                        NOT FOR PUBLICATION WITHOUT THE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-2966-16T1

MICHAEL NOWICKI,

        Petitioner-Appellant,

v.

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

     Respondent-Respondent.
______________________________

              Argued July 16, 2018 – Decided July 27, 2018

              Before Judges Whipple and Suter.

              On appeal from the Board of Trustees of the
              Police and Firemen's Retirement System,
              Department of Treasury, PFRS No. 3-97678.

              John D. Feeley argued the cause for appellant
              (Feeley & LaRocca, LLC, and The Blanco Law
              Firm, LLC, attorneys; Pablo N. Blanco, of
              counsel; John D. Feeley and Pablo N. Blanco
              on the brief).

              Jeffrey   S.   Ignatowitz,   Deputy   Attorney
              General, argued the cause for respondent
              (Gurbir S. Grewal, Attorney General, attorney;
              Melissa D. Schaffer, Assistant Attorney
              General, of counsel; Jeffrey S. Ignatowitz,
              on the brief).

PER CURIAM
       Michael Nowicki appeals from the March 14, 2017 final agency

decision by the Police and Fireman's Retirement System (PFRS)

Board of Trustees (Board) that denied his request to file for an

accidental disability pension.       We affirm the Board's decision.

       Petitioner was employed by the New Jersey Department of

Corrections (DOC) as a corrections officer.            He applied for an

accidental disability pension in May 2015, claiming he injured his

right shoulder and elbow in April 2012 and could no longer function

as a corrections officer.

       Relevant here, the DOC filed two disciplinary actions against

petitioner.      The first Preliminary Notice of Disciplinary Action

(PNDA) on March 6, 2014, charged him with "chronic or excessive

absenteeism."      DOC sustained the charges, issued a Final Notice

of Disciplinary Action (FNDA) on April 14, 2014, and suspended

petitioner for fifteen days.         The case was transferred to the

Office of Administrative Law (OAL) when he requested a hearing.

       The second PNDA was issued on July 2014 based on his arrest

for possession of three oxycodone pills without a prescription in

violation of N.J.S.A. 2C:35-10.5.1          The PNDA charged petitioner

with   conduct    unbecoming   a   public   employee   and   for   the   use,

possession or sale of a controlled dangerous substance.                    The


1
  The Board was notified in February 2016 that these charges were
dismissed.

                                     2                              A-2966-16T1
October 29, 2014 FNDA sustained the charges.                   Petitioner was

removed from his position as a corrections officer on November 1,

2014.     This case was also transferred to the OAL for a hearing.

      On June 10, 2016, petitioner and DOC settled both pending

disciplinary cases. In the settlement, petitioner agreed to accept

a general resignation from employment, effective on November 1,

2014, in lieu of the administrative charges.              He waived any claims

against DOC including back pay, counsel fees or other monetary

relief.    Neither party admitted any liability.            Petitioner agreed

to withdraw both pending appeals.            He agreed to "not to seek

further employment with the Department of Corrections."

      An administrative law judge (ALJ) approved the settlement.

It then was adopted by the Civil Service Commission (CSC) on

September 20, 2016.       Petitioner's application for an accidental

disability retirement pension remained pending.

      In August 2017, the Board notified petitioner that it wanted

to   review   the    settlement    in   connection    with    his   disability

application.        Petitioner    was   permitted    to   provide   additional

information to the Board.          The Board asked DOC whether it was

willing to amend the settlement to permit petitioner to return to

work if his disability diminished, but DOC would not agree to

that, advising "the agreement stands 'as is'".



                                        3                             A-2966-16T1
      The Board considered petitioner's request to file for an

accidental disability pension on January 9, 2017, and denied it

on   January   19,   2017    by   letter.    The    Board   determined   that

petitioner's "reason for leaving was not due to a disabling

condition" but that he had "submitted his resignation in lieu of

termination proceedings."          In addition, because he waived his

right to reinstatement in the future, he was "unable to comply

with N.J.S.A. 43:16A-8(2) because he ha[d] no job to return to

should   the   alleged      disabling   condition   diminish."     Although

petitioner's counsel advised at the Board's January 9, 2017 meeting

that he "did not believe the [s]ettlement [a]greement would affect

his pension," the Board found that "the plain language of the

agreement [was] contrary to the statutory scheme governing a

disability pension."        The Board stated:

           if his application was processed and he was
           granted an [a]ccidental disability pension and
           later it was determined that he was no longer
           disabled, there is no mechanism for the Board
           to stop paying the pension because he could
           never be ordered to return to work, as
           required by N.J.S.A. 43: 16A-8(2). Granting
           a   disability    retirement    under    these
           circumstances would be in contravention of the
           statutory scheme, and place the Board in the
           position of potentially paying a pension for
           which the Board has not ability or mechanism
           to terminate the pension payment.

The Board did not review petitioner's honorable service under

N.J.S.A. 43:1-3 because this would be premature.            The Board noted

                                        4                           A-2966-16T1
that   petitioner      "may   be   eligible   to    file    for    a   [d]eferred

retirement."

       Petitioner appealed and requested a hearing at the OAL.                  The

Board denied the hearing request in February 2017 because "there

[were] no questions of fact in dispute merely questions of law."

The Board advised it would issue a final decision.

       The March 14, 2017 final decision of the Board was consistent

with its January 19, 2017 letter.          It found petitioner "submitted

his resignation in lieu of termination proceedings" and that he

had "waived his right to reinstatement in the future."                 He had "no

job to return to" if his condition diminished and could not

therefore comply with N.J.S.A. 43:16A-8(2).                Although he may be

eligible for a deferred retirement, that issue was not ripe for

consideration.        There were no disputed issues of fact, permitting

the Board to reach a decision without an administrative hearing.

       On   appeal,    petitioner    contends      that    the    Board's    final

decision that it did not process petitioner's application for an

accidental disability retirement pension was arbitrary, capricious

or unreasonable and that the Board did not "turn square corners

in dealing with its member." He argues that even though he settled

the disciplinary cases, he thought his pension application would

be processed.    Also, because the pension statute is remedial, the

statute should be interpreted to grant benefits based on the

                                       5                                 A-2966-16T1
disability until the disability vanishes and then the benefits

should be discontinued.

      The scope of our review in an appeal from a final decision

of an administrative agency is limited.               Russo v. Bd. of Trs., 206

N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)).

The agency's decision should be upheld unless there is a "clear

showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record."                 Ibid.     (quoting Herrmann,

192 N.J. at 27-28).      We generally "afford substantial deference

to an agency's interpretation of a statute that the agency is

charged with enforcing."        Richardson v. Bd. of Trs., 192 N.J. 189,

196   (2007)    (citation      omitted).         "Such        deference   has   been

specifically extended to state agencies that administer pension

statutes,"     because   "'a     state       agency    brings      experience     and

specialized knowledge to its task of administering and regulating

a legislative enactment within its field of expertise.'"                        Piatt

v. Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. Div.

2015) (quoting In re Election Law Enf't Comm'n Advisory Op. No.

01-2008, 201 N.J. 254, 262 (2010)).               We are not "bound by the

agency's interpretation of a statute or its determination of a

strictly legal issue."         Richardson, 192 N.J. at 196 (quoting In

re Taylor, 158 N.J. 644, 658 (1999)).



                                         6                                 A-2966-16T1
     The PFRS provides for both ordinary, N.J.S.A. 43:16A-6, and

accidental, N.J.S.A. 43:16A-7(1), disability benefits.       "[A]n

accidental disability retirement entitles a member to receive a

higher level of benefits than those provided under an ordinary

disability retirement."2   Patterson v. Bd. of Trs., 194 N.J. 29,

43 (2008) (citation omitted).   Once the application is received,


2
  In Richardson, the Court held that a claimant for accidental
disability retirement benefits must prove:

          1. that he 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.

          [Richardson, 192 N.J. at 212-13.]

                                7                        A-2966-16T1
it is referred to the medical board for the appointment of a

physician   to   examine   the   applicant.   That   report   shall    be

considered by the Board with the application.

     A beneficiary under age fifty-five who has been retired on a

disability retirement allowance:

            on his request shall, or upon the request of
            the retirement system may, be given a medical
            examination and he shall submit to any
            examination by a physician or physicians
            designated by the medical board once a year
            for at least a period of five years following
            his retirement in order to determine whether
            or not the disability which existed at the
            time he 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 former duty or
            any other available duty in the department
            which his employer is willing to assign to
            him, the beneficiary shall report for duty;
            such a beneficiary shall not suffer any loss
            of benefits while he awaits his restoration
            to active service. If the beneficiary fails
            to submit to any such medical examination or
            fails to return to duty within 10 days after
            being ordered so to do, or within such further
            time as may be allowed by the board of trustees
            for valid reason, as the case may be, the
            pension shall be discontinued during such
            default.

            [N.J.S.A. 43:16A-8 (emphasis added).]

     Here, the Board's actions were not arbitrary, capricious or

unreasonable.    The Board had no obligation to process petitioner's

application for an accidental disability pension because he did

not retire on the basis of his disability.     Under the settlement,

                                    8                          A-2966-16T1
petitioner voluntarily terminated his employment; there was no

indication that it was related to any disability arising from an

accident that would satisfy Richardson.

      Neither party had the ability to enter into a settlement that

modified   the   statute's       requirement         in   N.J.S.A.     43:16A-8       that

petitioner report to duty if his disabling condition vanished or

materially diminished.           This section mandates that the employer

reinstate a member returned from disability with seniority and

credit for prior service.          See In re Allen, 262 N.J. Super. 438,

444   (App.    Div.   1993)      (providing          that       N.J.S.A.   43:16A-8(2)

contemplates that a "formerly disabled individual [be returned]

as nearly as possible to the status held at the time he or she was

pensioned").     We agree with the Board that because petitioner

resigned without the ability to be reemployed that he could not

satisfy N.J.S.A. 43:16A-8 in the event that his disability improved

to the point that he could work.                "[T]he law does not require the

performance of futile acts."                Stark v. Nat'l Research & Design

Corp., 33 N.J. Super. 315, 322 (App. Div. 1954).

      Petitioner      submitted        no       credible        evidence    that       any

representation     was    made    to   him      that      his    application     for    an

accidental    disability      pension        would     not      be   affected    by    the

settlement.      This is not a case, therefore, where equitable

estoppel applies.        See Sellers v. Bd. of Tr., 399 N.J. Super. 51,

                                            9                                   A-2966-16T1
58 (App. Div. 2008) (citation omitted) (providing that equitable

estoppel applies only "in very compelling circumstances, where the

interest of justice, morality and common fairness dictate that

course.").3

     Affirmed.




3
  The Board has acknowledged that petitioner may be able to obtain
a deferred retirement because he avoided removal for cause related
to his employment by settling the OAL cases. See N.J.S.A. 43:16A-
11.2.

                               10                         A-2966-16T1
