SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6015-17T4

M.R., 

Petitioner-Appellant, 

v. 

BOARD OF TRUSTEES, 

PUBLIC EMPLOYEES'

RETIREMENT SYSTEM, 

Respondent-Respondent. 

_____________________________

Argued March 16, 2020 – Decided April 6, 2020

Before Judges Sabatino and Sumners.

On appeal from the Board of Trustees of the Public 

Employees' Retirement System, Department of the 

Treasury, PERS No. 2-1063717

Samuel Michael Gaylord argued the cause for appellant 

(Gaylord Popp, LLC, attorneys; Samuel Michael

Gaylord, on the brief). 

Amy Chung, 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NOT FOR PUBLICATION WITHOUT THE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.
A-6015-17T4

2

Attorney General, of counsel; Robert S. Garrison, 

Deputy Attorney General, on the brief). 

PER CURIAM

Appellant M.R. 1 was employed by the Judiciary in the Union County 

vicinage. He was found to have posted on the Internet numerous disparaging 

comments about his employer, in violation of Judiciary policy.

Because of his inappropriate conduct, appellant was charged in September 

2015 with disciplinary violations. Appellant contends he was suffering from a 

disability before he received the September 2015 disciplinary action letter. While 

the disciplinary charges were still pending, appellant filed a disability retirement 

benefits application in January 2016 with the Public Employment Retirement 

System ("PERS"), pursuant to N.J.S.A. 43:15A-44. He claimed a psychiatric 

disability that impaired his ability to perform his job functions.

Thereafter, in July 2016, appellant entered into a settlement with his 

employer of the disciplinary matter. As part of the settlement, appellant 

agreed to resign from his position and to not seek reemployment with the 

Judiciary in the future. The agreement recites that the parties take no position 

on the impact of the settlement upon appellant’s pending disability retirement 

matter.

 

1 Although no motion to impound the record was filed, we have chosen to refer 

to appellant by his initials because of his mental health information in the record.
A-6015-17T4

3

Appellant’s disability claim was referred to the Office of Administrative 

Law as a contested case. A critical threshold issue was whether the appellant's 

settlement and resignation disallowed the processing of his disability claim.

An Administrative Law Judge ("ALJ") found that the settlement and 

resignation did not bar appellant’s receipt of disability benefits. The PERS 

Board of Trustees reversed that decision, finding that the applicable statutes do 

not allow a disability retirement benefit in instances where the employee resigns 

for reasons other than a disability.

Appellant contends the Board’s final agency decision should be 

overturned because it is inconsistent with the law and arbitrary and capricious. 

He maintains he is entitled to benefits because his disabled condition arose 

before the disciplinary charges were filed against him. 

The eligibility issues before us are squarely controlled by this court’s 

March 1, 2019 published opinion in Cardinale v. Bd. of Trustees, 458 N.J. 

Super. 260 (App. Div. 2019). The Cardinale opinion coincidentally was issued 

after the PERS Board’s final agency decision in the present case, but its 

reasoning validates the Board’s determination here.

In Cardinale, this court considered an application for disability benefits 

under the Police & Firemen's Retirement System ("PFRS"). 458 N.J. Super. at 

262. The plaintiff, a former police officer, had voluntarily and irrevocably 
A-6015-17T4

4

retired from his position under a settlement agreement after he was suspended 

for a positive drug test. Id. at 264-65. We held "that when a PFRS member—

here a police officer—voluntarily irrevocably resigns from active service, such 

a separation from employment automatically renders the individual ineligible 

for ordinary disability benefits." Id. at 263 (emphasis added). We found the 

plaintiff's claimed disability “irrelevant to our holding that his irrevocable 

resignation made him ineligible for benefits in the first place." Id. at 268.

In Cardinale, we noted that the applicable PFRS statute, N.J.S.A. 43:16A8(2), directs that a public employee who retired due to disability, but then 

recovered sufficiently to "perform either his former duty or any other available 

duty in the department which his employer is willing to assign to him . . . shall 

report for duty." (Emphasis added). This statutory requirement provides a way 

"to return the previously disabled retiree to work as if that individual had never

suffered a disability or interruption of service." Cardinale, 458 N.J. at 270; See

also In re Terebetski, 338 N.J. Super. 564, 570 (App. Div. 2001) (same). The 

statutory scheme accordingly strikes a balance between "a worker's interest with 

those of an employer and the public by requiring PFRS workers—upon 

rehabilitation—to forgo the benefits and return to work." Cardinale, 458 N.J. 

Super. at 270.
A-6015-17T4

5

Crucially, we found in Cardinale that N.J.S.A. 43:16A-8(2) dictates that 

this process—whereby a recipient recovers from his or her disability and returns 

to work—is the only way the Board can cut off disability benefits. Id. at 

271. If, on the other hand, a worker "irrevocably resigned" from his or her 

former position, that creates:

a practical problem that strains the workability of the 

system . . . . the Board cannot statutorily cease paying 

any approved disability benefits, once they have begun, 

for an individual who voluntarily resigns from duty to 

settle disciplinary charges and agrees never to return.

[Id. at 270–73.]

Consequently, we ruled in Cardinale that allowing an employee to seek 

disability benefits in a situation where he or she had irrevocably retired would 

prevent the State from ever cutting off disability benefits, even upon recovery, 

because the employee could never "return" to his or her former 

employment. Such an outcome "would violate public policy, contravene the 

rehabilitation statute, and encourage abuse of the disability retirement 

system." Id. at 273. 2 Accordingly, the plaintiff's irrevocable resignation 

rendered him ineligible for participation in the disability pension scheme. Ibid.

 

2 Disability retirement benefits are generally more generous than other 

retirement benefits. See 50 N.J.R. 646(a) (January 16, 2018) (discussing the 

necessity of limiting disability pensions only to employees who actually retire 

due to disability and not some other reason).
A-6015-17T4

6

The pension scheme discussed in Cardinale, covering police and 

firefighters, is different than the PERS pension scheme at issue in this case, and 

governed by different statutes. However, a comparison of the statutes 

demonstrates that Cardinale's logic applies with equal force to the PERS pension

scheme. Such comparisons are particularly appropriate because the various 

pension schemes were designed to be "part of a harmonious whole." In fact, the 

Supreme Court has analyzed one pension scheme using other pension statutes 

as reference. See, e.g., Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l 

High Sch. Dist., Monmouth Cty., 199 N.J. 14, 30-33 (2009).

N.J.S.A. 43:16A-8(2), the PFRS statute at issue in Cardinale, requires a 

recipient of disability benefits to, "upon the request of the retirement system" 

undergo a medical examination and "[i]f 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."

By comparison, N.J.S.A. 43:15A-44, the PERS statute at issue in this 

appeal, likewise requires an employee receiving disability pension benefits to 

undergo a medical examination, in this case on an annual basis. It uses identical 

language to N.J.S.A. 43:16A-8(2), stating "[i]f the report of the medical board 

shall show that such beneficiary is able to perform either his former duty or other 
A-6015-17T4

7

comparable duty which his former employer is willing to assign to him, the 

beneficiary shall report for duty."

Like the statute in Cardinale, N.J.S.A. 43:15A-44 does not provide an 

alternative means for the PERS Board to cut off disability pension benefits even 

where a former employee's disability has ended. The two schemes use identical 

language regarding a pensioner's return to active service. Both statutes envision 

a return to work as the sole means available to a Pension Board to cut off 

disability benefits.

Other state pension schemes and the PERS regulations likewise support 

this conclusion. For example, in another recent decision concerning the 

constitutionality of certain regulations for other state pension schemes, we 

reaffirmed the "longstanding principle that eligibility for disability retirement 

benefits requires members to make a prima facie showing that they cannot work 

due to a disability." In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386, 

394 (App. Div. 2018). Accordingly, "voluntary or involuntary termination of 

employment, for non-disability reasons, generally deems a member ineligible 

for disability benefits." Ibid.

The regulatory scheme for the PERS pension fund also supports the 

Board's decision here. The pertinent PERS regulations instruct that an employee 

who resigns for any other reason than inability to work due to a disability, 
A-6015-17T4

8

including resignation under a settlement agreement, is disqualified from seeking 

disability retirement:

Termination of employment, voluntary or involuntary, 

that was caused by any reason other than the claimed 

disability disqualifies a member from filing for a 

disability retirement. A member whose employment 

ended after his or her employer initiated disciplinary 

action, or who was the subject of criminal or 

administrative charges or party to a settlement resulting

in resignation or termination, is considered to have 

separated from service as a result of the employer 

action, charges, or settlement, and not due to a 

disability, unless the action, charges, or settlement is 

shown to be a result of the disability.

[N.J.A.C. 17:2-6.1.]

Although this regulation was introduced and adopted after appellant 

initially filed his disability pension application, see 49 N.J.R. 2189(a) (July 17, 

2017) (proposing this amendment to the PERS regulations), it supports a reading 

of N.J.S.A. 43:15A-44 consistent with Cardinale. As part of the rulemaking 

process for the regulation, the PERS Board also noted the regulation reflected 

the preexisting law:

Under current law, disability retirement benefits are 

provided to members who have become "physically or 

mentally incapacitated for the performance of duty." 

They are not intended to provide higher retirement 

benefits to members whose service has been terminated 

for any other reason. The fact patterns for the member's 

case, including the reason for the member's voluntary 

or involuntary separation from service, must 

demonstrate that the member is totally and permanently 
A-6015-17T4

9

disabled from performing his or her regular or assigned 

job duties.

[50 N.J.R. 646(a) (January 16, 2018) (emphasis 

added).]

The denial of appellant’s disability application is therefore consistent with the 

underlying statutes and the public policy on terminating pension benefits.

Appellant argues he is eligible for disability pension benefits because he is

only barred by the settlement from reemployment with the Judiciary. He argues 

he can return to employment in a different (non-judicial) branch of State 

government, and that there is nothing in the settlement agreement "to say that 

he couldn't return to his former duties with a different employer." He argues 

this possible return to service as a PERS member is consistent with N.J.S.A. 

43:15A-44.

This argument is contrary to the plain language of the statute, which 

requires a recovered disability pension recipient to "report to duty." N.J.S.A. 

43:15A-44. Our courts have consistently ruled that an employee who has been 

terminated from his position can no longer "report for duty" to the same or 

similar position with his or her employer. See Terebetski, 338 N.J. Super. at 

568 (emphasis added) ("Plainly, the Legislature intended that persons on 

disability retirement who are no longer disabled, i.e., no longer entitled to 

disability retirement . . . be returned to either their prior positions or any 
A-6015-17T4

10

available duty that their employers are willing to assign to them.") (emphasis 

added).3

We made this point clear in In re Adoption of N.J.A.C. 17:1-6.4:

Returning to active service presumes that, at the time 

the beneficiary left public service, he or she actually 

had a duty. . . . And so, a beneficiary who previously 

left public service for some reason other than a 

disability—like termination for cause—would have no 

employment or work duty from which to return.

[454 N.J. Super. at 401.]

Appellant’s disciplinary settlement bars him from returning to his former 

position or any other position in the Judiciary. [Pa7-8]. He does not suggest 

what jobs, if any, outside the Judiciary would be akin to his former "duty" or 

would require similar responsibilities to his position as a Court Services 

Supervisor 2. None of the cases cited in his brief support his argument that 

N.J.S.A. 43:15A-44 envisions allowing an employee to return to a "his former 

duty[,] just not his former employer." Rather, they support the contrary 

proposition that an employee who retires due to disability and subsequently 

 

3 See also Cardinale, 458 N.J. Super. at 270 ("The purpose of N.J.S.A. 43:16A8(2) is to return the previously disabled retiree to work as if that individual had 

never suffered a disability or interruption of service.") (emphasis added); In re 

Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. at 401 ("[D]isability retirees 

must be returned to the same status and position held at the time of retirement, 

if available, after proving rehabilitation.") (emphasis added); Matter of Allen, 

262 N.J. Super. 438, 444 (App. Div. 1993) ("N.J.S.A. 43:16A–8(2) [the PFRS 

statute] contemplates that a restoration to employment return the formerly 

disabled individual as nearly as possible to the status held at the time he or she 

was pensioned.").
A-6015-17T4

11

recovers must be rehired by his former employer in the same or similar 

position. That cannot occur here because of the clear prohibition in the 

settlement agreement.

The theoretical possibility that appellant might someday recover from his 

disability and be hired in a non-Judiciary position within the vast spectrum of 

State government does not amount to a "return to duty" with his former Judiciary 

employer. If we were to adopt that principle, then many meritorious claims for 

disability retirement could be rejected on a theory that the disabled employee 

possibly could work in the future for an entirely different public employer within 

the pension system. In other words, the interpretation appellant advances here 

could readily cause more harm to the public workforce than good. 

All other arguments presented by appellant, to the extent we have not 

already discussed them, lack sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(D) and (E).

Affirmed.