SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4998-16T1

BONNIE MURPHY,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, 

PUBLIC EMPLOYEES' 

RETIREMENT SYSTEM,

Respondent-Respondent.

______________________________

Argued July 10, 2018 – Decided April 15, 2019

Before Judges O'Connor and Moynihan.

On appeal from the Board of Trustees of the Public 

Employees' Retirement System, Department of the 

Treasury, PERS No. 1073479.

Flavio L. Komuves argued the cause for appellant 

(Zazzali, Fagella, Nowak, Kleinbaum & Friedman, 

attorneys; Richard A. Friedman, of counsel and on the 

briefs; Kaitlyn E. Dunphy, on the briefs).

Jeff S. Ignatowitz, 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NOT FOR PUBLICATION WITHOUT THE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.
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Attorney General, of counsel; Jeff S. Ignatowitz, on 

the brief).

The opinion of the court was delivered by

O'Connor, J.A.D.

Petitioner Bonnie Murphy appeals from a final determination of the 

Board of Trustees of the Public Employees' Retirement System (PERS), which 

found she was not entitled to ordinary disability retirement benefits (ODRB). 

After reviewing the record and applicable legal principles, we affirm. 1

I

The salient facts are undisputed. In 1999, petitioner commenced 

employment as a computer technician with the Wall Township Board of 

Education (BOE). In 2006, the BOE terminated petitioner. In response, the 

Wall Township Information Technology Association filed an unfair labor 

practice charge on petitioner's behalf with the Public Employment Relations 

Commission (PERC). 

In 2009, PERC found in petitioner's favor and ordered she be reinstated 

to her position, and that the BOE compensate her for lost salary, interest and 

benefits, retroactive to August 18, 2006, the day she was terminated. The BOE 

 

1

 We note petitioner's motion to permit the filing of a supplemental briefing 

was granted and both parties' briefs were reviewed.
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filed but PERC denied its motion for reconsideration, a decision we affirmed. 

See Wall Twp. Bd. of Educ. v. Wall Twp. Info. Tech. Ass'n, No. A-3764-09 

(App. Div. Jan. 26, 2011). In 2012, petitioner and the BOE entered into a 

settlement agreement that disposed of all pending claims between them. In 

pertinent part, the agreement provided that, in consideration for $485,000, 

petitioner agreed to resign from the BOE effective June 30, 2012, and to not 

seek any position with the BOE after her resignation. 

Petitioner obtained a job in the private sector. Thereafter, she became 

totally and permanently disabled as of October 2013. On April 10, 2014, 

petitioner submitted an application to PERS for ODRB pursuant to N.J.S.A. 

43:15A-42. On December 10, 2014, the Board of Trustees (Board) of PERS 

denied her application and petitioner appealed. The Board deemed the matter 

a contested case and transferred it to the Office of Administrative Law for a 

hearing. 

When before the Administrative Law Judge (ALJ), the parties stipulated 

to the facts. Petitioner contended that, as a matter of law, she was entitled to 

ODRB pursuant to N.J.S.A. 43:15A-42. In pertinent part, such statute states:

A member [of PERS], under 60 years of age, who has 

10 or more years of credit for New Jersey service, 

shall, . . . upon his own application . . . be retired for 

ordinary disability by the board of trustees. The 
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physician or physicians designated by the board shall 

have first made a medical examination of him . . . and 

shall have certified to the board that the member is 

physically or mentally incapacitated for the 

performance of duty and should be retired.

[(emphasis added).]

Petitioner claimed that because it was not disputed she was still a 

member of PERS,

2 under sixty years of age, had provided over ten years of 

service for the State, and was totally and permanently disabled when she 

applied for ODRB benefits, she was entitled to ODRB pursuant to N.J.S.A. 

43:15A-42. The Board argued she was not entitled to these benefits because, 

when she voluntarily resigned from public employment on June 30, 2012, she 

did not have the disability that caused her to subsequently submit an 

application for ODRB in December 2014. It was stipulated petitioner became 

totally and permanently disabled as of October 2013.

In his initial decision, the ALJ framed the issue as whether "N.J.S.A. 

43:15A-42 require[s] a member to prove the disability existed when she 

separated from service and that the disability was the reason she separated 

from service[.]" The ALJ determined a member need not prove these factors

 

2

 N.J.S.A. 43:15A-7(e) provides that "[m]embership of any person in the 

retirement system shall cease if he shall discontinue his service for more than 

two consecutive years."
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and reversed the Board's decision. The ALJ's principal reason was the 

language of the statute provides that a member of PERS qualifies for ODRB as 

long as the applicant was "physically or mentally incapacitated for the 

performance of duty and should be retired[,]" and that the applicant was a 

member of PERS when the application for benefits is made. Thus, the ALJ 

reasoned, petitioner was entitled to ODRB because she was still a member of 

PERS when she applied for benefits and it was undisputed she became 

disabled while a member.

The Board appealed and reversed the ALJ's initial decision. In its final 

decision, the Board observed that, "the only issue in this case is whether a 

PERS member is eligible for ordinary disability retirement benefits if she 

separates from service because of a voluntary resignation . . . rather than a 

disability."

The Board acknowledged a member's PERS account remains active for 

two years after separating from public service employment. See N.J.S.A. 

43:15A-7(e). However, the Board determined that a member may not 

voluntarily resign, become disabled after separating from service, and then 

receive an ordinary disability retirement benefit for a disability that manifests 

after the separation. The Board's reason for this determination was "[t]his 
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simply could not have been what the Legislature intended." The Board 

focused upon the following language of N.J.S.A. 43:15A-42 to conclude a 

member must be in public service employment to be eligible for ODRB: 

The physician or physicians designated by the board 

shall have first made a medical examination of [the 

member] . . . and shall have certified to the board that 

the member is physically or mentally incapacitated for 

the performance of duty and should be retired. 

[(emphasis added).]

In the Board's view, this language revealed the Legislature contemplated 

that a member seeking ODRB must be holding a position of public 

employment when he becomes disabled. The Board noted such language 

indicates the member was performing duties for a public entity for which he or 

she became too incapacitated to perform, necessitating that such member 

retire. Here, the Board reasoned, because petitioner voluntarily resigned from 

the BOE before she became disabled, she could not be retired from such 

position.

Citing Sussex Commons Associates, LLC v. Rutgers, 210 N.J. 531, 540-

41 (2012), the Board also noted that a statute should not be interpreted in a 

way that produces "a manifestly absurd result." The Board found it would be 

"egregious" to interpret N.J.S.A. 43:15A-42 to mean that a PERS member who 
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voluntarily resigns from public employment and subsequently becomes 

disabled while working for a private employer is eligible to collect ODRB. 

The Board stated, "[c]learly the Legislature could not have intended to provide 

. . . disability coverage for injuries or conditions which were not present when 

the member separated from service and was no longer contributing to PERS."

II

On appeal, petitioner contends the "plain, unambiguous language" of 

N.J.S.A. 43:15A-42 does not require a PERS member to become disabled 

before separation from public service in order to be eligible for ODRB. Thus, 

because she became totally and permanently disabled while a PERS member, 

she claims she is entitled to ODRB. Petitioner further contends the Board's 

decision is not supported by its long-standing interpretation of N.J.S.A. 

43:15A-42 but, even if it were, its interpretation is contrary to statutory law. 

Generally, final decisions of state administrative agencies are entitled to 

considerable deference, and an agency's interpretation of statutes "within its 

implementing and enforcing responsibility is ordinarily entitled to our 

deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 

(App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. 

Super. 93, 102 (App. Div. 1997)). In other words, "[w]e give substantial 
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deference to the interpretation of the agency charged with enforcing an act." 

Merin v. Maglaki, 126 N.J. 430, 436-37 (1992). "Absent arbitrary, 

unreasonable or capricious action, the agency's determination must be 

affirmed." Wnuck, 337 N.J. Super. at 56 (citing R & R Mktg., LLC v. BrownForman Corp., 158 N.J. 170, 175 (1999)). "An appellate tribunal is, however, 

in no way bound by the agency's interpretation of a statute or its determination 

of a strictly legal issue." Mayflower Secs., Co. v. Bureau of Secs. in Div. of 

Consumer Affairs, 64 N.J. 85, 93 (1973). 

A court's obligation when interpreting a law is to determine and carry 

out the Legislature's intent. Allen v. V & A Bros., Inc., 208 N.J. 114, 127 

(2011). To do so, courts first look at the plain language of the statute. 

DiProspero v. Penn, 183 N.J. 477, 492-93 (2005). However, if "the statute 

contains some ambiguity . . . it is permissible to turn to extrinsic evidence for 

aid in interpreting [it]." State v. Smith, 197 N.J. 325, 333 (2009). Courts may 

also look to extrinsic evidence "if a plain reading of the statute leads to an 

absurd result . . . ." DiProspero, 183 N.J. at 493. In our view, N.J.S.A. 

43:15A-42 is sufficiently ambiguous to require that we resort to extrinsic 

evidence to divine the Legislature's intent when it enacted this statute.
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In In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386 (App. Div.), 

certif. denied, 236 N.J. 38 (2018), we noted, "[v]oluntary or involuntary 

termination of employment, for non-disability reasons, generally deems a 

member ineligible for disability benefits. Such a holding comports with the 

existing overall framework of the enabling, eligibility, and rehabilitation 

statutes, and policies applicable to the various State public retirement 

systems." Id. at 394-95.

The statutes that permit ODRB for members of PERS are found in 

N.J.S.A. 43:15A-42 to -46.2; the enabling statutes undergirding PERS are 

N.J.S.A. 43:15A-1 to -161. In N.J.A.C., we noted that none of the enabling 

statutes for any of the State-administered retirement systems "explicitly say 

that a disability retirement applicant must have left public service due to a 

disability." 454 N.J. Super. at 399. However, we found that there is no 

"explicit text in the enabling statutes because it is common sense that disability 

retirees leave their jobs due to a purported disability. After all, the employee 

seeks disability retirement benefits." Ibid. In addition, we noted eligibility 

statutes require a finding the applicant is "incapacitated for the performance of 

duty[,]" and, therefore, it is "unlikely that the Legislature intended membership 
10 A-4998-16T1

[in a retirement system] to be the sole qualification for disability retirement 

benefits." Id. at 400.

In our view, N.J.S.A. 43:15A-42, an eligibility statute, is no exception. 

This statute requires that before a member can be found eligible for ODRB, a 

physician or physicians must certify the member is incapacitated "for the 

performance of duty" and "should be retired." Such language reveals the 

Legislature contemplated that when a member seeks ODRB, he or she is 

performing duties for a public entity, but a physician has determined such 

member must retire. 

Rehabilitation statutes also reflect the Legislature's intention that, to 

qualify for ODRB, a member must be working in public service when he or 

she seeks such benefits, because such statutes require a disability retiree whose 

disability has abated to return to active service. See Id. at 400-01; Klumb v. 

Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 

33-35 (2009). The rehabilitation statute for PERS is N.J.S.A. 43:15A-44(a). 

In N.J.A.C., we commented:

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 

. . . would have no employment or work duty from 

which to return. . . . The statutory language expressly 
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conditions reinstatement for disability retirees upon 

disability rehabilitation. It logically follows then that 

disability retirees must have left public service 

because of the disability in the first instance; unlike 

someone who has been terminated for cause.

If . . . any member could receive disability 

retirement benefits even after leaving public 

employment for an independent reason, a member 

removed for cause could arguably receive disability 

retirement benefits, and then argue for reinstatement 

by operation of . . . the rehabilitation statutes, 

following rehabilitation from the purported disability. 

There is no evidence that the Legislature intended, and 

nothing in the text of the applicable statutes supports, 

such an absurd result.

[454 N.J. Super. at 401-02.]

To the extent we have not expressly addressed any arguments advanced 

by petitioner, it is because we concluded they are without sufficient merit to 

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

Affirmed.