SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 18 MIDALIA MARTINEZ,
Petitioner

- Appellant,

v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIR E MENT SYSTEM, Respondent

- Respondent.

Argued July 13, 2021

– Decided August 3, 2021 Before Judges Hoffman and Currier. On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. x - xxx 062. Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, LLC, attorneys; Samuel M. Gaylord, on the brief). Amy Chung , Deputy Attorney General, argued the cause for respondent ( Andrew J. Br uck , Acting At torney General, attorney; Melissa H. Raksa,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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- 18 Assistant Attorney General, of counsel; Juliana C. DeAngelis , Deputy Attorney General, on the brief).
PER CURIAM Before this court for a second time, we consider petitioner's appeal from the January 10, 2019 or der of the B oard of Trustees, Public Employees '
Retirement S ystem (Board) , denying her application for ordinary disability
retirement benefits (application)

. On remand, the Board complied with our
instructions and address ed our concerns with its first den ial order

. Because we
conclude the Board's decision was supported by the credible evidence and wa s

n either arb i tra r y n or capricious , we affirm. As we set forth the relevant facts in our prior decision, we need not repeat
them extensively here. See Mar tinez v. Bd

. of Trs

. , Pub

. Employees' Ret

. S ys
. , No. A

- 0049

- 17 (App. D iv. S ept. 5, 2018). Petitioner developed a mild head tremor in 2008. She underwent a neurological evaluation in 2010 , following which the doctor "observed a 'very
mild horizontal head tremor' and a ' [ v ] ery minimal tremor of the legs

. . . . ' " Id.

at 1 (alterations in original). In 2013, the same doctor reported "petitioner's head tremor was 'gradually getting worse and she has a lot of anxiety at work as she
is conscious of her tremor.'" Ibid.3 A

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Shortly thereafter, the Board requested an evaluation with Dr. Steven Lomazow, M.D. I n his report, Dr. Lomazow noted " petitioner's tremor 'has been
go i ng on for a number of years'; although she continued to work, petitioner stated 'her tremor is inhibiting her ability to type, file and do other thing s that

are r e quired on her job. ' " Ibid. Dr. Lomazow described petitioner's condition

as " a fine head tremor and a sm all degree of bilateral upper extremity tremor , both postural. " I bi d. He concluded " peti ti oner 'has a mild essential tremor
which ha s not been treated with an adequate clinical trial of medication.' " Ibid.
H e fu r ther " opined that peti tioner 'does not h a v e neurological disea s e which

r i ses to the level of totally and permanently disabled.'" Ibid.
In June 2013, petitioner left her employment and relocated to Florida in August

. On August 21, 2013, the Board denied petit i oner's application , finding she was "not totally and permanently disabled from the performance of [her] regular and assigned duties pursuant to N.J.S.A. 43:15A

- 42 and re l evant case
law." Id. at 2 (alteration in original). A fter petitioner appealed, the Board
transferred t he matter to the Office of Administrative Law for a hearing. In January 2014, petitioner was examined by a neurologist who diagnosed
her with Parkinson's disease. The doctor found petitioner to be "totally disabled"
and unable to work. I bi d.4 A

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Because neither petitioner's treating neurologist nor Dr. Lomazow diagnosed her with Parkinson's disease , Dr. Lomazow r equested a reevaluation of petitioner , in light of the differing diagnosis offered by petitioner's most recent neurologist

. In October 2014, he issued a supplemental report, stating he

" ' still see [ s ] minimal evidence on neurological evaluat i on ' of P arkinson's
disea s e. " I bi d. (alterations in original). Dr. Lomazow reasserted that petitioner was "not totally and permanently di sabled from a neurological standpoint." Following a hearing, the ALJ concluded he could not "'find that in January 2014 petitioner's condition resulted in her inability to perform her job duties, or that the employer did not attempt to accommodate her ne eds.'" Id. at 4

. The ALJ provided his reasons for rejecting petitioner's d o ct o rs' opin ions. However, the ALJ questioned whether the Board used t he correct standard in its initial denial of the application. The Board and Dr. Lomazow stated petitioner was not "totally and permanently disabled." T he ALJ noted N.J.S.A.
43:15A

- 42 required a petitioner to demo n stra te she was " physically or mentally
inca pacitated for the performance of duty." 1

1 We note that , effective June 20, 2016, N.J.A.C. 17:1

- 6.4 now requires all disability retirements to satisfy the "total and permanent disability" standard.5 A

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In July 2017, the B oard issued a final agency decision adopting the ALJ's
initial decision recommending the denial of peti ti oner's application. T he Board
did not address the is s ues raised by the ALJ. A fter an app eal to this court, we
remanded to the Board to consi d er : ( 1) whether it applied the correct standard; ( 2) whether D r. Lomazow addressed that standard ; and ( 3) whether Dr.
Lomazow considered p etitioner's other medical issues.
On January 1 0 , 201 9 , th e Board issued a final agency decision, again denying petit i oner's applica t i o n
. The Board found that petitioner was "not totally and permane n tly disabled f r om performing her regular and assigned duties and therefore is also not physically or mentally inc a p acitated." In the present appeal, petitioner asserts she established she was physically

or m e nta l ly inc a pa c it at ed f r om performing her job duties and therefore she qualified for ordinary disability retirement benefits.
The standard of review applicable to an appeal from a state agency decision is well established. "Judicial review of an agency's final decision is generally limited to a determination of whether the decision is arbitrary, capricious, or unreasonable or lacks fair support in th e record." Caminiti v. Bd.
of Trs ., Police & Firemen's Ret. Sys. , 431 N.J. Super. 1, 14 (App. Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys. , 198 N.J. 215, 223

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24 (2009)). In reviewing an administrative decision, we ordinarily recognize the agency's expertise in its particular field. Ibid

. The party who challenges the validity of the administrative decision bears the burden of showing that i t w a s "arbitra r y , unr easonable or capricious. " B oyle v. Riti , 175 N.J. Super. 158, 166 ( App. D iv. 1980). To qualify for ordinary disability retirement benefits under N.J.S.A.
43:15A

- 42, a member must demonstrate he or she "is physically or mentally incapacitated for the perfo rmance of duty and should be retired." The member must prove he or she has a disabling condition and must pro vide expert evidence
to sustain the burden. Bueno v. B d. o f Trs., T eachers' Pension & A nnuity Fund , 404 N.J. Super. 119 , 126 (App. D iv. 2008). In its order denying the applica tion for a second time, t he B oard addressed
th is court's concerns
. The Board noted initially that the standards "total and permanent disability" and "physically and mentally incapacitated" have been used interchangea bl y by our Supreme Court

. See Pat t erson v. Bd. of Trs, State Police Ret. Sys. , 194 N.J. 29, 42 (2008) (finding th e only meaningful distinct i on between the two stand ard s is that an ordinary disability applicant does not n eed
to show a work connection ). Therefore, the use by the Board and Dr. Lomazow7 A

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of " to t al and permanent disability " satisfied the case law's statutory interpretation. In its decision issued after remand, t he Board also considered the additional grounds outlined by this court

. In her brief, p etitioner did not contest
th e Board's conclusions on any bases other than the Board erred in its applicat ion

o f the proper standard. W e are sat i sf i ed the Board sufficiently fol lowed ou r remand instructions. Its decision was not arbitrary or capricious and is

s upp o rted by the credible evidence in the record

. A ffirmed.