SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2368-19

DIANNE MERWIN,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES' 

RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________

Argued June 30, 2021 – Decided March 2, 2022

Before Judges Accurso and DeAlmeida.

On appeal from the Board of Trustees of the Public 

Employees' Retirement System, Department of the 

Treasury, PERS No. xx-7563.

Daniel J. Zirrith argued the cause for appellant (Law 

Offices of Daniel J. Zirrith, LLC, attorneys; Daniel J. 

Zirrith, of counsel and on the briefs; Edward H. 

Kerwin, on the briefs).

Matthew Melton, Deputy Attorney General, argued the 

cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, Assistant 

NOT FOR PUBLICATION WITHOUT THE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.
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Attorney General, of counsel; Matthew Melton, on the 

brief).

The opinion of the court was delivered by 

DeALMEIDA, J.A.D.

Petitioner Dianne Merwin appeals from the January 16, 2020 final 

agency decision of the Board of Trustees (Board) of the Public Employees' 

Retirement System (PERS) denying her application for ordinary disability 

retirement benefits. We affirm.

I.

Merwin was employed by the New Jersey Judiciary as an Administrative 

Supervisor 1, Finance, in Hudson County. On November 4, 2015, as Merwin 

got up from her desk, her pant leg caught on an open drawer, causing her to 

lose her balance, strike her head on a shelf, and fall to the ground. She was 

treated at an emergency room and discharged the following day with 

complaints of hip pain, neck pain, and a headache. She never returned to 

work.

Dr. John E. Robinton conducted a neurological examination of Merwin 

shortly after the fall. He noted that Merwin reported disabling headaches and 

cognitive difficulties. He diagnosed her with a cervical strain and a 

concussion as a result of the fall. The doctor opined that Merwin was unable 
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to work in any capacity, but was hopeful that she would have a full recovery 

and be able to return to work after treatment. In the following months, Merwin 

continued to report that she was experiencing headaches and cognitive 

difficulties. Ultimately, Dr. Robinton opined that Merwin had reached 

maximum medical improvement, although she continued to have constant 

headaches, depression, and anxiety, and had not returned to work.

Around the same time, Dr. George J. Carnevale conducted a 

neuropsychological evaluation of Merwin to determine her level of 

neurocognitive functioning. He diagnosed Merwin with post-concussion 

syndrome and psychological adjustment issues and opined that she was 

capable of "light duty work" under specified conditions.

Merwin subsequently requested accommodations from the Judiciary in 

the form of a light duty assignment, the reassignment of other employees to 

mentor and support her to avoid multi-tasking, and a quiet workplace. The 

Judiciary declined Merwin's proposed accommodations because there were no 

light duty positions available and the other employees at Merwin's workplace 

could not be assigned to watch over her work because they had their own 

duties to complete.
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Merwin subsequently applied to the Board for accidental disability 

retirement benefits. See N.J.S.A. 43:15A-43. She alleged that the fall was a 

traumatic event during and as a result of the performance of her duties that 

caused neurological, orthopedic, and psychological injuries resulting in her 

permanent and total disability from performing the regular duties of her 

position.

The Board denied her application. Although it found Merwin's fall was 

identifiable as to time and place, undesigned and unexpected, and the result of 

her regular and assigned duties, the Board concluded she was not permanently 

and totally physically disabled from performance of her regular job duties. In 

addition, the Board found Merwin was not permanently and totally 

psychologically disabled from performing such duties. Thus, the Board 

concluded Merwin was not entitled to any form of disability retirement 

benefits.

Merwin appealed the Board's decision and the matter was transferred to 

the Office of Administrative Law. At a hearing, Merwin presented the expert 

testimony of Dr. Anca Bereanu, a Board-certified clinical neurologist. Dr. 

Bereanu testified that as a result of the fall, Merwin suffered a closed-head 

trauma with retrograde amnesia, cervical and lumbar strain/contusion, 
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aggravation of cervical degenerative joint disease, degenerative disc disease 

cervical spine with herniated discs, lumbar spine with bulging discs, postconcussive syndrome with residual mild cognitive deficits, headaches, and

moderate reactive depression due to chronic sleep dysregulation. She opined 

that Merwin was unable to work in any capacity as the result of the physical 

injuries she sustained in the fall.

Dr. Bereanu acknowledged that prior to the fall Merwin had clear 

manifestations of anxiety and depression. She opined that those psychological 

conditions were significant contributing factors to her present disability, but 

were not independently sufficient to be disabling or permanently and totally 

disabling.

The Board presented the expert testimony of Dr. Steven Lomazow, an 

expert in neurology. Dr. Lomazow testified that he found no objective 

evidence of Merwin having a permanent and total neurological disability. His 

examinations showed normal neurological functions, including motor function, 

sensory function, coordination, and gait, as well as no significant deficits in 

memory. Dr. Lomazow opined, however, that Merwin had an inability to 

return to work due to psychological conditions that predated the fall and an 

"adjustment disorder" that developed because of the fall. He also opined that 
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the combination of her existing psychological conditions and the psychological 

conditions that arose from the fall rendered Merwin permanently and totally 

psychologically disabled from the performance of her regular duties. He did 

not conduct any neuropsychological tests on Merwin before reaching this 

opinion, which he based only on his review of the opinions of other doctors 

who had examined Merwin as stated in medical records he reviewed.

Administrative Law Judge (ALJ) Elissa Mizzone Testa issued an initial 

decision and recommendation that, although not entitled to accidental 

disability retirement benefits, Merwin was permanently and totally disabled 

from the performance of her job duties. The ALJ, relying on the opinion of 

Dr. Lomazow, which she found to be the most credible offered at the hearing, 

concluded that Merwin suffered post-concussive syndrome, mild cognitive 

deficits, and headaches as a result of her fall. However, she concluded that 

those neurological conditions alone did not render Merwin permanently and 

totally disabled from performing her job duties. As a result, ALJ Testa 

determined that Merwin was not entitled to accidental disability retirement 

benefits because she did not establish that she had a permanent and total 

disability directly caused by a traumatic event at work.
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However, ALJ Testa adopted Dr. Lomazow's opinion that Merwin was 

permanently and totally disabled from performing the duties of her position as 

the result of the combination of her preexisting psychological conditions, 

including depression, anxiety, fibromyalgia, fatigue, and sleeping problems, 

and the psychological injuries resulting from the fall. Thus, the ALJ 

concluded, Merwin established she is entitled to ordinary disability retirement 

benefits, which the ALJ recommended be granted by the Board.

The Board filed exceptions to the ALJ's initial decision and 

recommendations. While the Board agreed with the ALJ's recommendation to 

deny Merwin accidental disability retirement benefits, it argued that she erred 

when she recommended awarding Merwin ordinary disability retirement 

benefits. The Board argued that Dr. Lomazow's opinion regarding Merwin's 

psychological conditions was outside the scope of his expertise and not based 

on his neuropsychological testing or evaluation of Merwin. According to the 

Board, Dr. Lomazow's opinion regarding Merwin's psychological conditions 

was predicated solely on the opinions of other experts expressed in medical 
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records, rendering Dr. Lomazow's opinion on the subject inadmissible and 

unreliable.1

On January 16, 2020, the Board adopted ALJ Testa's finding that 

Merwin was not permanently and totally disabled from the performance of her 

job duties as a result of her fall and her recommendation to deny Merwin's 

application for accidental disability retirement benefits. However, the Board 

rejected the ALJ's finding that Merwin was permanently and totally disabled 

due the combination of her preexisting psychological conditions and the 

psychological conditions that arose because of the fall. As a result, the Board 

rejected the ALJ's recommendation that Merwin be granted ordinary disability 

retirement benefits.

The Board concluded that the testimony of Dr. Lomazow was not 

sufficient to support the ALJ's finding that Merwin had a permanent and total 

disability due to her psychological conditions because he was offered as an 

expert only in the field of neurology and testified that he did not conduct

neuropsychological testing or evaluation of Merwin. In addition, the Board 

noted that the doctor did not offer his opinion to a reasonable degree of 

psychological certainty. While recognizing the relationship between neurology 

1

 Merwin did not file exceptions to the ALJ's recommendation to deny her 

application for accidental disability retirement benefits.
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and psychology, the Board noted they are distinct medical fields and 

concluded that "[t]o accept the testimony of a psychiatric disability" from a 

doctor qualified as an expert only in neurology and who conducted no 

neuropsychological tests on his patient "would be to ignore the distinction 

between the two specialties."

In addition, the Board found that Dr. Lomazow's opinion that Merwin 

had psychological conditions that lead to her permanent and total disability 

was based only on his repetition of the written opinions of other doctors who 

did not testify at the hearing. Thus, the Board concluded that Dr. Lomazow's 

testimony regarding Merwin's psychological conditions was based on hearsay, 

rendering his opinion inadmissible and unreliable.

This appeal followed. Merwin challenges the Board's decision to deny 

her ordinary disability retirement benefits. She argues that the Board erred in 

its rejection of the ALJ's conclusions regarding her permanent and total 

psychological disability and erroneously applied the law when rejecting Dr. 

Lomazow's opinion.

II.

Our review of decisions by administrative agencies is limited, with 

petitioners carrying a substantial burden of persuasion. In re Stallworth, 208 
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N.J. 182, 194 (2011). An agency's determination must be sustained "'unless 

there is a clear showing that it is arbitrary, capricious, or unreasonable, or that 

it lacks fair support in the record.'" Russo v. Bd. of Trs., Police & Firemen's 

Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 

(2007)). "[I]f substantial evidence supports the agency's decision, 'a court may 

not substitute its own judgment for the agency's even though the court might 

have reached a different result . . . .'" In re Carter, 191 N.J. 474, 483 (2007) 

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

While we are not bound by an agency's interpretation of legal issues, 

which we review de novo, Russo, 206 N.J. at 27, "[w]e must give great 

deference to an agency's interpretation and implementation of its rules 

enforcing the statutes for which it is responsible." Piatt v. Bd. of Trs., Police 

& Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015) (quoting St. 

Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 13 (2005)). "Such deference has been 

specifically extended to state agencies that administer pension statutes." Id. at 

99.

We have carefully reviewed the record in light of the relevant legal 

precedents and find ample support for the Board's denial of Merwin's 

application for ordinary disability retirement benefits. A member of PERS is 
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entitled to ordinary disability retirement benefits when the member "is 

physically or mentally incapacitated for the performance of duty and should be 

retired." N.J.S.A. 43:15A-42. "The applicant for ordinary disability 

retirement benefits has the burden to prove that he or she has a disabling 

condition and must produce expert evidence to sustain this burden." Bueno v. 

Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super. 119, 126 

(App. Div. 2008); see also Patterson v. Bd. of Trs., State Police Ret. Sys., 194 

N.J. 29, 50-51 (2008). 

Merwin argues she satisfied her burden because both Dr. Bereanu and 

Dr. Lomazow opined she is permanently and totally disabled from performing 

the regular duties of her positions. While it is true that both experts reached 

that conclusion, they did so on different grounds. Dr. Bereanu opined that 

Merwin's neurological conditions rendered her permanently and totally 

disabled. The ALJ rejected that opinion. She instead found more credible Dr. 

Lomazow's testimony that Merwin's neurological conditions did not cause her 

to be permanently and totally disabled. The ALJ adopted Dr. Lomazow's 

separate opinion that the combination of Merwin's preexisting psychological 

conditions and the psychological conditions that resulted from the fall rendered 
12 A-2368-19

her permanently and totally disabled from her position. It was the credibility 

of this opinion that was before the Board.

There is sufficient support in the record for the Board's determination 

that Dr. Lomazow's opinion regarding Merwin's psychological conditions was 

outside the scope of his expertise as a neurologist. Dr. Lomazow was not 

qualified as an expert in psychology, a distinct scientific discipline. We 

disagree with Merwin's argument that the Board drew too fine a line between 

neurology and psychology and see nothing in the record suggesting that the 

two sciences are interchangeable. An expert in one of those fields is not 

necessarily an expert in the other.

More importantly, Dr. Lomazow conceded that he did not conduct any 

neuropsychological tests or evaluations on Merwin. He, therefore, did not 

base his opinion on his personal observations of Merwin's psychological 

conditions. Dr. Lomazow instead relied on the opinions expressed by other 

medical providers in records of Merwin's past treatment. While those medical 

records may have been admitted as evidence, the expert opinions expressed 

therein were not. Dr. Lomazow provided no explanation of why he believed 

the opinions of these medical providers were credible, how those opinions 

were reached, and what other evidence he relied on to conclude that Merwin 
13 A-2368-19

was permanently and totally disabled due to psychological conditions. Nor did 

he testify that it was common in his field to diagnose psychological conditions 

merely by accepting the opinions of other providers in a patient's medical 

records. See N.J.R.E. 703 (requiring expert opinions to be based on facts or 

data derived from the expert's personal observations, evidence admitted at 

trial, or data of the type normally relied on by experts in the field when 

reaching such opinions); accord Polzo v. Cnty. of Essex, 196 N.J. 569, 583 

(2008).2

We recognize Merwin's argument regarding the remedial nature of the 

pension statutes and her suggestion that those statutes should be read liberally 

to allow eligibility for benefits. However, as we have held, "although a person 

eligible for benefits is entitled to a liberal interpretation of a pension statute, 

'eligibility [itself] is not to be liberally permitted.'" In re Adoption of N.J.A.C. 

17:1-6.4, 17:1-7.5 & 17:1-7.10, 454 N.J. Super. 386, 399 (App. Div. 2018) 

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

Super. 209, 213 (App. Div. 2007)). The Board's decision falls well within the 

2

 We note that the medical records completed by Dr. Carnevale, on which Dr. 

Lomazow relied, suggest that Merwin is not permanently and totally disabled 

by her psychological conditions because Dr. Carnevale determined that she 

could perform "light duty" work.
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discretion accorded to it by statute when interpreting eligibility for ordinary 

disability retirement benefits.

To the extent we have not specifically addressed any of Merwin's 

remaining arguments, we conclude they lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.