Opinion
DOCKET NO. A-3299-12T2
09-29-2014
P.P., Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
John D. Feeley argued the cause for appellant (Feeley & LaRocca, LLC, and The Blanco Law Firm, LLC, attorneys; Pablo N. Blanco, of counsel and on the brief; Mr. Feeley, on the brief). Christopher M. Tattory, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Tattory, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Rothstadt. On appeal from the Board of Trustees, Police and Firemen's Retirement System, Department of Treasury, PFRS No. 3-10-35129. John D. Feeley argued the cause for appellant (Feeley & LaRocca, LLC, and The Blanco Law Firm, LLC, attorneys; Pablo N. Blanco, of counsel and on the brief; Mr. Feeley, on the brief). Christopher M. Tattory, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Tattory, on the brief). PER CURIAM
Petitioner P.P. appeals from the final administrative determination of the Board of Trustees for the Police and Firemen's Retirement System (Board), denying his reinstatement as a firefighter with the City of Orange Fire Department (Department). P.P. served as a firefighter for fourteen years before going on ordinary disability retirement in 2006. He applied for reinstatement three years later, and his application was initially denied by the Board. He appealed the decision, and the Board referred the case to the Office of Administrative Law (OAL). An Administrative Law Judge (ALJ) conducted a hearing and then recommended P.P.'s reinstatement. The Board rejected that recommendation and entered its final determination on January 12, 2013, denying P.P.'s application for reinstatement. This appeal followed.
P.P. argues he is entitled to reinstatement as a firefighter within the Department, because his disability has "vanished or has materially diminished" pursuant to N.J.S.A. 43:16A-8, as found by the ALJ. Having considered appellant's contentions in light of the record and the applicable law, we now affirm.
I.
History of Substance Abuse and Experts' Evaluations
P.P. joined the Department in 1991 and left on disability retirement effective January 2006. He initially said he retired due to his abuse of prescription narcotics. In fact, he began smoking marijuana at age thirteen, and abusing cocaine in 1976. He claimed his drug use escalated when his pregnant girlfriend was found drowned after disappearing for several days. Also, in 2000, he was in a motor vehicle accident that necessitated six surgeries, including cervical disc surgery in 2004. He also underwent neck surgery as a result of an earlier accident. As a result of those surgeries, he began abusing Percocet. According to P.P., he entered rehabilitation hospitals in 1995, 1999 and 2000. On September 8, 2005, when P.P. applied for ordinary disability retirement from the Department due to disc herniation, a note on the application also indicated he had a "psych disability."
P.P. first began seeing a psychologist, James William Schroeder, on June 10, 2003, after the Department referred him for counseling to address his "interpersonal problems" within the Department. "He was . . . having adjustment problems relating to his addictive personality," and was abusing alcohol. Schroeder administered the Million Clinical Multiaxial Inventory-III (MCMI-III) on P.P., which revealed that P.P. was above average intellectually, but had "significant scores" in the following areas: depressive, sadistic, negativistic, anxiety disorder, bipolar disorder, and drug dependence. According to Dr. Schroeder, after some treatment, P.P. proved "quite successful in dissipating his depression and modifying his negativistic behavior." P.P. also attended AA meetings to address his substance abuse, and "appeared to be in control of his addictive behavior."
As part of his application for disability retirement, Dr. Schroeder evaluated P.P. nine times in January 2006. P.P. reported to Dr. Schroeder that he had been attending AA meetings and avoiding situations that could result in drug use up until his accident. However, he then became addicted to the pain medication he was prescribed after the accident, and was unable to perform his duties.
The doctor administered the MCMI-III again, and the Wechsler Abbreviated Scale of Intelligence (WASI). The tests revealed that P.P. had "significant scores" in the following areas: depressive, anxiety, drug dependence, and post-traumatic stress. His results indicated an acquired dependency for narcotic pain medications. Dr. Schroeder opined that P.P.'s depression was environmental and internal, that his anxiety related to his impulsivity, and that his post-traumatic stress was caused by his job termination. However, the doctor said P.P. was able to manage his alcohol consumption.
As a result, Dr. Schroeder issued a report supporting P.P.'s application for disability retirement. The doctor noted P.P.'s history of drug abuse, and that he had been institutionalized three times. The doctor recommended permanent disability "due to acquired dependency upon narcotic pain medication," depression, and anxiety. The doctor opined that there was no possibility of improvement to a degree that P.P. would be able to perform as a firefighter.
Psychiatrist Robert T. Latimer evaluated P.P. for the Board, on March 19, 2007, and issued a written evaluation. P.P. reported to Latimer that he "resigned because of [his] attitude," and that "the director was going to come down on [him]." He also expressed anger about being passed over for a promotion in February 2002. P.P. said he was dependent on Percocet because of the pain from his neck surgery, and had used cocaine just a few days prior to the evaluation. Dr. Latimer diagnosed P.P. with chronic drug abuse and a personality disorder, not otherwise specified. The doctor noted "some evidence of Bipolar Disease," but could also attribute his observations to P.P.'s drug abuse. The doctor concluded that P.P. was "totally and permanently disabled to function as a firefighter." He recommended that P.P. attend AA, and gave him a "guarded to poor" prognosis. As a result, on May 15, 2007, the Board approved P.P.'s application for ordinary disability retirement, effective January 1, 2006.
Application for Reinstatement
Despite his disability retirement, P.P. began volunteering with the Roxbury Social Services in 2007, and with the Flanders Volunteer Fire Department (Flanders Department) and EMS Squad in 2009. He completed the six-month probationary period, became a full member of the Flanders Department, and was promoted to lieutenant on January 1, 2011. His duties included administrative work and hands-on supervision of firefighting.
According to P.P., since retiring, he had attended AA and NA meetings approximately twice a week, and had changed his associations and his perspective. He felt he was in a good place. He denied drinking and abusing drugs, and felt he was fit to return to duty. In 2009, he applied for reinstatement to the Department.
However, he later admitted to having a glass of wine at the end of 2009, but denied drinking anything after that occasion.
In connection with his application, Dr. Schroeder evaluated P.P. twice in July 2009. As part of the evaluation, he administered the MCMI-III to P.P., and the results indicated P.P. was "experiencing a moderately severe mental disorder," and that further clinical care was advisable. The results also revealed possible diagnoses of "Histrionic Personality Disorder, with Obsessive Compulsive Personality Traits, Narcissistic Personality Traits, and Antisocial Personality Features," as well as "Psychoactive Substance Abuse NOS and Bipolar Disorder (manic, severe, without psychotic features)." There were "strong indications" that P.P. was abusing drugs at that time. Also, "brief or extended therapeutic methods" were advisable, including initial short-term intervention followed by techniques to prevent reoccurrence.
During the evaluations, P.P. told Dr. Schroeder that he took disability retirement "because of the situation created by the 'City Administration at that time.'" He said he had been passed over for a promotion, and that this led to a deterioration in his work ethic. However, due to a recent change in the administration, P.P. believed it was a good time to rejoin the Department. P.P. maintained that he had always wanted to return to work.
Dr. Schroeder opined that P.P. had "a figurative epiphany," which "is like having a sudden insight about your life and everything that's happening around you and being able to reveal what you're really looking for, what you hope for." He said the test results "clearly indicate a positive mental status." The doctor noted that P.P. had made "significant" lifestyle changes, in changing his friends, avoiding situations that could trigger drug or alcohol abuse, developing a positive attitude and work ethic. The doctor reported that P.P. had "completely withdrawn from alcohol and drug abuse," and was manifesting significantly less pathological behavior factors. However, P.P. still demonstrated "a tendency toward drug dependence." The doctor concluded "with reasonable psychological certainty" that P.P. was fit for duty as firefighter. He further opined that P.P.'s superior intellect, restored emotional status, and work ethic would make him "an excellent member" of the Department.
On January 28, 2010, a psychiatrist, Ravinder Bhalla, evaluated P.P. for the Board, and prepared a report of his findings. P.P. told Dr. Bhalla that he had been skipped over for a promotion as a result of discrimination based on his and his brother's political affiliations. This caused P.P.'s drug use to escalate and he was faced with termination or disability, which prompted his retirement. P.P. said he had waited until the administration changed before reapplying, as he felt the former administration had been discriminating against him. He said he had a positive relationship with his girlfriend, and was attending AA and NA meetings. He had also had a glass of wine one week prior, but had not abused drugs in a "long while."
Dr. Bhalla reviewed Schroeder's report and test results, and found they were "inconsistent," and had "inexplicable findings." Dr. Bhalla interpreted the test results as indicating a mental disorder, substance abuse, and minimization of issues. The doctor administered the Mood Disorder Questionnaire (MDQ), and P.P.'s results were "highly indicative of Bipolar Disorder."
Dr. Bhalla concluded that P.P. suffered from "Bipolar Disorder, Manic" and "Alcohol Dependence and Poly Substance Dependence in possible partial remission." The doctor found that P.P. was "not fit for duty because he [was] currently in a manic state of Bipolar Disorder," was in "denial about his serious drug and alcohol dependence," had admitted to drinking just one week prior, and blamed others for his difficulties. The doctor described P.P.'s life as a "roller coaster ride" in which "[e]xposure to stress, lack of sleep and even an occasional drink [were] risk factors for his mood disorder to worsen and for him to relapse." He recommended consultation with a psychiatrist, but noted that P.P. was unlikely to seek meaningful treatment due to his lack of insight.
Dr. Schroeder evaluated P.P. again on two occasions in November 2011. He administered another MCMI-III and the results were almost identical to the 2009 results, indicating a moderately severe mental disorder and drug abuse, advising additional treatment, and listing the same possible diagnoses except for bipolar disorder. The results also indicated Psychoactive Substance abuse, and that P.P. was defensive about admitting his psychological problems. Dr. Schroeder said the results indicated substance abuse because P.P. was a recovering addict. The doctor reiterated that P.P.'s substance abuse issues were in remission. P.P. reported that he had made significant changes in his life, through volunteering, forming positive relationships, and no longer abusing drugs and alcohol. P.P. had "shown evidence of a dramatic recovery from his troubled past experience with the Fire Department." Again, Dr. Schroeder concluded that P.P. should be reinstated in the Department.
Dr. Bhalla subsequently wrote two addendums to his report. After reviewing Dr. Schroeder's 2011 report, Dr. Bhalla maintained that P.P. was still unfit for reinstatement. Dr. Bhalla said Dr. Schroeder's report lacked credibility, as he omitted information about P.P.'s continued drinking, and his opinions were inconsistent with test results. Dr. Bhalla noted that bipolar disorder and substance dependence "are chronic, life long, severe mental disorders," and interpreted Dr. Schroeder's report as saying that P.P. had overcome them. Dr. Bhalla was also "astonished" that P.P. denied his difficulties, because he had admitted to drinking wine; had not participated in serious treatment; and believed he was passed over as a result of discrimination, rather than his drug and alcohol abuse. The doctor said that P.P.'s "lack of insight" caused him to question his ability to return to work as a firefighter. Dr. Bhalla's opinion remained unchanged.
OAL Hearing
At his administrative hearing, P.P. presented testimony from his co-workers Nicole Shields, a nurse and lieutenant for the EMS squad and Flanders Department; Scott Faluotico, a mechanical engineer with the Department of Defense and captain for the Flanders Department; and Michael McDermott, a nurse and assistant chief for the Flanders Department. All three were aware of P.P.'s past issues with substance abuse, but had never witnessed him abusing drugs or drinking alcohol, or appearing intoxicated, even at social events. Shields described P.P. as reliable, cooperative, responsive and diligent. Faluotico described P.P. as obedient, proficient, capable, reliable, and trustworthy. McDermott described P.P. as dedicated, enthusiastic, a good leader, and reliable. P.P. testified that he had not abused drugs since 2007, and that he had last consumed alcohol in 2009 when he had a glass of wine.
Dr. Schroeder testified at the hearing consistent with his previous reports. He said that the test results were "somewhat evasive," and were subject to clinical review and judgment. He said that P.P.'s results consistently indicated alcoholism because he was a recovering addict, and one never recovers from alcoholism. The doctor also explained that P.P. was somewhat obsessive compulsive, but opined that this was a positive trait. The doctor said that P.P.'s most recent test results did not indicate bipolar disorder, and the doctor did not believe that P.P. was bipolar. He testified that P.P. had not consumed any drugs or alcohol since 2009, and said that P.P. had addressed his previous issues. Dr. Schroeder had no reservations about P.P. returning to work as a firefighter.
Dr. Bhalla also testified consistent with his previous reports. The doctor said that Dr. Schroeder's test results indicated the exact opposite of what Dr. Schroeder said in his reports. Dr. Bhalla opined that P.P. needed ongoing therapy and medication to treat his bipolar disorder and drug dependence. He further stated that P.P. believed there was never anything wrong with him; and said he was only waiting until certain administrators retired before returning to work, because they had been discriminating against him. Despite P.P.'s apparent success as a volunteer firefighter, Dr. Bhalla expressed concern about him not receiving treatment for his disorders, because "it [would] take only an incident to throw the balance off." He testified that P.P. remained totally and permanently disabled.
A point of contention between the experts was Dr. Bhalla's ability to interpret the tests that Dr. Schroeder administered to P.P. Dr. Schroeder testified that Dr. Bhalla was not qualified to interpret the MCMI-III test results. As to Dr. Bhalla's conclusion that P.P. suffered from bipolar disorder, Dr. Schroeder opined that Dr. Bhalla failed to define the category of bipolar disorder, and noted that P.P. has never been diagnosed as bipolar. Dr. Bhalla admitted that he was not trained to administer or interpret the tests administered by Dr. Schroeder. However, Dr. Bhalla maintained that he knew how to read a report of the tests.
The ALJ found that P.P. spoke candidly and credibly about his past addiction. She found all of P.P.'s co-workers to be credible. She also found that P.P. had been consistently attending AA and NA meetings, contrary to Dr. Bhalla's belief that P.P. had not seriously participated in treatment. The ALJ credited Dr. Schroeder's testimony over Dr. Bhalla's, noting that Dr. Schroeder's assessment of P.P. was far more extensive and more reliable, and was supported by the non-medical evidence presented that P.P. had been successfully volunteering since his disability retirement.
The ALJ noted that the disability application merely indicated a "psych disability," without specifying whether P.P.'s disability retirement was based on his narcotics addiction or bipolar disorder. The ALJ noted that Dr. Schroeder's 2006 report did not reference bipolar disorder, Dr. Schroeder had never diagnosed P.P. with bipolar disorder, and P.P. testified that bipolar disorder was not part of his application. Therefore, the ALJ did not factor bipolar disorder into his determination. Nonetheless, in addressing the question of whether P.P. suffered from bipolar disorder, the ALJ was "more persuaded by the evidence presented by P.P. than that presented by respondent."
The ALJ determined that P.P. had met his burden of proof in demonstrating that his disability had materially diminished to the point that he was fit for duty as a firefighter. The ALJ also determined that P.P. had proven he did not have bipolar disorder, or any other psychological disability, that would inhibit his ability to perform as a firefighter. Therefore, the ALJ concluded that P.P. was "entitled to reinstatement as a firefighter and to be reinstated in the Police and Firemen's Retirement System under N.J.S.A. 43:16A-8(2)."
The Board disagreed, essentially adopting Dr. Bhalla's findings over Dr. Schroeder's. It found that P.P. had not undergone any psychiatric treatment since 2006. It noted that Dr. Latimer, like Dr. Bhalla, had found evidence that P.P. suffered from bipolar disorder. Moreover, Dr. Schroeder had initially diagnosed P.P. with major depression, and admitted that the condition required medication and therapy, which P.P. did not receive. It stated that while P.P. attended AA meetings to address his alcoholism, he "seemed to disregard the fact that [he] has not properly addressed his severe psychiatric disabilities with therapy or medication as was recommended by both Dr. Schroeder and Dr. Bhalla." The Board noted that while an individual with bipolar disorder may be capable of performing as a firefighter, this was only possible if he received proper treatment. Furthermore, it found that P.P. had not presented evidence of his duties as a volunteer firefighter, other than his own "uncorroborated, self-serving testimony." It noted that the duties of a regular firefighter and volunteer firefighter differ.
The Board ultimately concluded that
[t]he ALJ placed too much weight on the testimony of Dr. Schroeder and failed to
adequately consider his 2006 diagnosis and opinion that [P.P.] would not be able to return to work with the City. Further, the ALJ disregarded the testimony of both experts that [P.P. was] not involved in either therapy or medication, and instead relied upon Dr. Schroeder's unsupported opinion that a figurative epiphany ha[d] somehow made [P.P.] capable of returning to work with the City. Dr. Schroeder failed to adequately explain why his diagnosis from 2006 changed. Once again, the sufficient credible evidence in the record demonstrate[d] that [P.P.] still suffer[ed] from major depression and/or bipolar disorder and that he has not treated these conditions.
The Board denied P.P.'s reinstatement, finding that he "ha[d] not treated his psychiatric conditions and remain[ed] totally and permanently disabled from the performance of his job duties with the City of Orange."
II.
Our review of the board's decision is limited. In re Alleged Improper Practice Under Section XI, Paragraph A(d) of the Port Auth. Labor Relations Instruction, 194 N.J. 314, 331 (2008) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). Agency decisions are accorded a "strong presumption of reasonableness," and are ordinarily upheld absent a showing that they are "arbitrary, capricious or unreasonable," or lacking support in the record. Thurber v. City of Burlington, 387 N.J. Super. 279, 301-02 (App. Div. 2006), aff'd, 191 N.J. 487 (2007). The party challenging the decision has the burden of proving that it should be reversed. Rumana v. County of Passaic, 397 N.J. Super. 157, 176 (App. Div. 2007) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)).
We are satisfied from our review that the Board properly exercised its authority to deny P.P.'s application by accepting one expert's opinion over another, despite the ALJ's findings to the contrary.
A disability retiree "may be reinstated following a determination from the Division of Pensions that the retiree is no longer disabled." N.J.A.C. 4A:407.12. The procedure for reinstatement is set forth in N.J.S.A. 43:16A-8(2):
Any beneficiary under the age of 55 years who has been retired on a disability retirement allowance under this act, on his request shall . . . be given a medical examination and he shall submit to any examination by a physician or physicians designated by the medical board once a year for at least a period of five years following his retirement in order to determine whether or not the disability which existed at the time he was retired has vanished or has materially diminished. If the report of the medical board shall show that such beneficiary is able to perform either his former duty or any other available duty in the department which his employer is willing to assign to him, the beneficiary shall report for duty.
"The purpose of this legislation is to return the previously disabled employee to work as if the officer had never been disabled and the officer's service had never been interrupted." In re Terebetski, 338 N.J. Super. 564, 570 (App. Div. 2001). Pension statutes are "remedial in character" and "should be liberally construed and administered in favor of the persons intended to be benefited thereby." Geller v. N.J. Dep't of Treasury, Div. of Pensions & Annuity Fund, 53 N.J. 591, 597-98 (citing 3 Eugene McQuillin, The Law of Municipal Corporations § 12.142 (3d ed. rev. 1963)); see also Fiola v. N.J. Dep't of the Treasury, Div. of Pensions, Police & Firemen's Ret. Sys., 193 N.J. Super. 340, 347 (App. Div. 1984) (pension statutes are to be liberally construed in favor of public employees); Hillman v. Bd. of Trs., Pub. Employees' Ret. Sys., 109 N.J. Super. 449, 455 (App. Div. 1970) ("Our task is to give that language a fair and practical interpretation with reference to the purposes of the retirement act. Pension statutes are to be liberally construed to effectuate their remedial intent.").
As the Supreme Court observed, about the statute's "counterpart" for teacher's, in Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., Monmouth Cnty., 199 N.J. 14, 34-35 (2009) (quoting In re Allen, 262 N.J. Super. 438, 444 (App. Div. 1993)), the statute,
N.J.S.A. 18A:66-40(a).
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is not simply an anti-fraud measure, but part and parcel of a humane and sensible scheme that allows a worker who has recovered from a disability to be assured gainful employment, assuming he remains qualified therefor. The statute balances the worker's interest with those of the employer and the public by encouraging the worker to report his rehabilitation and forgo his pension in favor of work. Under that scheme, the pension system does not continue to pay an able-bodied worker; the school district obtains the services of a qualified teacher; and the newly rehabilitated teacher returns to being a productive member of society. In short, we agree with the Appellate Division panel in Allen, supra, that stated:
It is apparent that the grant of disability retirement is conditioned on the continuation of the incapacity. If the retired employee regains the ability to perform his or her duties, the Legislature mandated that he or she be returned to the former position. The Legislature clearly recognized that individuals returning from a disability retirement are in a unique situation, plainly different from all other employees returning to active service. Their separation from employment is unlike the voluntary separation of other civil servants.
Where an administrative matter is contested and has been referred to the OAL for a hearing, the administrative board "has ultimate authority . . . to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils. & Hackensack Water Co., 189 N.J. Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)). The board must accord deference to the ALJ's fact findings and credibility determinations when based on lay witness testimony, and may not "sift through the record anew" to make an independent determination, Cavalieri v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004), unless such findings "are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c).
The board is not similarly constrained in assessing the ALJ's findings based on expert testimony, and may make new findings about the expert's methodology and opinion. See ZRB, LLC v. N.J. Dep't of Envtl. Prot., Land Use Regulation, 403 N.J. Super. 531, 561-62 (App. Div. 2008). The board may reject the ALJ's findings, provided it determines they are "arbitrary, capricious or unreasonable," and sets forth its reasoning "with particularity." N.J.S.A. 52:14B-10(c); In re Hruska, 375 N.J. Super. 202, 207 (App. Div. 2005).
We find that the Board did not abuse its discretion by rejecting the ALJ's recommendation when it credited Dr. Bhalla's opinion over Dr. Schroeder's. Again, the Board was not obligated to defer to the ALJ's findings based on expert testimony. See ZRB, LLC, supra, 403 N.J. Super. at 561-62. Moreover, in rejecting the ALJ's findings and making its own, the Board set forth its reasoning "with particularity." N.J.S.A. 52:14B-10(c). P.P.'s MCMI-III results in 2003, 2006 and 2009 have consistently indicated that he suffers from a mental disorder, be it depression or bipolar disorder. Dr. Schroeder's initial recommendation for P.P.'s disability was based in part on depression. P.P.'s MDQ results also indicated bipolar disorder. P.P. has not engaged in psychiatric treatment from 2009 to 2011, and has never taken medication to address his psychiatric disorder. Moreover, while Dr. Schroeder claimed P.P. had a "figurative epiphany," it did not prevent P.P. from attributing his original disability retirement to being passed over for a promotion, and facing discrimination by the administration, rather than admitting to his addiction and other problems for which he never received treatment. Under these circumstances, we find no reason to disturb the Board's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION