SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1488-17T4

BONNIE SHAIN,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

TEACHERS' PENSION 

AND ANNUITY FUND,

Respondent-Respondent.

______________________________

Submitted February 11, 2019 – Decided

Before Judges Gooden Brown and Rose.

On appeal from the Board of Trustees of the Teachers' 

Pension and Annuity Fund, Department of Treasury.

Charles D. Bodner, attorney for appellant.

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; George E. Loeser, Deputy

Attorney General, 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NOT FOR PUBLICATION WITHOUT THE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.

March 22, 2019
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Bonnie Shain appeals from an October 11, 2017 final agency decision of 

the Board of Trustees (Board) of the Teachers' Pension and Annuity Fund

(TPAF). The Board adopted the initial decision of the Administrative Law 

Judge (ALJ), denying her application for accidental disability retirement 

benefits on the ground that she was not totally and permanently disabled. We 

affirm. 

By way of background, a TPAF "member, under [sixty-five] years of age,"

is eligible for an accidental disability retirement pension "if said member is 

permanently and totally disabled as a direct result of a traumatic event occurring 

during and as a result of the performance of his [or her] regular or assigned 

duties[.]" N.J.S.A. 18A:66-39(c). Before considering such an application, a 

physician designated by the Board 

shall have certified to the [B]oard that [the member] is 

physically or mentally incapacitated for the 

performance of duty, and should be retired, and the 

employer shall have certified to the [B]oard that the 

member is permanently and totally disabled as a direct 

result of a traumatic event occurring during and as a 

result of the performance of his regular and assigned 

duties, the time and place where the duty causing the 

disability was performed, that the disability was not the 

result of his willful negligence[,] and that the member 

should be retired.

[Ibid.]
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A-1488-17T4

In Richardson v. Board of Trustees, Police and Firemen's Retirement 

System, 192 N.J. 189 (2007), the Court clarified the meaning of the term 

"traumatic event," and set forth a five-pronged standard mandating that a 

pension system member seeking accidental disability benefits prove:

(1.) that he [or she] 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.

[Id. at 212-13.]

On September 29, 2014, fifty-nine-year-old Bonnie Shain, then a 

seventeen-year veteran physical education teacher, applied for accidental 

disability retirement benefits based on injuries sustained on January 9, 2014, 
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when she was hit in the head while "spotting" a student in gym class (the 

incident). On April 2, 2015, the Board denied Shain's application. "Although 

the Board found that the incident . . . was identifiable as to time and place and 

. . . was undesigned and unexpected, there [was] no evidence in the record of 

direct causation of a total and permanent disability." Thus, the Board concluded 

Shain was "not totally and permanently disabled from the performance of [her] 

regular and assigned job duties[,]" and was "not physically or mentally 

incapacitated from the performance of [her] usual or other duties that [her] 

employer [was] willing to offer." Shain filed an administrative appeal and the 

matter was transmitted to the Office of Administrative Law (OAL) as a contested 

case. See N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13. 

During the ensuing OAL hearing conducted on May 2, 2017, Shain, and 

two experts testified, Robert Sica, Ph.D., a clinical neuropsychologist and 

Shain's treating doctor, and Steven Lomazow, M.D., a Board certified 

neurologist designated by the Board. Shain testified about the incident, her 

injuries and resulting symptoms, as well as her preexisting medical conditions. 

According to Shain, on January 9, 2014, while "spotting" a student for a 

gymnastics program, the student hit her in the head, knocking her to the ground. 

Although she did not lose consciousness, she attempted to see the school nurse,
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A-1488-17T4

but was unable to do so due to other emergencies and a variety of other reasons. 

Ultimately, she went to the emergency room where she was treated and released 

with a broken nose and a stiff neck. 

Thereafter, Shain was evaluated by several doctors through her employer's 

workers' compensation provider, including a cognitive evaluation performed by 

Dr. Brett Prince, Ph.D., a psychologist, and a subsequent evaluation performed 

by Dr. Richard Filippone, Ph.D., a neuropsychologist. Shain was repeatedly 

directed to return to work despite reporting cognitive impairments resulting 

from the incident that primarily manifested themselves in difficulty 

concentrating and remembering. For example, on more than one occasion, Shain

inadvertently left students in the hallway or on the playground. 

According to Shain, by September 2014, her condition worsened. 

Specifically, she was transposing numbers and letters, writing things backwards, 

going to the wrong building for meetings, inverting the order of her lesson plans, 

and having difficulty preparing and maintaining electronic school records. She 

also had difficulty driving, turning her head from side to side, and adjusting to 

daylight savings time, which resulted in her missing classes or arriving late. At 

home, she put her cell phone in the freezer, her husband's shoe in the 

refrigerator, and her keys in the pantry. On one occasion, while babysitting, she 
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caused her granddaughter to fall out of the car because she forgot her 

granddaughter was in the car. 

Shain acknowledged that "[s]ince her thirties," "every three[ to] four 

months" she had experienced "short stabbing pain . . . throughout [her] body[,]"

that sometimes "went to [her] head." The pain lasted "one to two second[s]" and 

then "would go away." However, since the incident, "the head pain" became 

"headaches" that would only "subside" with "a migraine pill" and would last 

anywhere from "a half hour" to "three days or more."

Additionally, prior to the incident, based on MRIs,

1

several doctors had 

detected "brain lesions." As a result, Shain had been under the care of Dr. Boris 

Furman, a neurologist, and was also seen by Dr. Stuart Cook, a multiple sclerosis 

(MS) specialist. However, both Drs. Cook and Furman ruled out MS. Shain's 

past medical history also included longstanding hearing loss, chronic tinnitus, 

and rheumatoid arthritis. 

In December 2014, Shain began treating with Dr. Sica and continued until

August 2015. Dr. Sica provided Shain with "[n]europsychological [c]are or 

[n]europsychological [r]ehabilitation" to "help [her] obtain a better perspective, 

. . . better control, [and] a . . . more efficient means of dealing with the deficits 

 

1

 Magnetic Resonance Imaging.
7

A-1488-17T4

in [her] daily functioning." Although Dr. Sica acknowledged that Shain was 

better after treatment than before, nevertheless, he opined that Shain was not 

capable of performing her duties as a teacher "[b]ecause of the cognitive deficits 

she incurred" as a result of the incident and the resulting physical, psychological,

and behavioral changes. While Dr. Sica did not actually diagnose Shain's head 

injury, he "validated" the diagnosis of the other doctors who had examined her 

before she started treatment, and confirmed that Shain's cognitive complaints 

were caused by the trauma of the incident. 

Dr. Sica explained that Shain had "[p]ost [c]oncussion [s]yndrome,"

which manifested itself in "physical complaints," "psychological or behavioral 

changes[,]" and "neurocognitive or thinking changes." According to Dr. Sica, 

"[t]he assembly of physical, psychological[,] and cognitive" symptoms 

"constitute[] what[] [was] called a [c]oncussion or mild traumatic brain injury"

and the prolonged duration of symptoms constituted "what[] [was] called a 

[p]ost [c]oncussion [s]yndrome." Although Dr. Sica acknowledged that he 

relied on Shain's subjective complaints, he testified that those complaints were 

supported by "objective measures" derived from his examination, which 

"produce[d] a set of scores" documenting her poor performance "on a variety of 

sub[-]tests that [made] up the battery." 
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A-1488-17T4

Dr. Sica also reviewed Shain's "IQ tests" administered after the incident,

and opined that Shain's reported diminution in intelligence quotient was caused 

by the incident because otherwise, it was "unlikely" she would have been able 

to get a job as a teacher or obtain a Master's Degree. While Dr. Sica 

acknowledged that age and brain lesions could cause cognitive complaints, he 

rejected them as the cause of Shain's complaints because Shain was functioning 

fine beforehand and "was essentially asymptomatic."

Dr. Lomazow performed an independent medical evaluation (IME) on 

Shain on January 2, 2015. Contrary to Dr. Sica, Dr. Lomazow concluded that 

Shain was not "totally and permanently disabled . . . as a consequence of the 

injury," and any symptomology did not result from the incident. The ALJ 

described Dr. Lomazow's physical examination of Shain as follows: 

[A] cranial nerve examination . . . revealed pupils 

equal, round, and reactive. Extraocular movements, 

including those enervated by the third, fourth, and sixth 

cranial nerves, were all full without evidence of 

disconjugate gaze or nystagmus. Facial sensation and 

muscles enervated by the fifth cranial nerves were 

intact. There was no evidence of any facial asymmetry, 

or peripheral or central seventh nerve dysfunction. 

Ninth cranial nerve (the gag reflex) was intact. Tenth 

cranial nerve (the gag reflex) was intact. There was no 

evidence of any sternocleidomastoid or upper trapezial 

weakness directly relating to injury to the eleventh 

cranial nerve. The tongue protruded in the mid-line, 

and there was no evidence of any atrophy. Motor 
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A-1488-17T4

examination revealed no evidence of any specific loss 

of bulk, tone, or strength. Sensory examination 

revealed no evidence of loss of sensory function with 

respect to light touch, temperature, vibratory sense, pin, 

or proprioception. Gait examination also revealed no 

evidence of retropulsion or propulsion. 

 

Likewise, Dr. Lomazow's mental examination of Shain revealed "no 

significant gross deficits in short-term memory, long-term memory, or 

intermediate memory." Additionally, "[t]here was no evidence of aphasia, word

finding difficulties, paraphasic errors, or apraxia." Dr. Lomazow deferred his 

findings until he had reviewed Dr. Filippone's cognitive report, which concluded 

that "Shain suffer[ed] from a combination of a pain-related cognitive disorder 

and a potential post[-]concussive disorder" directly related to the injury, but was 

"certainly capable of working . . . full-time." While Dr. Filippone recommended 

further evaluation and treatment, he noted "[h]er days off from work [were] 

based primarily on physical pain-related issues and not psychological issues." 

Further, according to Dr. Lomazow, "[t]he only pain . . . referred to [by Dr. 

Filippone] was headaches of an explosive nature," which were "present prior to 

the incident" with a possible "exacerbation of such headaches as a consequence 

of th[e] injury." 

Based on his review of Dr. Filippone's report, his review of Shain's 

medical history, and his examination, Dr. Lomazow opined that the incident was 
10 A-1488-17T4

not the sole and proximate cause of Shain's disability, but appeared to be "an 

exacerbation" of preexisting migraine headaches and some soft cognitive 

findings, which were not totally and permanently disabling. While he agreed 

that Shain's current symptoms were consistent with a post-concussion syndrome, 

Dr. Lomazow also acknowledged that brain lesions could cause cognitive issues 

"in some cases." Dr. Lomazow also explained that if Shain would "benefit[] 

from further evaluation and treatment[,]" as noted in Dr. Filippone's report, 

"then by definition, [she was] not totally and permanently disabled."

On September 7, 2017, the ALJ rendered an initial decision upholding the 

Board. In assessing the credibility of the witnesses, the ALJ found that Shain 

"appeared to be a credible witness" but "embellished many of her complaints." 

Although Shain's "testimony was consistent with that of her expert," the ALJ 

posited that the "case turn[ed] on the credibility of the medical experts." In that 

regard, the ALJ noted that while "[b]oth medical experts proved to be credible, 

competent witnesses[,]" Dr. Lomazow "presented a more logical and persuasive 

opinion as to the issue of permanent and total disability and [Shain's] ability to 

perform the functions and duties of her job as a teacher." 

Acknowledging the "general rule [that] . . . 'greater weight should be 

accorded to the testimony of the treating physician' as opposed to an evaluating 
11 A-1488-17T4

physician, who has only met with the employee on one occasion[,]" see Bialko 

v. H. Baker Milk Co., 38 N.J. Super. 169, 171-72 (App. Div. 1955), the ALJ 

explained that "this guidepost [was] not unwaivable" and noted that other factors 

to consider in exposing "weaknesses" in expert testimony included whether the 

expert's "conclusions [were] based largely on the subjective complaints of the 

patient or on a cursory examination," or were "support[ed] in the records from 

other physicians[.]" See Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 

86 (App. Div. 1961). 

In analyzing the expert testimony in the case, the ALJ reasoned:

Dr. Sica is one of [Shain's] treating physicians 

and will be extended the same consideration generally 

afforded such professionals. Although Dr. Sica 

presented credible and sincere testimony regarding his 

examination of [Shain], he candidly acknowledged that 

his opinion was influenced by [Shain's] subjective 

complaints. Also, Dr. Sica stated that Shain "will not 

recover as quickly as a younger person." His 

recommendation was therapy to deal with her cognitive 

deficiencies. She could not perform her duties as [a] 

teacher due to mild traumatic brain injury due to the 

physical, psychological[,] and behavioral changes. 

Conversely, Dr. Lomazow, a Board-Certified 

Neurologist, made objective findings, which when 

compared to the demands of [Shain's] duties did not 

lead to a conclusion that [Shain] could not perform her 

job duties[,] and deficiencies were certainly not directly 

caused by the accident.
12 A-1488-17T4

Considering the foregoing, I found Dr. Sica's

conclusions and the reasoning underlying those 

conclusions to be overborne by those offered by Dr. 

Lomazow. On balance, Dr. Lomazow offered a more 

logical explanation in evaluating [Shain's] neurologic 

condition, and I afford greater weight to his opinions 

regarding the nature and permanency of those 

conditions.

. . . .

I [find] that Dr. Lomazow's testimony presents a 

more compelling case against permanent and total 

disability and direct cause than Dr. Sica does for a 

finding of disability. Significantly noteworthy was Dr. 

Lomazow's explanation of the need to tie observations 

contained in objective testing to actual clinical findings 

which he did not perceive upon examination. His 

opinion that the brain lesions were the likely source of 

Shain's complaint[s] simply renders a more credible 

and believable opinion.

Relying on Gerba v. Board of Trustees, Public Employees' Retirement 

System, 83 N.J. 174, 187 (1980), and Petrucelli v. Board of Trustees, Public 

Employees' Retirement System, 211 N.J. Super. 280 (App. Div. 1986), the ALJ 

acknowledged that "[w]here an employee 'is afflicted with an underlying 

physical disease bearing causally upon the resulting disability[,] . . . the 

traumatic event need not be the sole or exclusive cause of the disability'" "[a]s 

long as the traumatic event is the . . . essential significant or substantial 

contributing cause of the disability, . . . even though it acts in combination with 
13 A-1488-17T4

an underlying physical disease." However, based on Dr. Lomazow's "more 

compelling case against permanent and total disability and direct cause," as well 

as the report from Dr. Filippone, "coupled with the concerns . . . regarding the 

exaggerated nature of Shain's testimony," the ALJ concluded that:

[Shain] ha[d] not proven by a preponderance of the 

credible evidence that she [was] permanently and 

totally disabled from her regular and assigned duties as 

a teacher, and that she [was] physically incapacitated 

from performing her usual or any other duty that her 

employer [was] willing to offer. . . . [L]ikewise[,] . . .

[Shain] ha[d] not proven by a preponderance of the 

credible evidence that her disability occurred as a direct 

result of a traumatic event, and the work accident was 

not the essential significant or substantial contributing 

cause of [Shain's] disability.

Accordingly, the ALJ affirmed the Board's denial of accidental disability on the 

basis of permanent injury and direct cause. After considering Shain's 

exceptions, the Board adopted the ALJ's decision and this appeal followed.

On appeal, Shain contends the ALJ made findings "which amounted to 

plain error[,]" including concluding that "brain lesions were the source of 

Shain's complaints[,]" relying on "Dr. Lomazow's gross neurological testing" 

and "assessment of Shain's disability," discounting "Dr. Sica's opinion" when he 

was her treating physician, and relying on Dr. Filippone's opinion, which was

made prior to Shain completing treatment. We disagree.
14 A-1488-17T4

"Our review of administrative agency action is limited." Russo v. Bd. of 

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts 

presume the validity of the "administrative agency's exercise of its statutorily 

delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For 

those reasons, "an appellate court ordinarily should not disturb an administrative 

agency's determinations or findings unless there is a clear showing that (1) the 

agency did not follow the law; (2) the decision was arbitrary, capricious, or 

unreasonable; or (3) the decision was not supported by substantial evidence." In 

re Application of Virtua-West Jersey Hosp. for a Certificate of Need, 194 N.J. 

413, 422 (2008). "The burden of demonstrating that the agency's action was 

arbitrary, capricious[,] or unreasonable rests upon the [party] challenging the 

administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 

2006).

"Where . . . the [agency's] determination is founded upon sufficient 

credible evidence seen from the totality of the record and on that record findings 

have been made and conclusions reached involving agency expertise, the agency 

decision should be sustained." Gerba, 83 N.J. at 189. "[T]he test is not whether 

an appellate court would come to the same conclusion if the original 

determination was its to make, but rather whether the factfinder could 
15 A-1488-17T4

reasonably so conclude upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 

210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. 

Div. 1985)). That said, appellate courts review de novo an agency's 

interpretation of a statute or case law. Russo, 206 N.J. at 27.

Applying these principles, we are satisfied the medical testimony and 

records support the ALJ's decision and the Board's adoption of that decision. 

Because the Board's determination was amply supported by credible evidence, 

and was neither arbitrary, capricious, nor unreasonable, we discern no basis to 

intervene. The crux of Shain's challenge is that the ALJ erred in his assessment 

of the credibility of the experts, and thus erred in concluding she failed to meet 

her burden of proof. An individual seeking accidental disability retirement 

benefits must prove a disabling permanent injury, and must produce "such expert 

evidence as is required to sustain that burden." Patterson v. Bd. of Trs., State 

Police Ret. Sys., 194 N.J. 29, 51 (2008). We give "due regard to the opportunity 

of the one who heard the witnesses to judge . . . their credibility[,]" In re Taylor, 

158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 

(1965)), and defer to credibility findings "that are often influenced by matters 

such as observations of the character and demeanor of witnesses and common 
16 A-1488-17T4

human experience that are not transmitted by the record." State v. Locurto, 157 

N.J. 463, 474 (1999).

In particular, the weight the factfinder accords to expert testimony "is 

within the competence of the fact[finder]." LaBracio Family P'ship v. 1239 

Roosevelt Ave., Inc., 340 N.J. Super. 155, 165 (App. Div. 2001). The factfinder 

is not obligated to accept an expert's opinion, even if the expert was 

"impressive[,]" State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div. 1993), 

and may accept some of the expert's testimony and reject the rest, Todd v. 

Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993), even if that testimony is 

unrebutted by any other evidence. Johnson v. Am. Homestead Mortg. Corp., 

306 N.J. Super. 429, 438 (App. Div. 1997). In essence, the factfinder, must use 

its "common sense and ordinary experience[,]" In re Yaccarino, 117 N.J. 175,

196 (1989), particularly "when, as here, the factfinder is confronted with directly 

divergent opinions expressed by the experts." State v. M.J.K., 369 N.J. Super. 

532, 549 (App. Div. 2004).

"[T]he choice of accepting or rejecting the testimony of witnesses rests 

with the administrative agency, and where such choice is reasonably made, it is 

conclusive on appeal." Renan Realty Corp. v. State, Dep't of Cmty. Affairs, 

Bureau of Hous. Inspection, 182 N.J. Super 415, 421 (App. Div. 1981). Here, 
17 A-1488-17T4

according the appropriate deference to the ALJ's credibility determinations, 

there is substantial evidence in the record to support the ALJ's factual findings 

and legal conclusions, which the Board adopted. "We rely upon the expertise 

of the [Board] to separate legitimate from illegitimate claims," Patterson, 194 

N.J. at 51, and we are satisfied that the Board's "determination [here] is founded 

upon sufficient credible evidence seen from the totality of the record." Gerba, 

83 N.J. at 189. See R. 2:11-3(e)(1)(D). 

To the extent we have not addressed a particular argument, it is because 

either our disposition makes it unnecessary or the argument was without 

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

Affirmed.