Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3687-23 E.C.,1 Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent. ___________________________ Argued October 5, 2026 – Decided November 4, 2026 Before Judges Berdote Byrne, Perez Friscia, and Torregrossa-O'Connor. On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PFRS No. xx9137. Stuart J. Alterman argued the cause for appellant (Alterman & Associates LLC, attorneys; Stuart J. Alterman, on the briefs). 1 Due to the discussion of E.C.'s medical condition, we refer to appellant by initials pursuant to Rule 1:38-3(a)(2). Thomas R. Hower, Staff Attorney, argued the cause for respondent (Nels J. Lauritzen, Legal Affairs Deputy Director, attorney; Thomas R. Hower, on the brief). PER CURIAM In this matter, we are asked to determine whether petitioner, who allegedly contracted Guillain Barre syndrome ("GBS") from an adverse reaction to an employer-mandated vaccination, is entitled to accidental disability retirement benefits. The Board of Trustees ("Board") rejected the Administrative Law Judge's finding petitioner was eligible for accidental disability benefits because it found: 1) an adverse reaction to an employer-mandated vaccination cannot qualify for accidental-disability retirement benefits; and 2) petitioner failed to demonstrate her disability was a direct result of the vaccination. After careful review, we affirm the Board's decision because there was sufficient evidence to conclude petitioner failed to prove her disability was directly related to the employer-mandated vaccination. I. In March 2008, petitioner began working as a police officer for the City of Passaic. Petitioner claimed nothing prevented her from performing her responsibilities prior to receiving the vaccine. She was accustomed to running five to seven miles three times a week. She was able to "run after and apprehend A-3687-23 2 suspects" and "wrestle with combative suspects." Additionally, she passed semi-annual qualifications, which required her to "drop to her knees and go into a barricaded position and shoot from the 25-yard line within a designated time period." In January 2012, petitioner was ordered to receive the two-part Hepatitis B vaccine, even though she had previously received them. After receiving the first additional vaccine, she felt "tingling" in her lower legs. Nonetheless, she continued her usual running routine. She received her second additional vaccine a month later, in February 2012, and reported to her lieutenant "I don't feel good . . . my legs – something's not right." In May 2012, petitioner called out of work and went to see her primary doctor. At the doctor's office, she approached the front desk but "couldn't make it" to the receptionist and started "slurring her speech," causing the doctor's office to call for emergency services. She was transported to the hospital and "could not feel a thing," even when the doctors were performing a spinal tap on her. During her hospital stay, she was told for the first time she was suffering from GBS. Thereafter, petitioner spent several months receiving physical, occupational, and speech therapy. She was wheelchair bound for four months A-3687-23 3 before transitioning to a walker. She testified she originally hoped to return to her job as a police officer but made the decision to file for disability in 2013 when she realized she was unable to return. On May 6, 2013, petitioner filed an application for accidental disability retirement benefits, alleging the Hepatitis B vaccines caused her GBS. In approximately November 2013, the Medical Review Board of Examiners ("medical board") found no evidence of a GBS diagnosis, and the Board denied her application for disability benefits in February 2014. She appealed the Board's decision, and the matter was transmitted to the Office of Administrative Law ("OAL") as a contested case. The record is composed of various medical reports and indicates petitioner was examined by at least five doctors. On June 4, 2012, Dr. Pandya, an independent neurologist, examined petitioner and wrote her symptoms are "multifactorial with so many etiologies" and he "doubt[s]" she has GBS. On July 1, 2013, Dr. Klein, one of petitioner's doctors, examined petitioner and wrote: Based on the above clinical examination, history of injury and the medical records provided, this individual has sustained a significant reaction to the hepatitis B vaccine . . . Unfortunately, after she received this A-3687-23 4 vaccine, she developed [GBS] that has affected her entire being. It is well known in the medical literature that this syndrome does occur after inoculation of vaccines. The hepatitis B vaccine has also been implicated also in the development of [GBS] . . . . These opinions are based upon a reasonable degree of medical certainty. On October 15, 2012, Dr. Mian, petitioner's expert witness, examined petitioner and originally wrote: "[t]here is no evidence of demyelinating disease consistent with GBS." On September 12, 2013, petitioner consulted with Dr. Gainey who examined petitioner and wrote: If [GBS] was diagnosed I am suspicious that it may have been related as a secondary effect from her upper respiratory tract infection from May 10 through May 14, 2012. Complaints of cognitive dysfunction and headaches would not correlate with a history of [GBS]. With a reasonable degree of medical probability, it is my opinion that her symptoms are not a result of the hepatitis B vaccines. On August 30, 2013, Dr. Mian reevaluated petitioner and diagnosed her with GBS. On November 20, 2013, Dr. Lomazow, the Board's expert witness, evaluated petitioner and wrote: [T]here is no evidence whatsoever that [she] had or has [GBS], there is absolutely no basis for her contention that a vaccine caused it, resulting in disability. This can A-3687-23 5 be stated to a reasonable degree of medical probability . . . [Petitioner] has chronic psychiatric illness which is well documented. She has some form of nonspecific neurologic disease and possible chronic fatigue syndrome. Once again, this is not what I am asked to address at this time. In summary, on a neurologic basis [petitioner] is not totally and permanently disabled from performing the duties of her job as a police officer.2 Petitioner, Dr. Mian, and Dr. Lomazow testified at the Board hearing. Dr. Mian testified he had treated petitioner since 2012, following petitioner's hospitalization, and believes she suffers from ongoing residual effects of GBS. He explained GBS could be caused by a virus or vaccination, and he believed her condition was "most likely related to the vaccine." He explained: Q: . . . in case I didn't preface this earlier, can you give all of your answers to a reasonable degree of medical certainty and probability? And to a reasonable degree of med -- medical certainty and probability in your expert medical opinion as [p]etitioner's treating physician what was the cause of her . . . [GBS] A: So, I be – so with – reasonable certainty I believe it was vaccine was the antecedent for it. And I know – I know she had like a viral illness later on I think which also acted as a trigger. 2 It is unclear from the record how Dr. Lomazow found petitioner was not totally and permanently disabled while noting she had "chronic psychiatric illness which is well documented" and "possible chronic fatigue syndrome." A-3687-23 6 Q: And what do you base your conclusion on? A: Clinical history. However, Dr. Mian admitted there is no test capable of separating the causes of her disability. In contrast, Dr. Lomazow testified he does not believe petitioner has GBS. He explained her complaints were inconsistent with GBS and he has never seen a case of GBS where the person had preserved reflexes. Further, he testified the "EMG" test results spoke "loudly against" GBS because all "F-wave latencies were within normal limits." Regarding vaccines, Dr. Lomazow testified: "I'm not an expert in immunology," but nonetheless opined, within a reasonable degree of medical probability, the vaccine did not cause petitioner's condition. In addition to his testimony, Dr. Lomazow issued two addendums to his expert report after being provided with additional medical records. On June 23, 2016, he wrote: "[t]hese notes do not in any way change my opinion. There is no evidence that this woman has or has ever had [GBS]. Therefore, there is no basis whatsoever to contend that a vaccine taken in the course of her job precipitated her problems." On January 11, 2022, Dr. Lomazow issued another addendum and wrote "there is no change in my opinion that [the vaccine] is not A-3687-23 7 the cause of any neurological disability within a reasonable degree of medical probability." On March 22, 2024, 3 the ALJ issued an initial decision recommending the Board find petitioner eligible for accidental disability retirement benefits. The ALJ found petitioner's disability was caused by an external event because: It is undisputed that, prior to the second vaccine, [p]etitioner was able to satisfactorily perform her usual duties. She was also very active, despite her pre- existing condition. After the second vaccine, she did not feel herself, but pushed through to the point she was rushed to the hospital. As [r]espondent's expert advised, there is a "very minuscule" possibility for the vaccine to produce serious side effects such as GBS. A "very minuscule" possibility is still a possibility. Petitioner's injuries were not induced by the stress or strain of the normal work effort. Accordingly, the ALJ concluded petitioner was eligible for accidental disability retirement benefits. On June 11, 2024, the Board issued its final administrative determination. Although it found petitioner totally and permanently disabled and thus granted retroactive ordinary disability benefits, it denied her claim for accidental disability retirement benefits. The Board explained it "rejects the conclusions 3 The OAL matter experienced several delays including those associated with the Covid-19 pandemic and reassignment to a different ALJ. A-3687-23 8 that [petitioner] had GBS . . . . based on the expert medical opinion of Dr. Lomazow." Additionally, the Board found: Absent some irregularity, compliance with employer- required vaccinations is neither undesigned nor unexpected. Based on its rejection of the conclusion that [petitioner's] disabling condition is a direct result of the Hepatitis B vaccinations, the Board similarly rejects the conclusion that the act of obtaining vaccinations in itself can be considered undesigned and unexpected. Although the Board allowed the concession that the member is totally and permanently disabled from her job duties based on her symptoms, the Board does not concede that [petitioner] had GBS, so it cannot logically conclude that "the impact and outcome of developing GBS was undesigned and unexpected." II. "The principles governing appellate review of an administrative agency 's decisions are well-settled." M.R. v. N.J. Dep't of Corr., 261 N.J. 322, 337 (2025). Our focus is on whether the decision is "arbitrary, capricious, or unreasonable." Ibid. An agency decision is entitled to a presumption of reasonableness, and we generally will not disturb it unless there is a clear showing that the agency: "(1) did not follow the law; (2) acted in an arbitrary, capricious, or unreasonable manner; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate A-3687-23 9 of Need, 194 N.J. 413, 422 (2008). That standard of review is not affected by the U.S. Supreme Court's opinion in Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).4 The burden of demonstrating the agency acted arbitrarily, capriciously, or unreasonably rests with the party challenging the decision. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006). In reviewing an agency decision, we consider: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency 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. [In re Protest Filed by El Sol Contracting & Const. Corp., 260 N.J. 362, 373-74 (2025) (quoting In re Quest Acad. Charter Sch., 216 N.J. 370, 385 (2013)).] 4 See Bd. of Educ. of Sparta v. M.N. ex rel. A.D., 258 N.J. 333, 342 n.4 (2024) ("Loper Bright is not binding on this Court."); In re State, 484 N.J. Super. 442, 453 n.6 (App. Div. 2026) (noting the Court otherwise "has not yet decided whether our deference to agency decisions should track Loper"); In re P.T. Jibsail Fam. Ltd. P'ship, 263 N.J. 208, 217 (2026) (stating "[w]e do not attempt to . . . grapple with the reasoning of Loper Bright, because our decision in this case would be the same regardless of whether we deferred to the [Commissioner's] interpretation . . . or review the [regulatory language] de novo."). A-3687-23 10 If there is substantial evidence supporting an agency's decision, a court "may not substitute its own judgment for the agency's even though the court might have reached a different result." M.R., 261 N.J. at 337 (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). III. Pursuant to N.J.S.A. 43:16A-6(1), members of the Police and Firemen's Retirement System may retire on an ordinary disability allowance upon certification by the medical board that the member is "mentally or physically incapacitated for the performance of h[er] usual duty and of any other available duty in the department which h[er] employer is willing to assign to h[er] and that such incapacity is likely to be permanent and to such an extent that [s]he should be retired." Further, members may receive a higher disability allowance pursuant to accidental disability retirement upon certification by the medical board that a 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 regular or assigned duties and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to h[er]. A-3687-23 11 [N.J.S.A. 43:16A-7(1).] Here, the parties agree petitioner is permanently and totally disabled as a result of her condition, although they dispute the diagnosis and the cause. The Court has explained, to obtain accidental disability retirement benefits, a member must prove: 1.that [s]he 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; an[d] 5. that the member is mentally or physically incapacitated from performing h[er] usual or any other duty. [Mount v. Bd. of Trs., 233 N.J. 402, 421 (2018) (quoting Richardson v. Bd. of Trs., 192 N.J. 189, 212- 13 (2007)).] In this matter, the Board rejected the ALJ's finding petitioner's condition, regardless of the diagnosis, was a direct result of the vaccination. The Board also determined any condition caused from her "compliance with [an] employer- required vaccination[] is neither [an] undesigned nor unexpected" traumatic event. We do not address whether an adverse reaction to an employer-mandated A-3687-23 12 vaccination may qualify for accidental disability retirement benefits as the parties primarily dispute whether petitioner's disability was directly related to the vaccination. We need only reach the Board's first finding because we agree there is insufficient evidence in the record to support the petitioner's position that the vaccine caused her alleged disability from GBS. After examining petitioner, Dr. Gainey concluded "it is [his] opinion that her symptoms are not a result of the hepatitis B vaccines" and mentioned "he is suspicious [petitioner's alleged GBS] may have been related as a secondary effect from her upper respiratory tract infection." Likewise, Dr. Lomazow strongly contested petitioner's allegation the vaccine caused her to contract GBS. Dr. Lomazow personally evaluated petitioner, conducted objective testing that rendered results inconsistent with a diagnosis of GBS, reviewed her medical history, reviewed the reports of other expert witnesses, and repeatedly stated, "There is no evidence that this woman has or has ever had [GBS]. Therefore, there is no basis whatsoever to contend that a vaccine taken in the course of her job precipitated her problems." Taken together, there was enough evidence for the Board to find petitioner 's disability was not caused by the employer-mandated vaccination. Even Dr. Mian, petitioner's treating physician, could point to no objective evidence of GBS, A-3687-23 13 conceded there was no ability to separate the potential viral cause from the potential vaccination cause, and added the virus may have acted as a trigger. Simply stated, petitioner failed to meet her burden of showing her permanent disability was caused by the mandatory vaccines. Because we conclude sufficient evidence supported the Board's finding that petitioner failed to prove the employer-mandated vaccination caused her total and permanent disability, we do not reach the Board's alternative conclusion: that an adverse medical reaction, caused by an employer-mandated vaccine rendering an employee completely and totally disabled, cannot meet the definition of undesigned or unexpected pursuant to N.J.S.A. 43:16A-7(1). See Richardson, 192 N.J. 189. The Board's final administrative decision is affirmed. A-3687-23 14