SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2135-19

ROBYN D. FISHER,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES' 

RETIREMENT SYSTEM

Respondent-Respondent.

____________________________

Submitted April 12, 2021 – Decided June 25, 2021

Before Judges Sabatino and Gooden Brown.

On appeal from the Board of Trustees of the Public 

Employees' Retirement System, Department of 

Treasury, PERS No. x-xxx379.

Stayton Law, LLC, attorneys for appellant (Herbert J. 

Stayton, Jr., on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Connor Martin, Deputy Attorney 

General, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-2135-19

PER CURIAM

Petitioner Robyn Fisher appeals from the December 18, 2019 final agency 

decision of the Board of Trustees (Board) of the Public Employees' Retirement 

System (PERS) denying her request to reinstate her administrative appeal. 

Fisher voluntarily withdrew her appeal of the denial of her application for 

accidental disability retirement (ADR) benefits after the matter was transferred 

to the Office of Administrative Law (OAL) for a hearing and the Administrative 

Law (ALJ) heard testimony from three witnesses but had not yet issued an initial 

decision. Because our review of the record in light of the relevant legal 

precedents supports the Board's decision, we affirm.

We glean these facts from the record. Fisher was enrolled in PERS in

1992 when she was employed as a Security Guard for the Camden City Parking 

Authority. Over the years, Fisher worked as a Clerk for the Camden City 

Housing Authority and as a Confidential Assistant with the Camden County 

Board of Elections, transferring her PERS benefits with each position. Fisher 

ultimately left government employment in 2017.

On May 9, 2015, while still employed by Camden County Board of 

Elections, Fisher "fell down steps" at City Hall in Camden, spraining her ankle 

and straining her knee and back. Fisher fell while attending a teaching 
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assignment for work. After the fall, Fisher drove herself to the urgent care and 

was released within twenty-four hours. Fisher reported the injury to her 

employer on May 11, 2015.

On November 3, 2015, Fisher "tripped on [a] curb, falling face forward" 

at the Parks Department in Cherry Hill while she was retrieving "provisional 

ballot bags" in the course of her employment with the Camden County Board of 

Elections. She "scraped [the] palms of [her] hands [and] knees [and] hurt [her] 

right shoulder." Fisher also "experienced [pain] in [her] lower back." Fisher

drove herself to the emergency room and was released within twenty-four hours. 

She reported the injury to her employer the following day. A co-worker

witnessed Fisher "being helped up off the ground," but "did not see her fall." 

On March 11, 2016, Fisher submitted an application for ordinary disability 

retirement benefits (ODR). In her application, Fisher listed her disability as:

Cognitive changes since chemotherapy for breast 

cancer in 2009-2010. Trouble processing information, 

unable to focus or concentrate, unable to complete tasks 

on time. Trouble finding [her] words, constantly 

smelling cigarette smoke, daily migraines[,] and 

vertigo. Falling and dropping things, bumping into 

walls, dizziness. Panic attacks and constant anxiety, 

major depressive disorder, social anxiety disorder. 

Chronic pain in shoulder, knees[,] and ankles. 

Weakness and fatigue.
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On February 16, 2017, the Board denied Fisher's application for ODR 

benefits based on its determination that she was "not totally and permanently 

disabled from the performance of [her] regular and assigned duties pursuant to 

N.J.S.A. 43:15A-42 and relevant case law." The notification letter explained 

that based on her "years of service," Fisher "qualif[ied] for a Deferred 

Retirement," which meant she would be eligible to collect retirement benefits 

following her sixtieth birthday.1 The notification also informed Fisher that she 

could appeal the Board's denial of ODR benefits within forty-five days, after 

which the determination would be final. 

On March 18, 2017, Fisher's counsel notified the Board that Fisher was 

appealing the February 16, 2017 denial of ODR benefits and requested an 

administrative hearing. However, two days earlier, on March 16, 2017, Fisher 

had submitted an application for ADR benefits. In that application, Fisher listed 

her disability as "orthopedic and neurologic residuals" stemming from the 

November 3, 2015 trip and fall incident.2 In light of the ADR application, on 

1

 Fisher was born in 1965.

2

 "The main difference between [ADR and ODR] is that [ODR] need not have 

a work connection. In addition, an [ADR] entitles a member to receive a higher 

level of benefits than those provided under an [ODR]." Patterson v. Bd. of Trs., 

State Police Ret. Sys., 194 N.J. 29, 42-43 (2008).
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March 31, 2017, Fisher's counsel notified the Board that she was withdrawing

her ODR application and attendant appeal, electing instead to proceed with the 

March 16, 2017 ADR application. 

On September 20, 2017, the Board denied Fisher's application for ADR 

benefits. The Board explained:

In making its determination, the Board noted that 

Ms. Fisher filed her application on the basis of an 

incident described as occurring on November 3, 2015. 

Also, the Board considered an incident that occurred on 

May 9, 2015 which was noted on the employer 

certification.

The Board . . . determined that both incidents 

were identifiable as to time and place, are considered 

undesigned and unexpected and occurred during the 

performance of Ms. Fisher's regular and assigned 

duties. However, the Board determined there is no 

evidence in the record of a total and permanent 

disability as a result of either of these incidents.

In making its determination, the Board evidently relied on an August 12, 

2017 Retirement System's Medical Review Board (MRB) report. The MRB 

found "[n]o objective evidence for an orthopedic disability" based on a review

of Fisher's independent medical examination, medical records, and current job 

description. As a result, the MRB did not "consider [Fisher] to be totally and 

permanently disabled" and unable "to perform the duties of [her] job."
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Thereafter, Fisher filed a timely administrative appeal. On November 9, 

2017, the Board approved her request for a hearing and transferred the matter to 

the OAL as a contested case. See N.J.S.A. 52:14B-1 to -31. On July 24 and 

October 9, 2018, an ALJ presided over Fisher's hearing during which both Fisher 

and the Board presented their respective cases. At the July 24 proceeding, the 

ALJ heard testimony from Fisher and her orthopedic expert, and on October 9, 

the Board's expert testified. The following day, October 10, 2018, prior to the 

conclusion of the hearing and the issuance of an initial decision by the ALJ, 

through counsel, Fisher submitted a signed "Withdrawal of Appeal" to the ALJ, 

with a copy to the Board, "withdrawing [her] appeal of the denial of [her]

application for [ADR] benefits." The withdrawal neither explained the reason 

for the withdrawal nor limited the withdrawal in any way.

Approximately three months later, on January 30, 2019, Fisher submitted 

another application for ODR benefits, listing "orthopedic and neurologic injuries 

to [her] right shoulder[,] bilateral knees[,] bilateral hands[,] right ankle[,] right 

wrist[,] and low back" as the disability. On January 31, 2019, the Division of 

Pensions and Benefits (Division) advised Fisher in a letter that she could not file 

another application for disability retirement for her "shoulders, knees, hands, 

ankle, wrist and back" because she was "not found disabled" in both her first 
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ODR application and her prior ADR application, which she appealed and "then 

withdrew." The Division determined that the September 20, 2017 denial by the 

Board of her ADR application "stands as the final decision" and "[n]o further 

[a]pplications for [d]isability [r]etirement for the same ailments will be 

accepted." 

On March 4, 2019, Fisher's counsel responded to the Division's letter, 

explaining the circumstances of Fisher's withdrawal of her ADR benefits appeal. 

According to counsel, when he arrived for the scheduled October 9, 2018 OAL 

hearing during which the Board's expert was scheduled to testify, Fisher 

"advised [him] that she had shoulder surgery scheduled." Counsel continued:

I spoke with the [Deputy Attorney General (DAG) 

representing the Board] and advised him of this 

situation and suggested . . . that our options were to: (1) 

adjourn the testimony of [the Board's expert] until after 

[Fisher's] surgery and re-evaluation; or, (2) to proceed 

with [the expert's] testimony, knowing that he would 

have to be recalled after re-evaluation. The DAG 

indicated that he would have to call Pensions to discuss 

the situation. After his phone conference with a 

representative of Pensions, he indicated that his 

directive was to proceed with [the expert's] testimony. 

There then ensued some discussion with the [c]ourt 

wherein I indicated that the most expeditious option 

was to withdraw[ Fisher's] pending application, re-file 

and resume the application process after [Fisher] was 

re-evaluated. [The Board's expert's] testimony was 

taken. At no time did the DAG indicate to me, or the 
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ALJ, that Pensions would take the position set forth in 

[the Division's] letter.

Consequently, I would request that this matter be 

referred back to the [OAL] for resumption of the 

hearing on [Fisher's] application for disability 

retirement benefits.

On August 2, 2019, after reviewing counsel's "correspondence, 

[c]ertification . . . , and all documentation in the record," the Board denied 

Fisher's request to reinstate the appeal. In the notification letter, the Board 

explained that

there was no requirement that Ms. Fisher withdraw her 

matter from the OAL so that she may proceed with an 

application for [ODR] benefits. Ms. Fisher had filed 

and withdrew several disability applications, all 

generally on the same impairments. . . . The matter was 

ripe for a hearing before the ALJ and Ms. Fisher opted 

to withdraw. Moreover, the regulations authorize the 

Board to award an [ODR] benefit to an [ADR] applicant 

if the member is found to be disabled from performing 

their regular and assigned duties without the need for a 

separate hearing or application. N.J.A.C. 17:2-6.7. 

Thus, the ALJ had jurisdiction to consider whether Ms. 

Fisher was eligible for [ODR] benefits.

The letter also advised Fisher of her appeal rights, specifying that if an 

appeal was filed within the forty-five-day timeframe for appeal, the Board would 

"determine whether to grant an administrative hearing based upon the standards 

for a contested case hearing set forth in the Administrative Procedure Act, 
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N.J.S.A. 52:14B-1[,] and the Uniform Administrative Procedure Rule, N.J.A.C. 

1:1-1 et seq." Further, "[i]f the granted appeal involve[d] solely a question of 

law, the Board may retain the matter and issue a final determination which shall 

include detailed findings of fact and conclusions of law based upon the 

documents, submissions and legal arguments of the parties." 

On August 13, 2019, Fisher's counsel sent a letter to the Board appealing 

the Board's determination that Fisher "would not be able to re-file an application 

on conditions included in the withdrawn application," and that Fisher's

"withdrawal was a final disposition of the matter." Counsel specifically

appealed the denial of "Fisher's request to reinstate her appeal." The letter

notified the Board that Fisher would "rely on the procedural history of th[e]

matter, the transcript of the hearing and discussions on the record with [the 

ALJ],"3counsel's "[c]ertification dated July 2[], 2019,[4]the medical records and 

3

 In the December 18, 2019 final agency decision, the Board noted that Fisher's 

counsel "neither cited to nor provided the hearing transcripts" in support of the 

appeal. Although the July 24, 2018 transcript of the OAL hearing was provided 

as part of the record on this appeal, the October 9, 2018 transcript that 

presumably contained discussions on the record pertaining to Fisher's 

withdrawal of her appeal was not provided. 

4

 Counsel's July 2, 2019 certification was not provided as part of the appellate 

record. However, we presume that it was the same certification reviewed by the 

Board in its August 2, 2019 denial of Fisher's request to reinstate her appeal and 
10 A-2135-19

reports previously submitted as well as additional medical documentation and 

information to be submitted on the issue of total and permanent disability from 

the performance of her regular and assigned duties as well as causal 

relationship." Counsel "requested that th[e] matter be referred by the Board for 

an administrative hearing based upon the standards for a contested case 

hearing."

On December 18, 2019, the Board issued a final agency decision

reiterating its denial of Fisher's request to reinstate her appeal. As a threshold 

matter, the Board denied Fisher's request for an administrative hearing, finding 

"no material facts in dispute." The Board then made "[f]indings of [f]act," 

reciting the procedural history of the matter. See Sloan ex rel. Sloan v. 

Klagholtz, 342 N.J. Super. 385, 392 (App. Div. 2001) ("If a matter before an 

agency does not present contested material issues of fact that can be decided 

only 'after [an] opportunity for an agency hearing,' it is not a contested case 

subject to transfer to the OAL." (alteration in original) (quoting N.J.S.A. 

52:14B-2)). 

that it recounted the circumstances of the withdrawal of the appeal contained in 

counsel's March 4, 2019 response to the Division's letter. 
11 A-2135-19

Next, the Board determined it was able to render "conclusions of law . . . 

on the basis of the retirement system's enabling statutes and regulations without 

the need for an administrative hearing." In that regard, in addition to relying on 

the reasons stated in its August 2, 2019 denial letter, in denying Fisher's request 

to reinstate her appeal, the Board added:

Under the Uniform Administrative Procedure 

Rules, a party may withdraw their request for a hearing 

on the contested issues before the OAL upon written 

notice to the ALJ and all parties. N.J.A.C. 1:1-19.2. 

Once a party withdraws their request for a hearing, the 

ALJ returns the matter to the clerk and the matter is 

returned to the agency head for disposition. [Ibid.] In 

this case, you filed papers to withdraw Ms. Fisher's 

appeal from the OAL. The Board notes that there is no 

language in either document which limits the 

withdrawal to a specific issue in the case, and the 

withdrawal was not filed with any language respecting 

whether it was with or without prejudice. In light of the 

procedural posture of this case, the Board also found 

that you failed to provide a reasonable basis or good 

cause to reinstate a matter that was withdrawn from the 

OAL, returned to the agency, and placed on the Board's 

meeting agenda to note the withdrawal.

The Board also notes that there was no reason to 

withdraw Ms. Fisher's appeal from the OAL in order to 

pursue an [o]rdinary, rather than an [a]ccidental 

disability pension. PERS members may apply for either 

[o]rdinary or [a]ccidental [d]isability retirement 

benefits. N.J.S.A. 43:15A-42, 43. Under both statutory 

schemes, a member must establish a total and 

permanent disability in order to qualify for either 

disability benefit. [Ibid.] Moreover, the regulations 
12 A-2135-19

authorize the Board to award an [ODR] benefit to an 

[a]ccidental [d]isability applicant if the member is 

found to be disabled from performing their regular and 

assigned duties without the need for a separate hearing 

or application. N.J.A.C. 17:2-6.7. 

 

In this ensuing appeal, Fisher argues that "[t]here is no prejudice to either 

party in re-opening the OAL proceedings to supplement the record with expert 

medical testimony and/or medical records relative to the impact of Fisher's 

shoulder surgery." She asserts that because "the interests of justice and a liberal 

reading of the applicable pension laws support permitting [her] to reinstate her 

appeal," the "Board's denial of her request . . . is unreasonable, arbitrary and 

capricious." 

Our review of decisions by administrative agencies is limited, with the 

party challenging the validity of the administrative action carrying a substantial 

burden of persuasion. In re Stallworth, 208 N.J. 182, 194 (2011). Under our 

standard of review, an agency's determination must be sustained "'unless there 

is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks 

fair support in the record.'" Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 

206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). 

Thus, on appeal, our role is limited to the evaluation of three factors:

(1) whether the agency's action violates express or 

implied legislative policies, that is, did the agency 
13 A-2135-19

follow the law; (2) whether the record contains 

substantial evidence to support the findings on which 

the agency based its action; and (3) whether in applying 

the legislative policies to the facts, the agency clearly 

erred in reaching a conclusion that could not reasonably 

have been made on a showing of the relevant factors.

[Herrmann, 192 N.J. at 28 (quoting Mazza v. Bd. of 

Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 

(1995)).] 

When the agency's decision satisfies those criteria, we are obliged to 

afford substantial deference to the agency's expertise and superior knowledge of 

a particular field, even if we would have reached a different result from that 

reached by the agency. Ibid.; In re Taylor, 158 N.J. 644, 657 (1999). While we 

are not bound by an agency's interpretation of legal issues, which we review de 

novo, Russo, 206 N.J. at 27, "[w]e must give great deference to an agency's 

interpretation and implementation of its rules enforcing the statutes for which it 

is responsible." Piatt v. Bd. of Trs., Police & Firemen's Ret. Sys., 443 N.J. 

Super. 80, 99 (App. Div. 2015) (quoting St. Peter's Univ. Hosp. v. Lacy, 185 

N.J. 1, 13 (2005)). "Such deference has been specifically extended to state 

agencies that administer pension statutes." Ibid.

We acknowledge "the well-settled proposition that since pension laws are 

remedial social legislation, they must be liberally construed in favor of the 

persons intended to be benefitted thereby." Bumbaco v. Bd. of Trs. of Pub. 
14 A-2135-19

Emp.s' Ret. Sys., 325 N.J. Super. 90, 94 (App. Div. 1999) (citing Steinmann v. 

Dep't of Treasury, 116 N.J. 564, 572 (1989)).5 Relying on this recognized 

liberality in the interpretation of pension laws to benefit the members, Fisher 

challenges the Board's denial of her request to reinstate her administrative 

appeal as unreasonable. 

Our Supreme Court has recognized that "[t]he power to reopen 

proceedings 'may be invoked by administrative agencies to serve the ends of 

essential justice and the policy of the law.'" Minsavage for Minsavage v. Bd. of 

Trs., Teachers' Pension & Annuity Fund, 240 N.J. 103, 107-08 (2019) (quoting 

In re Van Orden, 383 N.J. Super. 410, 419 (App. Div. 2006)). However, the 

Board's exercise of that inherent power should be invoked only when a member 

demonstrates "good cause, reasonable grounds, and reasonable diligence." Id.

at 109.

5

 While "an employee is entitled to [such] liberality . . . when eligible for 

benefits, . . . eligibility is not to be liberally permitted." Smith v. State, Dep't of 

Treasury, Div. of Pensions & Benefits, 390 N.J. Super. 209, 213 (App. Div. 

2007). "Instead, in determining a person's eligibility to a pension, the applicable 

guidelines must be carefully interpreted so as not to 'obscure or override 

considerations of . . . a potential adverse impact on the financial integrity of the 

[f]und.'" Ibid. (alteration in original) (quoting Chaleff v. Teachers' Pension & 

Annuity Fund Trustees, 188 N.J. Super. 194, 197 (App.Div. 1983)).
15 A-2135-19

In Steinmann, 116 N.J. at 565, and Duvin v. State, Dep't of Treasury, Pub. 

Employees' Ret. Sys., 76 N.J. 203, 208 (1978), the Court determined that the 

Board's inherent powers allowed members to reopen their retirement selections

based on considerations of good cause and reasonable diligence. 

The pensioners in Steinmann and Duvin selected suboptimal retirement options. This Court held that the 

Steinmann pensioner had shown good cause for 

amending her pension designation and should have 

been permitted to do so, and that the Duvin pensioner 

should have the opportunity at further proceedings to 

show good cause "for reopening his original pension 

application and allowing him to claim accidental 

disability retirement in lieu of early retirement 

allowance. . . ."

[Minsavage, 240 N.J. at 109 (quoting Steinmann, 116 

N.J. at 565, 577-78; Duvin, 76 N.J. at 205-06, 208).]

In Minsavage, the Court considered "whether a widow [could] modify the 

retirement application of her recently deceased husband, who was a member of 

the Teachers' Pension and Annuity Fund . . . , even though his application was 

never approved because he selected a retirement option for which he was 

ultimately ineligible." Id. at 105. The Court held "that neither membership nor 

prior approval of a retirement application [was] required for modification of a 

retirement selection where good cause, reasonable grounds, and reasonable 

diligence [were] shown," and remanded for the Board "to allow [the widow] the 
16 A-2135-19

opportunity to argue in favor of modification under that standard." Ibid. The 

Court pointed out that "[s]uch proof must include evidence that [the decedent]

qualified for ordinary disability retirement and that, but for his incapacity, he 

would have changed his retirement selection to ordinary disability." Id. at 110.

Here, the interests of justice do not weigh in favor of allowing Fisher to 

reinstate her appeal, which she voluntarily withdrew on the advice of counsel. 

Unlike Steinmann, Duvin, and Minsavage, Fisher did not select a sub-optimal 

retirement option. On the contrary, she selected an ADR, which "entitles a 

member to receive a higher level of benefits than those provided under an 

[ODR]." Patterson, 194 N.J. at 43. Fisher asserts she "exercised her right to 

withdraw[] her pending application on appeal before the OAL with the intention 

of rightfully re-filing an application for ODR benefits." However, as the Board 

pointed out, if Fisher was found to be disabled from performing her regular and 

assigned duties but ineligible for ADR, N.J.A.C. 17:2-6.7 authorized the Board 

to award an ODR benefit instead, without the need for a separate hearing or 

application. 

Further, although Fisher's attorney subsequently explained the 

circumstances of her withdrawal to the Board, at the time she withdrew her 

appeal, the withdrawal was unconditional. Thus, her claim that she was unaware 
17 A-2135-19

that "the withdrawal was with prejudice" rings hollow. See Maeker v. Ross, 219 

N.J. 565, 578 (2014) ("[E]veryone is presumed to know the law. . . ."). Even 

considering the circumstances of Fisher's withdrawal, a re-evaluation following 

impending shoulder surgery was unnecessary because in order to support her 

disability retirement application, Fisher had to prove that she was totally and 

permanently disabled at the time she left employment in 2017. See N.J.A.C. 

17:1-6.4(a) ("Each disability retirement applicant must prove that his or her 

retirement is due to a total and permanent disability that renders the applicant 

physically or mentally incapacitated from performing normal or assigned job 

duties at the time the member left employment. . . ."). Thus, her condition 

following shoulder surgery over a year later was immaterial. 

Additionally, to support her request to the Board for reinstatement of her 

appeal, Fisher's counsel indicated in his August 13, 2019 letter that, among other 

things, Fisher would rely on the transcript of the October 9, 2018 hearing and 

"discussions on the record with the [ALJ]" that purportedly related to the 

withdrawal of her appeal. However, as noted by the Board in its final decision, 

Fisher's counsel "neither cited to nor provided the hearing transcripts" in support 

of the appeal. Likewise, Fisher failed to provide the Board with additional 
18 A-2135-19

medical documentation on the issue of total and permanent disability when 

afforded an opportunity to do so.

On this record, we are satisfied that Fisher failed to show good cause, 

reasonable grounds, or reasonable diligence to invoke the Board's exercise of its 

inherent power to reopen the proceedings and reinstate her appeal. Thus, there 

is no showing that the Board's decision was arbitrary, capricious, or 

unreasonable, or that it lacked fair support in the record to justify our 

intervention.

Affirmed.