SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2658-18

J.M.F.,

Petitioner-Appellant,

v.

DEPARTMENT OF TREASURY,

DIVISION OF PENSIONS AND

BENEFITS,

Respondent-Respondent.

_____________________________

Submitted September 15, 2021 – Decided September 28, 2021

Before Judges Geiger and Susswein.

On appeal from the Board of Trustees of the Teachers' 

Pension and Annuity Fund, Department of the 

Treasury.

J.M.F., appellant pro se.

Andrew J. Buck, Acting Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Connor V. Martin, 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NOT FOR PUBLICATION WITHOUT THE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.
2

A-2658-18

Appellant J.M.F.,

1

a former teacher, appeals from an October 17, 2018

final decision of respondent Board of Trustees (the Board) of the Teachers' 

Pension and Annuity Fund (TPAF), within the Department of the Treasury, 

Division of Pensions and Benefits, denying her application for accidental 

disability retirement benefits pursuant to N.J.S.A. 18A:66-39(c). She also 

appeals from a January 24, 2019 TPAF final decision denying her request to 

unseal the administrative record. We affirm both decisions. 

We glean the following pertinent facts from the record, some of which are 

not in dispute.

2

 On November 24, 2012, appellant applied for an accidental 

disability retirement effective December 1, 2012. Her last day of work was 

March 26, 2012. In her application, appellant claimed that on September 8, 

2010, as she was looking at books in a crate on the floor in her classroom, a

custodian, who was behind her, lifted a bucket causing a metal mop handle to 

fall out of the bucket and strike the top right side of her head. Appellant claimed 

she experienced "a host of post-concussive symptoms . . . on a daily basis with 

1

 As the court affirms the sealing of the administrative record, we use initials 

for the appellant. We conclude that, under the under the particular set of facts 

and circumstances in this matter, appellant's privacy constitutes a compelling 

interest that outweighs the Judiciary's commitment to transparency. 

2

 A Joint Stipulation of Facts is not part of the record on appeal. 
3

A-2658-18

enough frequency and intensity" to prevent her from performing her job as a 

teacher. She alleged that she needed to stay at home to minimize both her 

suffering and the possibility of being hit again in the head. 

On April 4, 2013, the Board denied appellant's application for accidental 

disability retirement benefits. The Board found that the event that caused 

appellant's reported disability: (a) was "identifiable as to time and place"; (b) 

"undesigned and unexpected"; (c) "occurred during and as a result of 

[appellant's] regular or assigned duties"; and (d) was "not the result of 

[appellant's] willful negligence." The Board concluded appellant was "not 

totally and permanently disabled from the performance of [her] regular and 

assigned job duties" and "not physically or mentally incapacitated from the 

performance of [her] usual or other duties that [her] employer [was] willing to 

offer." The Board further determined that "there is no evidence in the record of 

direct causation of a total and permanent disability." Appellant remained 

eligible to begin collecting monthly ordinary retirement benefits after she 

reached normal retirement age as designated in the pension system. Appellant 

was advised that she could appeal the Board's decision within forty-five days, 

or the decision would be final. 
4

A-2658-18

By letter dated June 18, 2013, and email dated June 26, 2013, appellant

submitted additional medical documentation in support of her application. On 

July 12, 2013, the Board directed that its independent medical examiner (IME), 

neuropsychologist Richard A. Filippone, Ph.D., be provided with the additional 

documentation and requested that he provide an addendum to his January 30, 

2013 report "to determine if the new information alters his opinion." Appellant 

was informed that upon receipt of the addendum and the recommendation of the 

Medical Review Board (MRB), the Board would issue its final determination. 

On October 4, 2013, the Board reconsidered appellant's application after 

considering the new medical documentation she provided, the previous reports,

the IME report addendum, and the recommendations of the MRB. The Board 

reaffirmed its prior decision denying the application. 

On November 13, 2013, appellant appealed the Board's decision, and the 

matter was transferred to the Office of Administrative Law (OAL) for 

determination as a contested case and assigned to an Administrative Law Judge 

(ALJ). The ALJ conducted hearings on August 8, 2017 and December 22, 2017, 

and closed the record on March 29, 2018, following the submission of briefs. 

Appellant was represented by counsel before the ALJ. Three witnesses testified: 

appellant, Dr. Hugo M. Morales, and Dr. Filippone. 
5

A-2658-18

The ALJ issued a comprehensive twenty-three-page initial decision, 

which summarized the testimony of each witness, set forth his factual and 

credibility findings, and applied the applicable law. Because the decision rested 

on whether appellant met her burden of proof given the conflicting testimony, 

we recount the pertinent testimony and the ALJ's findings in some detail. 

Appellant's Testimony 

Appellant began teaching in 2001. On September 8, 2010, while at work, 

she was struck on the top right side of the head by a mop handle. She did not 

lose consciousness. About thirty minutes later, appellant started to get a 

headache. Following a faculty meeting, she went to see the school nurse, who 

referred her to the workers' compensation clinic. Although appellant wanted to 

have testing done, the doctor declined and advised her to go the emergency room 

if the symptoms got worse. The doctor prescribed ibuprofen. 

About ten days later, appellant went to Concentra Medical Center 

complaining her symptoms had worsened. The doctor told her she could not 

have a headache from a blow to the head that long after the accident and said he 

would refer her to a neurologist. When the referral did not materialize, appellant 

saw Dr. Jose Soto Perillo, a psychiatrist, twice in 2011.
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A-2658-18

Appellant had pre-existing conditions. Beginning in 2007, appellant 

began to have problems with allergies that caused sinus headaches, anxiety, and 

a choking sensation. She also experienced depression and anxiety due to a 

disagreement with her supervisor. 

After the accident, appellant continued to work with difficulty but reacted 

to noise at school. She stated she knew something was wrong with her brain 

and that her brain felt "broken." Her own physician sent her for a CT scan and 

MRI, which were both normal. Appellant stated she had crying spells, difficulty 

concentrating, and felt pressure on the top right side of her head that was 

triggered by noise. 

While still working, appellant took leaves as long as three months. 

Appellant frequently experienced nightmares about getting hit in the head after 

the accident. While she had difficulty sleeping prior to the accident, her 

insomnia became more severe. Appellant stated she was unable to perform her 

duties as a teacher or hold any other job. She claimed she felt pressure in her 

head and that she could not stop crying. 

Appellant saw her other psychiatrist, Dr. Morales, and her clinical 

neuropsychologist, Sandra L. Hunt, Ph.D., once or twice a year, either in person,
7

A-2658-18

by Skype, or telephone. She stopped taking all medication with the approval of 

her doctors. 

Appellant continued to work for approximately eighteen months after the 

accident. She claimed she had not driven a car since the accident but is able to 

run errands, cook, and clean. 

Dr. Morales' Testimony

Dr. Morales was accepted as an expert in psychiatry. He began treating 

appellant in March 2012 and she was still under his care as of 2017. Dr. Morales 

opined that appellant's complaints indicated she was suffering from posttraumatic stress disorder (PTSD) and mild traumatic brain injury. He reported 

that Dr. Hunt and Dr. Martinez, a neurologist, agreed with those diagnoses and 

that appellant was unable to work as a teacher. 

Dr. Morales noted that during waking hours, a person with PTSD may be 

hyper vigilant or be hypersensitive to all noise. They may also experience 

nightmares and insomnia. 

Dr. Morales noted that appellant wore a bicycle helmet to his office to 

protect her head. She exhibited serious anxiety about walking near tall buildings

or through a supermarket with tall shelves. He considered these symptoms to 

be characteristic of PTSD. 
8

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In November 2012, Dr. Morales diagnosed appellant with PTSD, major 

depressive disorder, anxiety, and traumatic brain injury and opined these 

conditions resulted from the accident. Appellant was prescribed Silenor for 

insomnia, Wellbutrin for anxiety and depression, and Naproxen for headaches. 

Dr. Morales further opined that the PTSD led to functional disabilities that 

limited appellant's daily activities and caused difficulty with social events and

gatherings, because she was fearful that any movement would aggravate her 

physical condition. He described appellant as lacking concentration and focus, 

unable to finish anything she started, and obsessed with being hit on the head 

again, rendering her unable to function properly on any level. He stated that 

appellant needed a quiet, dark place to rest her brain. He described appellant's 

mental state as being very fragile and dysfunctional, with an inability to control 

her emotions. She appeared anxious, moody, and depressed. 

Appellant was seen by a neuroradiologist, Michael L. Lipton, M.D., who 

interpreted her MRI films. He found structural damage to her brain's white 

matter in the area she was struck. Dr. Lipton reported that most patients with 

mild traumatic brain injury do not experience unconsciousness and recover 

within months. However, a minority have symptoms and dysfunction that 

persist indefinitely. 
9

A-2658-18

Dr. Morales noted that a person can suffer a concussion without 

developing a brain lesion or experiencing loss of consciousness. He rejected Dr. 

Filippone's conclusion that appellant had a histrionic personality and could not 

have PTSD unless she experienced life-threatening trauma. He further opined 

that appellant did not have agoraphobia.3 

On cross-examination, Dr. Morales acknowledged that ninety percent of 

the information is subjective, and appellant's self-reported complaints are all 

subjective in nature. Appellant was treated for anxiety, panic attacks, and 

problems sleeping before the accident. 

In addition, appellant had two MRIs. The first was normal. The second 

showed microscopic lesions of the white matter on the right side of the brain. 

The MRI report describes this as "[w]hite matter abnormalities with sequelae of 

traumatic brain injury." Dr. Morales acknowledged there were other possible 

causes of such lesions. 

Dr. Morales explained that a concussion can take weeks or months to 

develop symptomatology, such as soft tissue swelling or tenderness. It can also 

3

 Agoraphobia is an anxiety disorder characterized by a marked fear, anxiety, 

or avoidance of public places, often perceived as being too open, enclosed, 

crowded, or dangerous. Diagnostic and Statistical Manual of Mental Disorders

217-19 (5th ed. 2013). 
10 A-2658-18

take weeks or months for the psychopathology to become clinical. When asked 

whether he would expect someone with no swelling, no tenderness, no cuts, no 

scrapes, and no contusions at the time of the accident to have pain in the scalp 

four years later, Dr. Morales stated that it could happen. 

On redirect, Dr. Morales stated the accident was a substantial cause of 

appellant's disability and that she did not have PTSD before the accident. 

Dr. Filippone's Testimony 

Dr. Filippone was accepted as an expert in neuropsychology and 

psychology. He prepared a January 30, 2013 report and three addenda. 

As to appellant's credibility, Dr. Filippone found many of her claims 

related to her cognitive status were untrue. Although she claimed she cannot 

think, concentrate, or remember, neuropsychological testing performed by Dr. 

Hunt showed appellant's results were almost entirely in the average to superior 

range. Although appellant claimed she could not function, do anything, or teach, 

she continued to work as a teacher for eighteen months after the accident. 

Dr. Filippone found appellant had significant anxiety or histrionic 

behaviors. She came to his office wearing a bicycle helmet, explaining that she 

did so for safety because people throw things out of windows and she did not 
11 A-2658-18

want another severe traumatic brain injury. Appellant made religious references 

throughout the evaluation. 

Dr. Filippone opined that appellant did not even suffer a concussion. He

concluded that appellant exaggerated her symptoms. He noted appellant had no 

bruise, bump, or laceration from the accident. Initially, her only complaints 

were headaches, which are subjective. He viewed appellant's behavior during 

Dr. Hunt's evaluation, which included sobbing, as very exaggerated some two 

years after the accident. He noted that appellant scored in the average to superior 

range on most aspects of the test and that several low scores did not demonstrate 

functional behavioral problems. Her full-scale IQ and working memory index 

were both in the average range. Her processing speed was at the top of the low 

average range. 

Dr. Filippone found appellant had pre-existing conditions including panic 

disorder with mild agoraphobia, vocationally oriented stress, and chronic sleep 

disorder. He noted that she may have generalized anxiety disorder, 

undifferentiated somatoform disorder, and personality disorder with histrionic 

features. Dr. Filippone opined that none of appellant's symptoms were directly 

related to the accident. He disputed the diagnosis of post-concussive syndrome 
12 A-2658-18

because there was no mechanism of injury, and the pattern of symptoms was 

inconsistent with that diagnosis but consistent with her other diagnoses. 

Dr. Filippone also disputed the diagnosis of mild traumatic brain injury, 

noting that the first MRI showed no evidence of brain injury and the white matter 

abnormalities disclosed by the second MRI were not in an area that would affect 

cognition. He concluded that appellant was not permanently and totally disabled 

from performing the duties of a teacher. 

On cross-examination, Dr. Filippone acknowledged that a person could 

have mild traumatic brain injury without losing consciousness, having bleeding 

on the brain, abnormal diagnostic tests, or gross signs of physical damage. He 

further acknowledged that a mild traumatic brain injury can affect a person's 

cognitive, emotional, behavioral abilities, and personality functioning. In 

addition, the symptoms of traumatic brain injury are largely subjective;

headaches are a symptom of post-concussive syndrome, and dizziness, anxiety, 

and memory loss can also be symptoms of post-concussive syndrome. 

On redirect, Dr. Filippone opined that appellant exhibited the behavior of 

a person who is exaggerating her symptoms and described appellant's 

presentation as the most exaggerated, histrionic, and incredible he ever heard. 
13 A-2658-18

The ALJ's Analysis of the Evidence

The ALJ found Dr. Filippone's opinion that appellant did not suffer a mild 

traumatic brain injury was not persuasive and his conclusion that there was no 

mechanism of injury was inaccurate. The ALJ noted "Dr. Hunt described the 

object that struck [appellant] as a heavy mop handle, and [appellant] said that it 

was solid metal." The ALJ concluded that "[a]n institutional-type mop can have 

a heavy metal handle that could readily cause an injury[,]" and did not accept 

"Dr. Filippone's assertion that there was no mechanism of injury . . . ." 

The ALJ recounted that Dr. Filippone acknowledged that that a person 

suffering a mild traumatic brain injury does not necessarily lose consciousness 

or have external injuries. In addition, the second MRI was more detailed. The 

fact that appellant's psychological testing showed that her cognitive functioning 

was intact did not mean she did not sustain a mild brain injury. The ALJ further 

noted that Dr. Morales' opinion was supported by the reports of Dr. Hunt and 

Dr. Lipton. The ALJ found that appellant suffered a mild traumatic brain injury 

from the September 8, 2010 accident. 

The ALJ next considered whether appellant exaggerated her symptoms. 

He concluded that "[a]ll of [appellant's] complaints related to her physical, 

cognitive, and emotional condition [were] subjective in nature . . . and not 
14 A-2658-18

subject to verification by objective means. Nonetheless, [appellant's] 

complaints of cognitive impairment . . . can be compared to the results of the 

psychological testing." The test results showed appellant's cognitive 

functioning was "in the average to superior range in most areas." The ALJ 

concluded that appellant "exaggerated her symptoms in regard to cognitive 

functioning." He found appellant's complaints regarding physical and emotional 

functioning were not credible. 

The ALJ found appellant did not satisfy the requirements for accidental 

disability retirement benefits. He explained that while appellant had suffered a 

mild traumatic brain injury, 

Dr. Lipton noted in his report, most patients who suffer 

a mild traumatic brain injury recover over a period of 

time. While some patients with mild traumatic brain 

injury have symptoms that persist indefinitely,

[appellant] has not presented credible evidence that she 

falls into this category. It follows that [appellant] has 

not established that she is permanently and totally 

disabled as a result of mild traumatic brain injury. 

Under the circumstances, I [conclude] that [appellant]

has failed to prove by a preponderance of the believable 

evidence that she is permanently, and totally disabled. 

In view of this conclusion, it is unnecessary to reach the 

issue of direct result.

Despite being granted an extension to do so, appellant did not file any 

exceptions to the ALJ's initial decision. On October 17, 2018, the Board issued 
15 A-2658-18

a revised final administrative decision adopting the ALJ's initial decision which 

affirmed the Board's determination denying appellant's application for 

accidental disability retirement benefits. Appellant was advised that she had 

forty-five days to appeal the decision. 

Thereafter, appellant's unopposed request to seal the record was granted

by the Board. Appellant subsequently requested that the record be unsealed. 

The Board declined to do so. 

This appeal followed. Appellant filed her initial notice of appeal on 

February 25, 2019, some 131 days after the Board rendered its final decision. 

Appellant raises the following points for our consideration:

POINT I

THE BOARD'S DECISION TO DENY [APPELLANT

ACCIDENTAL DISABILITY RETIREMENT 

BENEFITS] WAS ARBITRARY AND CAPRICIOUS, 

UNSUPPORTED BY SUBSTANTIAL EVIDENCE.

POINT II

[THE] ALJ . . . MADE AN ERROR THAT LED HIM 

TO DENY [APPELLANT'S ACCIDENTAL]

DISABILITY [RETIREMENT BENEFITS].

POINT III

THE SEALING OF [THE] RECORD ROBBED 

[APPELLANT] OF [HER] RIGHT TO DISCUSS 

[HER] PENSION CASE. 
16 A-2658-18

We are guided by the following well-established principles. "Our review 

of administrative agency action is limited." Russo v. Bd. of Trs., Police & 

Fireman's Ret. Sys., 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). "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) (citations omitted). 

"[A]gencies have 'expertise and superior knowledge . . . in their 

specialized fields.'" Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 

N.J. 215, 223 (2009) (alteration in original) (quoting In re License Issued to 

Zahl, 186 N.J. 341, 353 (2006)). We therefore accord deference to the "agency's 

interpretation of a statute" it is charged with enforcing. Thompson v. Bd. of 

Trs., Teachers' Pension & Annuity Fund, 449 N.J. Super. 478, 483 (App. Div. 

2017) (quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 

189, 196 (2007)), aff'd o.b., 233 N.J. 232 (2018). "'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 
17 A-2658-18

administering and regulating a legislative enactment within its field of 

expertise.'" Id. at 483 (quoting Piatt v. Police & Firemen’s Ret. Sys., 443 N.J. 

Super. 80, 99 (App. Div. 2015)). 

The factual "findings of an ALJ 'are considered binding on appeal, when 

supported by adequate, substantial and credible evidence.'" Oceanside Charter 

Sch. v. Dep't of Educ., 418 N.J. Super. 1, 9 (App. Div. 2011) (quoting In re 

Taylor, 158 N.J. 644, 656 (1999)). "The choice of accepting or rejecting 

testimony of witnesses rests with the administrative agency, and where such 

choice is reasonably made, it is conclusive on appeal." Ibid. (quoting In re 

Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976)). Deference is 

"especially appropriate when the evidence is largely testimonial and involves 

questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 

(1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). 

"A reviewing court 'may not substitute its own judgment for the agency's, 

even though the court might have reached a different result.'" In re Stallworth, 

208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). "This 

is particularly true when the issue under review is directed to the agency's 

special 'expertise and superior knowledge of a particular field.'" Id. at 195 

(quoting Herrmann, 192 N.J. at 28).
18 A-2658-18

That said, when the facts are undisputed, whether an injury occurred 

"'during and as a result of the performance of regular or assigned duties' is a 

legal question of statutory interpretation, which we review de novo." Bowser v. 

Bd. of Trs., Police & Firemen’s Ret. Sys., 455 N.J. Super. 165, 170-71 (App. 

Div. 2018). Conversely, when controlling facts are disputed, we afford 

deference to the Board's factual findings. Oceanside Charter Sch., 418 N.J. 

Super. at 9.

Like all public retirement systems, the TPAF provides for both ordinary 

and accidental retirement benefits. N.J.S.A. 18A:66-39. The principal 

difference between ordinary and accidental disability retirement "is that 

ordinary disability retirement need not have a work connection." Patterson v. 

Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 42 (2008). A TPAF member 

may be retired on an accidental disability pension if the employee 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 or assigned 

duties . . . ." N.J.S.A. 18A:66-39(c); accord Kasper v. Bd. of Trs., Teachers' 

Pension & Annuity Fund, 164 N.J. 564, 573 (2000). Appellant must demonstrate

the accident "constitutes the essential significant or the substantial contributing 
19 A-2658-18

cause of the resultant disability." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 

83 N.J.174, 188 (1980). 

With these principles in mind, we consider whether the Board's decision 

was arbitrary, capricious, unreasonable, or unsupported by substantial credible 

evidence in the record.

We first note that an ALJ's factual findings of lay-witness credibility 

generally receive deference. See N.J.S.A. 52:14B-10(c) ("The [Board] may not 

reject or modify any findings of fact as to issues of credibility of lay witness 

testimony unless . . . the findings are arbitrary, capricious or unreasonable or are 

not supported by sufficient, competent, and credible evidence in the record."). 

In considering that evidence, we "give 'due regard to the opportunity of the one 

who heard the witnesses to judge of their credibility . . . .'" Clowes v. Terminix 

Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Close v. Kordulak Bros., 44 N.J. 

589, 599 (1965)). "[I]t is not for us or the agency head to disturb that credibility 

determination, made after due consideration of the witnesses' testimony and 

demeanor during the hearing." H.K. v. State, Dep't Hum. Servs., 184 N.J. 367, 

384 (2005). Our deference to an ALJ's findings "extends to credibility 

determinations that are not explicitly enunciated if the record as a whole makes 
20 A-2658-18

these findings clear." In re Snellbaker, 414 N.J. Super. 26, 36 (App. Div. 2010)

(citations omitted).

Generally, "where the medical testimony is in conflict, greater weight 

should be accorded to the testimony of the treating physician" as opposed to an 

evaluating physician who has examined the employee on only one occasion. 

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

accord Mernick v. Div. of Motor Vehicles, 328 N.J. Super. 512, 522 (App. Div. 

2000). "Nevertheless, expert testimony need not be given greater weight than 

other evidence nor more weight than it would otherwise deserve in light of 

common sense and experience." Torres v. Schripps, Inc., 342 N.J. Super. 419, 

430 (App. Div. 2001) (citing In re Yaccarino, 117 N.J. 175, 196 (1989)). 

Accordingly, "[t]he factfinder may accept some of the expert's testimony and 

reject the rest." Id. at 430 (citing Todd v. Sheridan, 268 N.J. Super. 387, 401 

(App. Div. 1993)). Moreover, "a factfinder is not bound to accept the testimony 

of an expert witness, even if it is unrebutted by any other evidence." Id. at 431 

(citing Johnson v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429, 438 (App. 

Div. 1997)). "Indeed, a judge is not obligated to accept an expert's opinion, even 

if the expert was 'impressive.'" State v. M.J.K., 369 N.J. Super. 532, 549 (App. 
21 A-2658-18

Div. 2004) (quoting State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div. 

1993)).

The factfinder determines the weight accorded to expert testimony. 

LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 165 

(App. Div. 2001). The factfinder is free "accept some of the expert's testimony 

and reject the rest." M.J.K., 369 N.J. Super. at 549; see also In re Civ.

Commitment of R.F., 217 N.J. 152, 174-77 (2014). 

"[T]he weight to which an expert opinion is entitled can rise no higher 

than the facts and reasoning upon which that opinion is predicated." State v. 

Jenewicz, 193 N.J. 440, 466 (2008) (quoting Johnson v. Salem Corp., 97 N.J. 

78, 91 (1984)). "This is particularly true when, as here, the factfinder is 

confronted with directly divergent opinions expressed by the experts." M.J.K., 

369 N.J. Super. at 549. The weight given to expert testimony also depends on 

whether the expert's "conclusions are based largely on the subjective complaints 

of the patient . . . ." Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86 

(App. Div. 1961). 

The factfinder, rather than a reviewing court, "is better positioned to 

evaluate the witness' credibility, qualifications, and the weight to be accorded 

her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (citing 
22 A-2658-18

Bonnco, 115 N.J. at 607). Ultimately, "[t]he choice of accepting or rejecting 

testimony of witnesses rests with the administrative agency, and where such 

choice is reasonably made, it is conclusive on appeal." Oceanside Charter Sch., 

418 N.J. Super. at 9 (quoting Howard Sav. Bank, 143 N.J. Super. at 9). 

Deference is "especially appropriate when the evidence is largely testimonial 

and involves questions of credibility." J.W.D., 149 N.J. at 117. Here, the 

evidence largely consisted of conflicting expert testimony and appellant's 

subjective symptoms, which required the factfinder to determine the credibility 

of the witnesses and the weight to accord to their testimony. 

Our careful review of the record reveals that the ALJ's findings and 

conclusions, which the Board adopted, are supported by substantial credible 

evidence in the record and that the Board's decision was not arbitrary, 

capricious, or unreasonable. Accordingly, we discern no basis to overturn the 

Board's determination that appellant was ineligible for accidental disability 

retirement benefits. See In re Young, 202 N.J. 50, 71 (2010) (upholding an 

agency decision where substantial credible evidence in the record supported the 

agency's findings.). 

Appellant's remaining arguments lack sufficient merit to warrant extended 

discussion in this opinion. R. 2:11-3(e)(1)(E). Appeals from final decisions of 
23 A-2658-18

state administrative agencies must be filed "within [forty-five] days from the 

date of service of the decision or notice of the action taken." R. 2:4-1(b). The 

request to seal the record and order granting same did not extend the forty-fiveday period to file this appeal from the Board's final decision denying her 

application for accidental disability retirement benefits. Appellant did not move 

to file the appeal as within time. Thus, her appeal was untimely and was 

vulnerable to dismissal on that basis. We have nevertheless addressed the merits 

of her appeal as the Board did not move to dismiss the appeal as untimely. 

Appellant argues that sealing the administrative record deprives her of her 

First Amendment right to discuss her pension case. We reiterate that appellant 

initially requested that the administrative record be sealed. The sealing order, it 

bears noting, prevents public disclosure of the evidence in the record to protect 

appellant's privacy interests. It does not preclude her from discussing the case. 

The administrative record is replete with testimony and reports discussing 

appellant's psychiatric symptoms and diagnoses, neuropsychological test 

results, and related facts. N.J.A.C. 1:1-14.1(b) recognizes "the need to . . . 

protect parties and witnesses from undue embarrassment or deprivation of 

privacy . . . ." We discern no abuse of discretion by the ALJ or the Board. 
24 A-2658-18

Affirmed.