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 

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 

NOT FOR PUBLICATION WITHOUT THE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.

July 27, 2018
2 A-2966-16T1

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. 
3 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'". 
4 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 
5 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 
6 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)). 
7 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.]
8 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, 
9 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, 
10 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. 43:16A11.2.