his

second point: the ALJ "wrongly gave as an alternative ground for his ruling that

[petitioner] did not timely submit reports from two medical doctors along with

his disability application." We determine petitioner's remaining arguments are

without sufficient merit to warrant discussion in this written opinion. R. 2:11-

3(e)(1)(E).

      Affirmed.




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                                      10
