SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4118-18T2

LUISA DINIS FERRER,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES'

RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________

Submitted December 1, 2020 – Decided

Before Judges Gilson and Moynihan.

On appeal from the Board of Trustees, Public 

Employees' Retirement System, PERS No. 2-1302907.

Alterman & Associates, LLC, attorneys for appellant 

(Arthur J. Murray, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Alison Keating, 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NOT FOR PUBLICATION WITHOUT THE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.

January 13, 2021
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Appellant Luisa Dinis Ferrer appeals from the final agency decision of the 

Board of Trustees, Public Employees' Retirement System denying her accidental 

disability retirement benefits. That pension plan grants accidental disability 

retirement benefits if "the member is permanently and totally disabled as a direct 

result of a traumatic event occurring during and as a result of the performance 

of his [or her] regular or assigned duties." N.J.S.A. 43:16A-7(1). Accordingly, 

a claimant seeking accidental disability retirement benefits must prove five 

factors:

1. that he [or she] is permanently and totally 

disabled; 

2. as a direct result of a traumatic event that is

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external to the 

member (not the result of pre-existing 

disease that is aggravated or accelerated by 

the work); 

3. that the traumatic event occurred during and as a 

result of the member's regular or assigned duties;

4. that the disability was not the result of the 

member's willful negligence; and 

5. that the member is mentally or physically 

incapacitated from performing his [or her] usual or any 

other duty.
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[Richardson v. Bd. of Trs., 192 N.J. 189, 212-13 

(2007).] 

The Board adopted the initial decision of the Administrative Law Judge (ALJ), 

concluding Ferrer did not prove "she is totally and permanently disabled and 

. . . physically unable to perform the duties of her position as a teacher's aide."

"[C]ognizant that we are reviewing [the Board's] findings and not those of the 

[ALJ]," Quigley v. Bd. of Trs. of Pub. Emps.' Ret. Sys., 231 N.J. Super. 211, 

220 (App. Div. 1989), under our limited review of an administrative agency's 

decision, In re Carter, 191 N.J. 474, 482 (2007), we affirm.

We will sustain a board's decision "unless there is a clear showing that it 

is arbitrary, capricious, or unreasonable, or that it lacks fair support in the 

record." In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Russo v. Bd. of 

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Under this standard, 

our review is guided by three major inquiries: (1) whether the agency's decision 

conforms with relevant law; (2) whether the decision is supported by substantial 

credible evidence in the record; and (3) whether in applying the law to the facts, 

the administrative "agency clearly erred in reaching" its conclusion. Mazza v. 

Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995); see also In re 

Stallworth, 208 N.J. 182, 194 (2011).
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We are not "bound by an agency's [statutory] interpretation" or other legal 

determinations. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973); 

see also Russo, 206 N.J. at 27. Nevertheless, we accord "substantial deference 

to the interpretation given" by the agency to the statute it is charged with 

enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). 

"Such deference has been specifically extended to state agencies that administer 

pension statutes[,]" because "'a state agency brings experience and specialized 

knowledge to its task of administering and regulating a legislative enactment 

within its field of expertise.'" Piatt v. Police & Firemen's Ret. Sys., 443 N.J. 

Super. 80, 99 (App. Div. 2015) (quoting In re Election Law Enf't Comm'n 

Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)).

"[T]he test is not whether an appellate court would come to the same 

conclusion if the original determination was its to make, but rather whether the 

factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Rev., 

152 N.J. 197, 210 (1997) (internal quotation marks omitted) (quoting Charatan 

v. Bd. of Rev., 200 N.J. Super. 74, 79 (App. Div. 1985)). "Where . . . the 

determination is founded upon sufficient credible evidence seen from the totality 

of the record and on that record findings have been made and conclusions 
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reached involving agency expertise, the agency decision should be sustained." 

Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 174, 189 (1980).

The ALJ's fact finding was based on the testimony of Ferrer and her 

orthopedic expert, David Weiss, D.O., the Board's expert in orthopedic surgery, 

Arnold T. Berman, M.D., and the ALJ's review of the plethora of medical 

documentation detailing the medical treatment Ferrer underwent following a 

back injury she suffered in October 2010, when she—hired as a teacher's aide, 

but then serving as a special education teacher's aide—intervened in a physical 

altercation between two students during which she was forcefully pulled to the 

floor. 

"Ferrer felt something in her back" as she walked one of the students to 

the principal's office immediately following the altercation, but later 

experienced "right-sided pain and pain shooting down into her buttocks." She 

returned to work, but later went from the school nurse's office to her employer's 

workers' compensation treatment facility where she was diagnosed with 

lumbosacral sprain. She stayed out of work for a week, but returned and 

continued working until she filed her application for accidental disability 

benefits in May 2015. As the ALJ found, "[d]uring that time, she was out of 
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work intermittently for her back and was being treated by multiple doctors"; the 

ALJ listed seven medical providers. 

Ferrer first claims the Board erred by adopting the ALJ's decision in which 

he failed to appreciate that, because of her injuries, she was unable to perform 

the job duties of a special education teacher's aide that require more rigorous 

physical activity to care for special education students' needs than activities 

performed by teacher's aides in general education classrooms. She also argues 

the Board erred by adopting the ALJ's decision because he failed to consider or 

misinterpreted tangible medical evidence, including notes, reports and 

diagnostic studies. 

The record belies those assertions. The ALJ carefully reviewed the 

physical medical evidence—delineated in over seven pages of the ALJ's twentytwo page written decision. He considered each doctor's opinion regarding the 

records and diagnostic studies, including Dr. Weiss's basis for his opinion that 

Ferrer was totally and permanently disabled as a teacher's aide because since the 

injury suffered in October 2010, she

has been unable to function as a teacher's aide which 

requires her to be able to assist supervised students 

during emergency drills, assemblies, play periods and 

field trips. She is also required to lift books and 

backpacks, be able to perform one to one instruction, 

be able to perform standing, kneeling and leaning while 
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instructing the students, [with] repetitive bending over 

the students. 

In her merits brief Ferrer contends those activities were specifically required to 

assist special education students, making that job "more 'physically intense'": 

"bending, leaning over, [and] stooping." Although the ALJ found "[t]he job 

descriptions of the two classifications . . . almost identical," he did recognize 

that a special education teacher's aide's "duties were more intense and physical." 

Moreover, an applicant for an accidental disability pension must establish 

an inability to perform duties in the general area of the applicant's regular 

employment, rather than merely showing an inability to perform a specific job. 

Bueno v. Bd. of Trs., Tchrs.' Pension & Annuity Fund, 404 N.J. Super. 119, 130-

31 (App. Div. 2008). The ALJ parsed the divergent opinions offered by Dr. 

Weiss and Dr. Berman. He found both doctors to be "credible, competent 

witnesses," but found Dr. Berman's opinion "that from an orthopedic standpoint, 

[Ferrer] did not sustain a permanent injury and had no functional loss and no 

permanent disability" as a result of the October 2010 incident, and that she "was 

not totally and permanently disabled from the duties of her occupation [as] a 

teacher's aide" to be more persuasive and of greater weight than that of Dr. 

Weiss. 
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Although Ferrer argues the Board erred by adopting the ALJ's decision 

because the ALJ "did not consider the full medical record" in determining 

"which expert was more persuasive" and failed to appreciate she was 

asymptomatic before the October 2010 injury, we reiterate the record clearly 

shows that the ALJ carefully perpended all of the medical evidence. The ALJ's 

conclusions are supported by the record. 

The ALJ observed "Dr. Berman's physical examination of [Ferrer] 

differed from Dr. Weiss's examination in one notable way: [she] did not disclose 

to Dr. Berman that she was injured in 2004." Dr. Berman did learn that MRI 

studies revealed Ferrer had, as the ALJ found, "a herniated disc in 2004 at [level] 

L5-S1 that was causing pressure on the right S1 nerve root." The ALJ assessed 

Dr. Berman's conclusion that Ferrer "was not asymptomatic from 2004 to 2010, 

in part, because the trauma was a multiple level involvement of at least [three] 

levels, with the herniation at L5-S1." 

The ALJ ultimately credited Dr. Berman's rationale for determining Ferrer 

was not asymptomatic prior to the 2010 incident:

Dr. Berman's conclusion was that [Ferrer] had 

long-standing degenerative disc disease that had 

progressed but was not disabling and that her 2010 

injury involved the musculature because there was no 

evidence of disc injury. She was treated, and the injury 
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got better. Her ongoing symptoms were the same 

symptoms that she had prior to the 2010 incident.

Dr. Berman opined that there was no medical 

evidence that [Ferrer] sustained a new injury during the 

2010 incident. He based this conclusion on various 

parts of [her] medical history, including the use of 

lumbar epidural steroid injections to find relief because 

the surgery did not work. He also opined that the 

myelogram performed by Dr. Delasotta and the MRIs 

showed multilevel long-standing degenerative disc 

abnormalities that varied [a] little bit but not 

significantly since 2004.

Dr. Berman defined degenerative disc disease as 

a reduction of the disc space due to the desiccation, 

which acts as the shock absorber between the discs, and 

opined that a bulge is not due to trauma but due to 

degeneration. The progression of the three-level 

degeneration was accelerated by the petitioner's weight 

which at the time of the IME was 270 pounds on her 

five-foot-six-inch frame.

According to Dr. Berman the 2010 MRI showed 

that the disc degeneration became extended from

[levels] L4[-L]5 and L5[-]S1 to include [level] L3[-L]4. 

The herniation was not described the same as in the 

2004 MRI, but Dr. Berman agreed it was still present. 

The ALJ explained why he found Dr. Weiss's opinion that Ferrer was 

totally and permanently disabled was "not supported by a closer analysis of the 

documentary evidence" in Ferrer's medical history, including: a treating 

physician's June 2014 report documenting Ferrer's discharge from care, 

determining Ferrer "had reached maximum medical improvement" allowing her 

"return to work full time and full duty"; an October 2015 report by an advanced 
10 A-4118-18T2

practice nurse authorizing a leave of absence from October 1, 2015 through 

January 1, 2016 after Ferrer presented with complaints of depression, headaches

and lack of daily motivation because of health issues, but without mention of 

any back pain or radiation therefrom; an October 20, 2015 "Work Note" from a 

doctor indicating Ferrer "was able to work full time [without] restrictions"; a 

January 2016 discography report that included a comment that the disc 

descriptions at levels L2-L3, L3-L4 and L4-L5 were normal; and doctor's notes 

from July 2015 indicating Ferrer could return to work without restrictions and 

an August 2015 clinical summary from the same doctor indicating she had 

"improved considerably and . . . was able to work with restrictions only as to 

lifting and stairs." 

The ALJ also highlighted that Dr. Berman reviewed the actual 2004 MRI

films, reviewed "all the medical reports . . . [and] compar[ed] them to one 

another," and "performed his own independent examination which was 

consistent with the findings of the treating physicians." 

"The applicant for . . . disability retirement benefits has the burden to 

prove that he or she has a disabling condition and must produce expert evidence 

to sustain this burden." Id. at 126. It is not our place to second-guess or 

substitute our judgment for that of the Board and, therefore, we do not "engage 
11 A-4118-18T2

in an independent assessment of the evidence as if [we] were the court of first 

instance." State v. Locurto, 157 N.J. 463, 471 (1999); see also In re Taylor, 158 

N.J. 644, 656 (1999). With regard to expert witnesses, we rely upon the ALJ's 

"acceptance of the credibility of the expert's testimony and the [judge's] factfindings based thereon, noting that the [judge] is better positioned to evaluate 

the witness'[s] credibility, qualifications, and the weight to be accorded [to his 

or] her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

There was sufficient credible evidence in the record to support the ALJ's 

selection of Dr. Berman's opinion over that of Dr. Weiss; we are therefore bound 

by the Board's adoption of those findings. See Gerba, 83 N.J. at 189; Quigley,

231 N.J. Super. at 220-21.

Applying our highly deferential standard of review, we are satisfied there 

is sufficient credible evidence in the record to support the Board's determination 

that Ferrer failed to show she was unable to return to work as a teacher's aide.

The Board adopted the ALJ's findings of fact, which were based on his review 

of the medical evidence and his assessment of both the credibility of the experts 

and the weight to be given to their opinions. We must give appropriate deference 

to those findings where, as here, they are based on sufficient credible evidence 
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in the record, Taylor, 158 N.J. at 658-59, including Ferrer's return to work for 

over five years before submitting her pension application.

Affirmed.