SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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Petitioner

- Appellant,

v.
BOARD OF TRUSTEES , PUB LIC EMPLOYEES' RETIREMENT SYSTEM, Respondent

- Respondent.

Submitted February 13, 2019

– Decided April 22, 2019 Before Judges Currier and Mayer. On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Tr easur y , PERS No. 2

- 1202535. Samuel J. Halpern, attorney for appellant. Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Vania Wang , Deputy Attorney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISIO N This opinion shall not "constitute precedent or be binding upon any court."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

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Petitioner Virginia Goerg appeals from respondent 's decision denying her
accidental disability retirement. Because petitioner 's application for retirement was untimely, and she did not demonstrate substan tial compliance with the filing requirements, we a ffirm. As a para

- teaching assistant in a public school, petitioner became a member of the Public Employees' Retirement System (PERS) in 2003

. After
she was injured at work on September 16, 2005, petitioner collected temporary
workers ' compensation benefi ts until June 17, 2011. Petitioner's positi o n was eliminated on June 30, 2011. On May 8, 2013, h er PERS account was credited pension contributi o ns accrued during the time she collected workers ' compensation benefits. 1
O n June 11, 2013, petitioner contac ted the Divis i on of Pensions and
Benefits (Division) , advising she had unsuccessfully attempted to file an electronic application for accidental disability retirement benefits through the online system. In response, the Division sent petitioner a paper ap plication.

1 N.J.S.A. 43:15A

- 25.1(a) requires an employer to make pension contributions on behalf of its employee during the per iod the employee receives workers ' compensation benefits.3 A

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Pursuant to N.J.S.A. 43:15A

- 7(e), p etitioner's active PE RS membership expired on June 30 , 2013 , two years after the elimination of her job. 2 Petitioner filed the completed paper application nine months later, on April 8, 2014.
Defendant Boar d of Trustees , PERS (Board) c onsidered and denied petitioner 's application in September 2014, stating it was untimely because it

was filed almost three years after the termination of her position

. The Board determined she was ineligible for any other reti rement program because petitioner did not have ten years of service in PERS and was under the retirement

age
. See N.J.S.A. 43:15A

- 38; see also N.J.S.A. 43:15A

- 47. Following the Board's decision, petition er appealed and her case w a s transferred t o the Off

ice of Administrative La w. The parties agree d the Administrative Law Judge (ALJ) could decide the issues on the submitted briefs.
Petitioner argued that under the substantial compliance doctrine , her application was timely because she attempted to file i t electronically , but was unable to complete the process. The Board contended that petitioner's nine

- month
additional delay , a fter being provided the paper application , erased any
meritorious assertion of substantial compliance.

2 Active PERS membership expires when an individual has "discontinue [ d ] [ h er] service for more than two consecutive years." N.J.S.A. 43:15A

- 7(e).4 A

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The ALJ found petitioner had failed to comply with the filing mandates
set forth in N.J.S.A. 43:15A

- 43 and N.J.S.A. 43:15A

- 7(e)

. There was no explanation for the nine

- month delay between receipt of the paper application and its filing. Sh e concluded that the failure to file the application for nine months was unreasonable, and "[ petitioner's ] failure to exercise due d iligen c e precludes a fi nding of substantial compliance " with the statutory requirements. Before this court, petitioner reiterates her arguments and additionally

c ontends the credit ing of her pens ion contribution associated with her workers ' compensation benefits in May 2013 ex tended her time as a member of PERS.
She asserts , therefore, that her time to file the retirement application was
extended to May 2015 , rend ering her filing in April 2014 timely. 3
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 arb itrary, capricious, or unreasonable or lacks fair support in the 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

-

3 We address this contention despite petitioner s tipulat ing before the ALJ that her PERS account expired on June 30, 2013.5 A

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24 (2009 )). In reviewing an administrative decision, we ordinarily recognize the agency's expertise in its particular field. Ibid.
A PERS member may apply for accidental retirement benefits

. The application must be filed " within five years of the original trau matic event. "
N.J.S.A. 43:15A

- 43. Active PERS membership expires when an individual has discontinued service for more than two consecutive years. N.J.S.A. 43:15A

7(e). Here, petitioner discontinued service on June 30, 2011, the day her position was elim inated

. Therefore, her PERS membership expired on June 30,
2013. The fact that peti ti oner's pension contribution was credited at a later time does not change the plain language of the st a tute. The pension contributions did not transform petitioner into an active employee. See James v. Bd. of Trs., Pub. Emps. ' Ret. Sys. , 164 N.J. 396 , 412 (2000) (explaining "a later awarded workers' compensation benefit " do es n ot "reinstate a v alidly terminated

. . . former

emp loyee to active employee status ").
We also reject petitioner's assertion of substantial compliance

. When petitioner advised she was unable to process her electronic application , the
D ivisi o n sent her a paper copy. Had s he returned the completed paper application within a reasonable time of its re ceipt, the filing deadline likely6 A

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would have tolled

. But n ine months is not a reasonable time. Without any explanation for the lengthy delay, w e cannot find that petitioner substantially

co m plied with the s tatu to ry fi lin g requirements

. As such, we concl ude the Board's decision was not arbitrary, capricious , or unreasonable and was supported by sufficient credible evidence.
Affirmed.