SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5071-15T1

MICHAEL MASSARO,

Appellant,

v.

PUBLIC EMPLOYEES' RETIREMENT

SYSTEM,

Respondent.

__________________________________

Submitted August 8, 2017 – Decided

Before Judges Sabatino and O'Connor.

On appeal from the Board of Trustees of the 

Public Employees' Retirement System, Docket 

No. PERS #2-10-281668.

William B. Hildebrand, attorney for 

appellant.

Christopher S. Porrino, Attorney General,

attorney for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel; Paul 

Davis, 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NOT FOR PUBLICATION WITHOUT THE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.

December 4, 2017
A-5071-15T1

2

Petitioner Michael Massaro appeals from the Public 

Employees' Retirement System Board of Trustees' final 

administrative determination he is not entitled to receive 

ordinary disability retirement benefits. We affirm.

After working as a probation officer in various capacities 

for the New Jersey Office of Probation Services for 

approximately fifteen years1, petitioner, then seventy years of 

age, applied for ordinary disability retirement pursuant to 

N.J.S.A. 43:15A-42. This statute provides an eligible member is 

entitled to ordinary disability retirement benefits if he or she 

is physically or mentally incapacitated from performing his job 

duties. Ibid. The Board of Trustees denied petitioner's 

application because he did not meet the latter standard. 

Petitioner filed an administrative appeal, and the Board of 

Trustees referred the matter to the Office of Administrative Law 

for a hearing before an administrative law judge (ALJ). During 

that hearing, petitioner testified he suffered from various 

afflictions he claimed were disabling. These included herniated 

disks, hypertension, hypothyroidism, an enlarged prostate,

gastroesophageal reflux disease, tinnitus, and emotional stress. 

 

1 Before he commenced working as a probation officer in New 

Jersey, petitioner was a probation parole officer for the 

Philadelphia Probation Office for thirty years. 
A-5071-15T1

3

Petitioner called his treating physician, Thomas Hanley,

M.D., a board certified family practitioner, to corroborate his 

testimony and establish his entitlement to ordinary disability 

benefits. Hanley opined petitioner's health conditions kept him 

from meeting his job requirements because,

at certain times, the pain that [petitioner]

was in, the medicines he was taking and 

. . . certainly the stress both on the job 

and at home, along with his . . . high level 

of commitment to the job [made him feel] as 

though he could [not] do the job as well as 

he felt it was necessary. 

Hanley stated petitioner's disability was a combination of all 

of his afflictions, but his back condition was a "significant 

aggravating factor."

Hanley testified petitioner was first diagnosed with 

herniated disks in 2008, for which he received injections into 

the afflicted area of the spine, participated in physical 

therapy, and took pain medication. In 2013, petitioner again 

complained of back pain, but Hanley conceded there were no 

objective findings to corroborate petitioner's complaints of 

pain and, other than taking pain medication as needed,

petitioner had not had any treatment to his back since 2008. 

PERS presented the testimony of board certified orthopedic 

surgeon Arnold Berman, M.D., who opined there was no objective 

evidence petitioner ever had a herniated disk or any back 
A-5071-15T1

4

condition that accounted for his complaints of back pain in 

2013. Berman also noted there was no change in any of the 

radiologic findings between 2008 and 2013, indicating there was 

no progressive loss of function over such time period. 

Based on his review of the evidence, the ALJ rejected 

Hanley's opinion petitioner suffered from an orthopedic ailment 

which incapacitated him from performing his job duties, because 

such opinion was not based upon objective findings. The ALJ 

credited Berman's opinion, and further determined there was

insufficient evidence petitioner's non-orthopedic ailments 

precluded him from working. 

Petitioner filed exceptions to the ALJ's decision. PERS 

adopted the ALJ's recommendation and reaffirmed the PERS Board's 

determination petitioner was not entitled to receive ordinary 

disability retirement benefits. This appeal ensued. 

Petitioner argues PERS erred in denying his application for 

ordinary disability retirement benefits because the ALJ failed 

to: (1) give sufficient weight to Hanley's opinion petitioner is 

totally and permanently disabled; (2) recognize petitioner's 

pain and stress prevented him from performing his normal job 

functions; and (3) consider petitioner's extensive medical 

history. 
A-5071-15T1

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The scope of our review in an appeal from a final decision 

of an administrative agency is strictly limited. Circus 

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1,

9 (2009). When reviewing a final decision of an administrative 

agency, we consider whether there is sufficient credible 

evidence to support the agency's factual findings. Clowes v. 

Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). In doing so, we 

give "due regard to the opportunity of the one who heard the 

witnesses to judge of their credibility[.]" Ibid. (quoting Close 

v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must sustain 

the agency's action in the absence of a "'clear showing' that it 

is arbitrary, capricious, or unreasonable, or that it lacks fair 

support in the record[.]" Circus, supra, 199 N.J. at 9. 

In order to qualify for ordinary disability retirement 

benefits under N.J.S.A. 43:15A-42, a member of PERS must 

establish by a preponderance of the credible evidence that he or 

she is physically or mentally incapacitated from performing his 

or her duties. The member must establish an incapacity to 

perform duties in the general area of his or her ordinary 

employment, rather than merely show an inability to perform his 

or her specific job. Bueno v. Bd. of Trustees, Teachers'

Pension & Annuity Fund, 404 N.J. Super. 119, 130-31 (App. Div. 

2008), certif. denied, 199 N.J. 540 (2009).
A-5071-15T1

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Having considered petitioner's arguments in light of the 

record and our standard of review, we conclude PERS' decision is 

supported by sufficient credible evidence on the record as a 

whole. R. 2:11-3(e)(1)(D). PERS adopted the ALJ's findings of 

fact, which were based on his assessment of the expert testimony 

presented by Dr. Hanley and Dr. Berman. We must give 

appropriate deference to the ALJ's and PERS' findings where, as 

here, those findings are based on sufficient credible evidence 

in the record. In re Taylor, 158 N.J. 644, 658-59 (1999). 

Petitioner's arguments are without sufficient merit to warrant 

further discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.