                                NOT FOR PUBLICATION WITHOUT THE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-5228-17T3

RAYMOND CARLSON,
(Deceased),

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,1

     Respondent-Respondent.
______________________________

                    Submitted May 9, 2019 – Decided May 22, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from the Board of Trustees of the Police and
                    Firemen's Retirement System, Department of the
                    Treasury, PFRS No. 3-10-030802.

                    The Toscano Law Firm, LLC, attorneys for appellant
                    (Patrick P. Toscano, Jr., on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney

1
     Improperly pled as the Division of Pension and Benefits.
            General, of counsel; Danielle P. Schimmel, Deputy
            Attorney General, on the brief).

PER CURIAM

      Raymond Carlson was a firefighter with the City of Summit who retired

on special retirement under N.J.S.A. 43:16A-11.1 and received his monthly

retirement allowance from September 2004 until his death in May 2014.

Carlson's child and widow, appellant Stephanie Carlson, received survivor

special retirement benefits after Carlson's death pursuant to N.J.S.A. 43:16A-

12.1(a). In March 2017, appellant requested that the Board of Trustees (Board)

of the Police and Firemen's Retirement System (PFRS) amend Carlson's pension

status to accidental death benefits under N.J.S.A. 43:16A-10. Appellant appeals

from the Board's July 12, 2018 final agency decision denying her request to

transmit this matter to the Office of Administrative Law (OAL) for a hearing as

a contested case. We affirm.

                                       I.

      We begin with a review of the pertinent authority.      The PFRS Act,

N.J.S.A. 43:16A-1 to -68, and corresponding regulations N.J.A.C. 17:4-6.1 to -

6.18, govern the PFRS.

                               General Provisions

      N.J.S.A. 43:16A-1 contains the following pertinent definitions:

                                                                        A-5228-17T3
                                       2
            (3) "Member" shall mean any . . . fireman included in
            the membership of the retirement system pursuant to
            this amendatory and supplementary act . . . .

                   ....

            (7) "Service" shall mean service as a . . . fireman paid
            for by an employer.

                   ....

            (11) "Annuity" shall mean payments for life derived
            from the aggregate contributions of a member.

            (12) "Pension" shall mean payments for life derived
            from contributions by the employer.

            (13) "Retirement allowance" shall mean the pension
            plus the annuity.

                   ....

            (16) "Retirement" shall mean the termination of the
            member’s active service with a retirement allowance
            granted and paid under the provisions of this act.

            [(Emphasis added).]

N.J.A.C. 17:4-6.7(a)(1) provides that "[a] 'member in service' means that the

member or the employer was making pension contributions to the retirement

system at the time of filing the application for a disability retirement allowance."

      N.J.A.C. 17:4-6.1 governs the retirement application process. N.J.A.C.

17:4-6.1(a) provides that "[a] member's retirement application becomes


                                                                            A-5228-17T3
                                         3
effective on the first of the month following receipt of the application unless a

future date is requested." N.J.A.C. 17:4-6.2 provides that a member's retirement

allowance becomes due and payable "[thirty] days after the date the Board

approved the application for retirement or one month after the date of the

retirement, whichever is later." N.J.A.C. 17:4-6.3(a) provides:

            Except as provided by N.J.A.C. 17:4-6.7, a member
            shall have the right to withdraw, cancel or change an
            application for retirement at any time before the
            member's retirement allowance becomes due and
            payable by sending a written request signed by the
            member. Thereafter, the retirement shall stand as
            approved by the Board.

            [(Emphasis added).]

                              Special Retirement

      N.J.S.A. 43:16A-11.1 governs special retirement.         N.J.S.A. 43:16A-

11.1(a) provides:

            Should a member resign after having established
            [twenty-five] years of creditable service, he may elect
            "special retirement," provided, that such election is
            communicated by such member to the retirement
            system by filing a written application, duly attested,
            stating at what time subsequent to the execution and
            filing thereof he desires to be retired. He shall receive,
            in lieu of the payment provided in [N.J.S.A. 43:16A-
            11], a retirement allowance which shall consist of:

            (1) An annuity which shall be the actuarial equivalent
            of his aggregate contributions, and

                                                                         A-5228-17T3
                                        4
            (2) A pension in the amount which, when added to the
            member’s annuity, will provide (a) for a person who is
            a member on the effective date [June 28, 2011] of [L.]
            2011, [c.] 78, a total retirement allowance of [sixty-five
            percent] of final compensation, plus [one percent] of
            final compensation multiplied by the number of years
            of creditable service over [twenty-five] but not over
            [thirty] or (b) for a person who becomes a member of
            the retirement system after that effective date, a total
            retirement allowance of [sixty percent] of final
            compensation, plus [one percent] of final compensation
            multiplied by the number of years of creditable service
            over [twenty-five] but not over [thirty]; provided,
            however, that any member who has earned, prior to July
            1, 1979, more than [thirty] years of creditable service,
            shall receive an additional [one percent] of his final
            compensation for each year of his creditable service
            over [thirty].

            The [Board] shall retire him at the time specified or at
            such other time within one month after the date so
            specified as the [B]oard finds advisable.

            Upon the receipt of proper proofs of the death of such
            a retired member, there shall be paid to his beneficiary
            an amount equal to one-half of the final compensation
            received by the member.

                     Survivor Special Retirement Benefits

      N.J.S.A. 43:16A-12.1(a) governs survivor special retirement death

benefits:

            Upon the death after retirement of any member of the
            retirement system there shall be paid to the member’s
            widow or widower a pension of [fifty percent] of final
            compensation for the use of herself or himself, to

                                                                         A-5228-17T3
                                        5
            continue during her or his widowhood, plus [fifteen
            percent] of such compensation payable to one surviving
            child or an additional [twenty-five percent] of such
            compensation to two or more children; if there is no
            surviving widow or widower or in case the widow or
            widower dies or remarries,[twenty percent] of final
            compensation will be payable to one surviving child,
            [thirty-five percent] of such compensation to two
            surviving children in equal shares and if there be three
            or more children, [fifty percent] of such compensation
            would be payable to such children in equal shares.

                      Survivor Accidental Death Benefits

      N.J.S.A. 43:16A-10 governs survivor accidental death benefits. N.J.S.A.

43:16A-10(1) provides for payment of survivor accidental death benefits

"[u]pon the death of a member in active service as a result of . . . [a]n accident

met in the actual performance of duty at some definite time and place[.]"

(Emphasis added). N.J.S.A. 43:16A-10(2), (5), and (6) provide greater survivor

death benefits than N.J.S.A. 43:16A-12.1(a).

                             Active Member Status

      N.J.S.A. 43:16A-9(5)(a) addresses when a member is deemed an active

member of the PFRS for eligibility purposes:

            For the purposes of this section and [N.J.S.A. 43:16A-
            10(5)], a member of the [PFRS] shall be deemed to be
            an active member for a period of no more than [ninety-
            three] days while on official leave of absence without
            pay when such leave is due to any reason other than
            illness, and for a period of not more than one year in

                                                                          A-5228-17T3
                                        6
           the event of an official leave (a) due to the member’s
           maternity, or (b) to fulfill a residency requirement for
           an advanced degree, or (c) as a full-time student at an
           institution of higher education, and (1) while he is
           disabled due to sickness or injury arising out of or in
           the course of his employment as a member to whom this
           act applies, is not engaged in any gainful occupation,
           and is receiving or entitled to receive periodic benefits
           (including any commutation of, or substitute for, such
           benefits) for loss of time on account of such disability
           under or by reason of workmen’s compensation law,
           occupational disease law or similar legislation and has
           not retired or terminated his membership; or (2) for a
           period of no more than two years while on official leave
           of absence without pay if satisfactory evidence is
           presented to the retirement system that such leave of
           absence without pay is due to the member’s personal
           illness other than an illness to which (1) above applies.

           [(Emphasis added).]
                                      II.

     We now turn to the facts of this case. Carlson responded to the World

Trade Center on September 11, 2001.          On November 10, 2002, Carlson

submitted an application for special retirement, effective August 1, 2004. On

December 15, 2003, the Board approved Carlson's application, effective August

1, 2004. On September 1, 2004, Carlson began receiving a special retirement

allowance of $4,776.22 per month.         He received 116 monthly retirement

payments through May 1, 2014, totaling $589,633.06.




                                                                       A-5228-17T3
                                      7
      Carlson died on May 6, 2014, from advanced head and neck cancer. On

May 20, 2014, the Division of Pensions and Benefits (Division) notified

appellant that she would receive a survivor special retirement benefit of

$4,005.39 per month for the rest of her life or until she remarried and Carlson's

minor child would receive $1,201.63 per month. See N.J.S.A. 43:16A-12.1(a).

The Division also notified appellant she would receive a group life insurance

benefit of $43,995.96. See N.J.S.A. 43:16A-7(3). In July 2014, appellant and

Carlson's child began receiving their monthly benefits. Appellant also received

the group life insurance benefit.

      On July 24, 2017, approximately thirteen years after Carlson's effective

retirement date, and approximately three years after his death, appellant

requested that the Board amend Carlson's pension status to accidental death

benefits under N.J.S.A. 43:16A-10, claiming Carlson's illness and death may

have been causally related to the time he spent on duty at or near the World

Trade Center.

      The Board referred appellant's request to the Division for administrative

review. On August 11, 2017, the Division denied the request administratively.




                                                                         A-5228-17T3
                                       8
Quoting the language in N.J.A.C. 17:2-6.3(a),2 the Division found Carlson was

approved for a special retirement allowance, effective August 1, 2004; Carlson

began receiving his retirement allowance on September 1, 2004; and appellant

had been receiving her survivor special retirement benefits since May 2014.

The Division forwarded appellant's request to the Board for final agency action.

      On April 19, 2018, the Board denied appellant's request. The Board

reviewed the history of this matter, found N.J.S.A. 43:16A-10 requires that the

death of the PFRS member must occur while in active service, and determined

Carlson was not eligible for accidental death benefits because he was retired and

receiving a special retirement allowance at the time of his death. The Board

advised appellant that she could appeal to the Board within forty-five days, and

the Board would determine whether to grant an administrative hearing b ased on

the standards for a contested case under the Administrative Procedure Act

(APA), N.J.S.A. 52:14B-1 to -15, and corresponding administrative regulations.

The Board also advised:

                  If the granted appeal involves solely a question
            of law, the Board may retain the matter and issue a final
            determination, which shall include detailed findings of
            fact and conclusions of law based upon the documents,

2
  The Division incorrectly cited N.J.A.C. 17:2-6.3(a), which governs the Public
Employees' Retirement System; however, it is clear the Division was referring
to N.J.A.C. 17:4-6.3(a), which governs the PFRS.
                                                                         A-5228-17T3
                                       9
            submissions and legal arguments of the parties. The
            Board's final determination may be appealed to the
            Superior Court, Appellate Division. If the granted
            appeal involves a question of fact, the Board shall
            submit the matter to the [OAL].

      Appellant appealed the Board's decision and requested transmittal of the

matter to the OAL for a hearing as a contested case. Appellant did not assert

there was a factual dispute. Rather, she argued that the Board:

            (1) misinterpreted the relevant statutes governing the
            issues;

            (2) did not consider this was a case of first impression;

            (3) did not fully understand the relevant delayed
            manifestation/eventual ascertainment of the cause of
            death issue;

            (4) did not fully consider the true legislative intent of
            the statutes the Board relied on in denying the requested
            change regarding accidental death benefits; and

            (5) did not fully understand or properly interpret
            voluminous medical records and/or medical opinions
            regarding when the true cause of Carlson's death was
            actually discoverable or conceivable.

      On June 11, 2018, the Board denied appellant's request for transmittal of

the case to the OAL finding "there were no questions of fact in dispute merely

questions of law." In a July 12, 2018 final administrative decision, the Board

found this matter did not entail any disputed questions of facts and the Board


                                                                        A-5228-17T3
                                      10
was able to reach its findings of facts and conclusions of law without the need

for an administrative hearing. The Board recounted the undisputed factual and

procedural history and determined:

            As an active member [] Carlson applied for and was
            granted a [s]pecial retirement. At that point his status
            was no longer an active participant, but [] Carlson was
            a retiree of PFRS. As a matter of law, the Board denied
            [appellant's] request in accordance with [N.J.S.A.
            43:16A-10] which requires that the death of the PFRS
            member must occur while the member is in active
            service. Because [] Carlson was retired and receiving
            [s]pecial retirement benefits he is not eligible for
            [a]ccidental death benefits.

      The Board acknowledged that the term "active service" is not specifically

defined in N.J.S.A. 43:16A-10, but cited the definition of "service" in N.J.S.A.

43:16A-1 that "'[s]ervice' shall mean service as a . . . fireman paid for by an

employer." The Board also noted that N.J.S.A. 43:16A-9(5)(a) provides that a

PFRS member is in active service if he has not retired or terminated his

membership.

      The Board found that the history of N.J.S.A. 43:16A-10 revealed a

legislative intent to narrow the eligibility for accidental death benefits and

require that such benefits be awarded only upon the death of a member who was

in active service. The Board explained:



                                                                        A-5228-17T3
                                      11
                   A review of the history of [N.J.S.A.] 43:16A-10
            indicates that prior to 1967, an accidental death benefit
            was awarded "[u]pon the accidental death of a member
            before retirement." L. 1964, c. 241, §7 (emphasis
            added). Thus, a death benefit was payable so long as
            no retirement application was filed, even if the member
            had left service and was not contributing to the system.
            In 1967, the language of [N.J.S.A.] 43:16A-10 was
            amended to provide the benefit "[u]pon the death of a
            member in active service." L. 1967, c. 250 (Chapter
            250), § 10 (emphasis added). Chapter 250's definition
            of the term "retirement" further indicates . . . the
            Legislature's intent to narrow the eligibility for an
            accidental death benefit. It defined "[r]etirement" as
            "withdrawal from active service with a retirement
            allowance granted under [the PFRS statutes]."

            [(Second, fourth, and sixth alteration in original).]

      The Board also determined that "[b]y the plain language of [N.J.S.A.]

43:16A-10, the Legislature intended that an accidental death benefit only be

available to those members who are in 'active service' at the time of death and

had not yet retired."

                                       III.

      On appeal, appellant does not point to any dispute of material fact. Rather,

she argues she should have been afforded a hearing before the OAL to prove

that "Carlson likely contracted cancer as a direct result of his on the job work

immediately post 9/11 . . . [and] if he did he would have been entitled to seek

[a]ccidental [d]isability [r]etirement, and his surviving widow would have

                                                                          A-5228-17T3
                                       12
undoubtedly been entitled to that substantial related death benefit." 3 (Emphasis

added). However, appellant did not request a change in Carlson's pension status

to accidental disability retirement under N.J.S.A. 43:16A-7, nor did she raise

this issue before the Board. 4 We will not address an issue, such as this, that was

not raised below, is not jurisdictional in nature, and does not substantially

implicate the public interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014).

Thus, the only question is whether the Board should have transmitted this matter

to the OAL for a hearing.

        "The [APA] . . . does not create a substantive right to an administrative

hearing; it merely provides for a procedure to be followed in the event an

administrative hearing is otherwise required by statutory law or constitutional

mandate." Toys "R" Us, Inc. v. Twp of Mount Olive, 300 N.J. Super. 585, 590

(App. Div. 1997). Under the APA, an agency head has the exclusive authority

to determine whether a case is a contested case within the intent of the APA.



3
   Appellant did not address the Board's determination that Carlson was not
eligible for accidental death benefits under N.J.S.A. 43:16A-10 because he was
not in active service at the time of his death and had retired. The issue therefore
is deemed waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2019).
4
    Appellant does not even cite N.J.S.A. 43:16A-7 in her merits brief.
                                                                           A-5228-17T3
                                       13
N.J.S.A. 52:14F-7(a); N.J.A.C. 1:1-4.1; Sloan ex rel. Sloan v. Klagholtz, 342

N.J. Super. 385, 392 (App. Div. 2001). A hearing is only required if the matter

before the agency presents contested material issues of fact. Sloan, 342 N.J.

Super. at 392. (citing N.J.S.A. 52:14B-2(b)). When there are no contested

material issues of fact, the matter is not considered a "contested case." Ibid.

      There was no dispute as to the material facts in this case. Thus, there was

no need for a hearing before the OAL because this was not a contested case. For

a survivor to be entitled to accidental death benefits under N.J.S.A. 43:16A-10,

the PFRS member must have died "in active service as a result of . . . [a]n

accident met in the actual performance of duty at some definite time and place ."

Carlson was not in active service when he died. He retired on special retirement

and terminated his membership in the PFRS years before his death, and he

received his special retirement allowance for nearly ten years. Because Carlson

was not in active service when he died, his pension status could not be amended

to accidental death benefits under N.J.S.A. 43:16A-10. The cause of his death

was not relevant to this issue.

      Affirmed.




                                                                          A-5228-17T3
                                       14
