                                NOT FOR PUBLICATION WITHOUT THE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-3036-17T3

KATHLEEN STARLING,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
TEACHERS' PENSION
AND ANNUITY FUND,1

     Respondent-Respondent.
____________________________

                    Submitted May 2, 2019 – Decided May 16, 2019

                    Before Judges Simonelli and Whipple.

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

                    Kathleen Starling, appellant pro se.

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


1
  Improperly pled as New Jersey Department of the Treasury, Division of
Pension and Benefits.
            General, of counsel; Robert E. Kelly, Deputy Attorney
            General, on the brief).

PER CURIAM

      Appellant Kathleen Starling is a former teacher with the City of Linden

Board of Education (Linden) who was involuntarily retired and received

involuntary ordinary disability retirement benefits from the Teacher's Pension

and Annuity Fund (TPAF). Starling appeals from the February 2, 2018 final

agency decision of respondent Board of Trustees of the TPAF (Board) adopting

the initial decision of an Administrative Law Judge (ALJ) affirming the Board's

June 2, 2016 decision that Starling remained totally and permanently disabled

from performing the regular and assigned duties as a teacher. We affirm.

      The underlying facts are set forth in our prior opinion in Starling v. TPAF,

No. A-0450-07 (App. Div. Mar. 18, 2009) (slip op. at 2-5), affirming Starling's

involuntary retirement based on a psychiatric disability. In that appeal, we noted

that the ALJ credited the undisputed testimony of Robert Latimer, M.D., a

psychiatrist, who testified that although having been diagnosed Bipolar

Disorder, Starling's symptoms were more consistent with a more serious

condition known as Schizo-Affective Disorder, a variation of Schizophrenia in

which the prominent symptoms are changes in mood and behavior, rather than

delusions and hallucinations. Id. at 4. From his review of the record, Latimer

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                                        2
opined that Starling suffered from this condition for a substantial period of time,

and had a mixture of moods and psychotic symptoms, which diminished her

functional capacity, and constricted her interests, including her social life. Ibid.

Latimer opined that Starling suffered from a substantial psychiatric disorder ,

which remained mostly untreated, and that she could not be relied on to obtain

treatment because she lacked insight. Ibid. He was concerned that Starling

worked with children and could not function and run the teaching job smoothly

and contribute to the smooth running of a school. Id. at 4-5. He concluded

within a reasonable degree of psychiatric certainty that Starling was totally and

permanently impaired to discharge the duties of a teacher.          Id. at 5.    We

commented that "[t]he credible evidence in the record confirms that [Starling]

suffers from a serious psychiatric disorder rendering her totally and permanently

unable to perform her regular and assigned duties as a teacher." Id. at 7.

      Starling subsequently received a doctorate degree in education in 2011

from Capella University, an online university. In 2012, Starling returned to

working in education. From May 2012 until May 2013, she was a part-time

instructor for an ALOHA Mind Math franchise teaching math on an abacus.

From 2013 until 2015, she was a substitute teacher for the Plainfield Board of

Education. Between March 2015 and June 2015, she was a supplemental teacher


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                                         3
in a Catholic high school. From August 2015 until December 2015, she was a

resource teacher coordinator at a charter school in Newark, but the

administration terminated her when it learned she had been retired involuntarily

and was not eligible to work in New Jersey public schools.

      In 2016, Starling wrote to the Division of Pensions and Benefits

requesting to terminate her involuntary retirement and return to active

employment in the TPAF pension system. She submitted the report of Marina

Galea, M.D., a psychiatrist. The report, which amounted to little more than the

doctor's notes, stated that, "[b]ased on today's interview and current [m]ental

[s]tatus [e]xam (if patient was truthful in her account of events) patient does not

currently display any signs or symptoms of Bipolar Disorder or other psychiatric

illness." Galea qualified her report by noting she had not reviewed Starling's

past psychiatric records. Galea refused to treat Starling further, as Starling did

not provide medical or court records, and would not write Starling a letter

recommending her return to work. Galea did not testify at the hearing before

the ALJ.

      Starling obtained a second opinion from Brendan McCollum, M.D., a

psychiatrist. Based only on Starling's self-reporting, McCollum determined she

remained stable in the community and did not display or endorse psychiatric


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                                        4
symptoms and was fit to return to work. McCollum opined that Starling was not

a threat of danger to herself of others and did not suffer any impairment in her

current mental status or functioning. He wrote Starling a prescription to return

to work, stating she was currently under his care and clear to return to work from

a psychiatric standpoint.

      Daniel B. LoPreto, Ph.D. conducted an independent psychological

examination of Starling for the Board and issued a comprehensive report.

LoPreto interviewed Starling, administered the Personality Assessment

Inventory (PAI) test, and reviewed numerous documents, including Starling's

school and pension records, medical records and evaluations, court decisions,

and the job description for a teacher. He stated that while he believed Starling's

Bipolar Disorder was in remission, her recent educational work experience was

not commensurate with the responsibilities of a teacher and she would likely

decompensate if returned to her former position. He stated that the concerns

present in 2006 had been unmitigated, namely Starling's lack of insight and her

inability to understand her need for medication and other treatments, as well as

her significant denial and minimization of            the risk of medication

discontinuation. LoPreto ultimately concluded that Starling continued to be

totally and permanently disabled from performing the normal duties of a teacher.


                                                                          A-3036-17T3
                                        5
      On June 21, 2016, the Board advised Starling that it denied her request to

terminate her involuntary retirement and return her to work in the TPAF system

based on LoPreto's examination and report.       Starling appealed the Board's

decision. The Board transmitted the matter to the Office of Administrative Law

(OAL) for a hearing as a contested case.

      Starling testified that she did not believe she needed medication or

treatment. She blamed her involuntary retirement on the animus of certain

teachers and called two Linden teachers to establish that fact; however, the

witnesses provided no corroborating testimony.

      McCollum testified as a fact witness for Starling.      Based solely on

Starling's self-reporting and two, twenty-minute interviews with her, McCollum

concluded she was in remission or in stable mental health and was fit to return

to work.

      LoPreto testified as an expert for the Board. He noted that Latimer's

testimony in the prior OAL matter supported his opinion that Starling suffers

from chronic psychosis. He testified that Starling's chronic psychosis remained

untreated because of her lack of insight, denial, and minimization. He also

testified that while Starling's chronic psychosis may have been in remission at

the time, she was likely to decompensate in the future because she refused


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                                       6
medication and treatment. LoPreto testified about the dangers of a person with

Starling's psychiatric condition not taking medication and determined that

Starling's prognosis was poor because of her inability to understand that she

needs medication and other treatments.

      LoPreto explained that Starling's psychological issues are a mix and along

a continuum where she can function successfully in non-stressful, limited

environments, but noted that teaching is not such an environment . He further

explained that Starling's failure to take medication and undergo treatment

prevented the stabilization of her cycling and she would likely find herself

embroiled in another incident.     He concluded to a reasonable degree of

psychological certainty that Starling was totally and permanently disabled from

performing the normal duties of a teacher and that if she returned to the

classroom, "she would not survive long."

      The ALJ relied primarily on LoPreto's undisputed expert's report and

testimony in concluding that Starling remained totally and permanently disabled

from the performance of the duties of teacher and any other comparable duty

that Linden was willing to assign her. The ALJ noted that McCollum was not

qualified as an expert witness and provided little support for his opinion . The

ALJ emphasized that even if Starling had offered McCollum as an expert


                                                                        A-3036-17T3
                                         7
witness, the ALJ would have given his testimony less weight because he did not

perform any comprehensive evaluation of Starling, merely saw her twice, relied

on her self-report, and did not review the medical documentation. The ALJ

ordered that Starling remain involuntarily retired from the TPAF and continue

receiving her retirement benefits.

      On appeal, Starling attempts to dispute and re-litigate her involuntary

retirement, which we affirmed on the merits in her prior appeal. If an issue has

been determined on the merits in a prior appeal, it cannot be re-litigated in a

later appeal, even if of constitutional dimension. Washington Commons LLC

v. City of Jersey City, 416 N.J. Super. 555, 564 (App. Div. 2010). Thus, we will

not address Starling's arguments relating to her involuntary retirement.

      The only issue before us is whether the Board's decision to deny Starling's

request to terminate her involuntary retirement and return her to active

employment in the TPAF pension system was arbitrary, capricious, or

unreasonable, or unsupported by substantial credible evidence in the record as a

whole. In re Stallworth, 208 N.J. 182, 194 (2011). Starling bore the burden of

proof in this regard. Bueno v. Bd. of Trs. of the Teacher's Pension & Annuity

Fund, 422 N.J. Super. 227, 234 (App. Div. 2011). She failed to meet her burden.




                                                                           A-3036-17T3
                                       8
        N.J.S.A. 18A:66-40 governs the reinstatement of disabled employees in

the TPAF system, and provides as follows:

              [o]nce each year the retirement system may, and upon
              [the retiree's] application shall, require any disability
              beneficiary who is under the age of [sixty] years [2] to
              undergo medical examination by a physician or
              physicians designated by the system for a period of
              [five] years following his [or her] retirement in order to
              determine whether or not the disability which existed at
              the time he [or she] was retired has vanished or has
              materially diminished . . . .

                    ....

                     . . . If the report of the medical board shall show
              that such beneficiary is able to perform either his [or
              her] former duty or other comparable duty which his [or
              her] former employer is willing to assign to him [or
              her], the beneficiary shall report for duty[] . . . .

              [N.J.S.A. 18A:66-40(a) (emphasis added).]

        The record is devoid of expert medical evidence that Starling's disability,

which existed at the time she was involuntarily retired, "has vanished or has

materially diminished." Ibid. To the contrary, the undisputed expert medical

evidence confirms that Starling continues to suffer from a serious psychiatric

disorder that renders her totally and permanently unable to perform the duties




2
    Starling was fifty-four years old at the time of LoPreto's examination.
                                                                              A-3036-17T3
                                          9
of a teacher. Starling's rambling and inapplicable arguments to the contrary in

her merits brief support this conclusion.

      Affirmed.




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