DEBORAH A. RANDO v. BOARD OF TRUSTEES POLICE et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1582-04T21582-04T2

DEBORAH A. RANDO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE POLICE

and FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

____________________________________

 

Argued February 6, 2006 - Decided February 24, 2006

Before Judges Lintner and Gilroy.

On appeal from a Final Determination of

the Board of Trustees of the Police and Firemen's Retirement System, TYPPF-02665-02S.

Clifford L. Van Syoc, argued the cause for appellant.

Eileen S. DenBleyker, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Linda Bilec, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, Deborah A. Rando, appeals from a November 9, 2004, final determination by the Board of Trustees of the Police and Firemen's Retirement System (Board) accepting the summary decision, N.J.A.C. 1:1-12.5(b), of an Administrative Law Judge (ALJ) dismissing petitioner's application for accidental disability retirement benefits, N.J.S.A. 43:16A-7. The ALJ found that petitioner failed to satisfy the second and third prongs of the three-pronged test enunciated in Kane v. Board of Trustees, Police & Firemen's Retirement System, 100 N.J. 651 (1985). Specifically, the ALJ concluded that petitioner's proofs could not establish that (1) she met involuntarily with the object or matter that was the source of her alleged injury, and (2) the incident involved a great rush of force or uncontrollable power. The Board modified the ALJ's findings, concluding that petitioner's proofs also failed to establish the first prong of the Kane test, that her injuries were not induced by the stress or strain of her normal work effort.

Because this appeal arises from the grant of a motion for summary decision, we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Strawn v. Canuso, 140 N.J. 43, 48 (1995); N.J.A.C. 1:1-12.5(b). We conclude that the evidence here is not "'so one-sided that one party must prevail as a matter of law'" and, therefore, reverse and remand for further proceedings. Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

The subject matter of this appeal deals with the Board's decision on eligibility under the Kane three-pronged test. We, therefore, focus only on those facts pertaining to plaintiff's proofs regarding the three prongs. We do not address in detail the facts concerning causal relationship and disability.

Petitioner began working as a police officer for the Atlantic City Police Department in April 1990. In 1995, while on duty, petitioner was involved in an automobile accident, which required a lumbar laminectomy. Following surgery, petitioner returned to work without any restrictions. In 1999, she volunteered for the bicycle unit and was detailed to a five-day bicycle training course. She was given a bicycle comprised of parts from three other bicycles. It did not have shock absorbers and was too big for her, as a result of which, she had difficulty reaching the handlebars.

Petitioner's instructor, Officer Joseph Palamaro, disconnected the brakes on her bicycle, claiming that he did so because petitioner was relying on them too heavily. However, The Police CyclistTM Course Instructor Manual states, "[u]nder no circumstances should brakes be disconnected . . . ." Moreover, petitioner claimed she was being harassed and discriminated against by Palamaro because she was the only woman in the class.

On September 22, 1999, petitioner fell while attempting a bicycle stunt exercise that required her to accelerate to sufficient speed to lift the front wheel onto an eighteen-inch curb. She claimed that because she had no brakes she lost control of the bike and hit the curb, which caused her to fall onto the concrete curb. She thought that she might have broken her arm, but Palamaro ordered her to continue and she complied. When she tried to complete the exercise again, she fell a second time. The next day, she continued the course, but "went flying over the handlebars" after attempting to jump an eighteen-inch telephone pole when the front tire hit the pole. She claims that the accident occurred because she could not stop or slow her bicycle before the front wheel made contact with the pole due to the disconnected brakes. A friend drove petitioner to the emergency room.

Petitioner returned to work on January 15, 2000. In March 2000, while on a cruise vacation, petitioner fell from a height of approximately six feet. On April 26, 2000, petitioner re-injured her back while reaching to retrieve her eyeglasses from under the passenger seat in the patrol car. She reported the incident to her supervisor on May 10, 2000, and filed a detailed report the following day. She underwent fusion surgery of her spine at levels L5-S1 in December 2000. She did not return to work, retired on November 1, 2001, and began receiving "ordinary disability" benefits.

Petitioner filed her application for accidental disability retirement benefits on August 1, 2001. On February 26, 2002, the Board denied petitioner's application, concluding that the incidents that occurred on September 22 and 23, 1999, and April 26, 2000, did not constitute "traumatic events." The Board also determined that petitioner's disability was not the direct result of the September 1999 or March 2000 incidents, but rather the April 26, 2000, incident. Petitioner requested a hearing before an ALJ. The Board approved petitioner's request, and on May 1, 2002, the matter was transmitted to the Office of Administrative Law for a contested hearing. N.J.A.C. 1:1-3.2.

On June 15, 2004, petitioner moved for partial summary decision on the sole issue of "traumatic event." The Board opposed the motion, initially asserting that there were "a number of material facts in dispute" regarding causal relationship and whether the incidents of September 1999, were traumatic events. The Board also filed a cross-motion for summary decision, alternatively arguing that the evidence, even when viewed most favorable to petitioner, was insufficient to prove a traumatic event.

To be eligible for an accidental disability allowance, a person must be found to be "permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance" of the employee's duties. N.J.S.A. 43:16A-7(1). In Kane, the Court enunciated a three-pronged test for determining whether an event is traumatic. First, the injury must not have been "induced by the stress or strain of the normal work effort"; second, the employee must have "met involuntarily with the object or matter that was the source of the harm"; and third, the "source of the injury itself was a great rush of force or uncontrollable power." Kane, supra, 100 N.J. at 663.

The ALJ found that for the purpose of deciding the motion, petitioner's proofs met the first prong of the Kane test because the petitioner's claim encompassed serious injuries, which unlike bumps or bruises could not be considered part of the normal work effort. Finding that petitioner failed to satisfy the second prong, the ALJ made the following finding:

The clear implication of petitioner's Certification is that she was being forced by her trainer to use a defective bicycle with the brakes disconnected and over which she had little control. She stated that she continued in her attempts at the training exercises because she was being publicly humiliated and embarrassed. On the other hand, [it] is clear that it was petitioner, and not someone else, that peddled her bicycle into motion in an effort to successfully complete the training exercises leading to her injuries.

The ALJ made the following findings that petitioner's proofs were insufficient, as a matter of law, to meet the third prong:

[P]etitioner was not struck by a moving object such as a motor vehicle, or even another person riding a bicycle at a great speed . . . . I FIND that the incidents described by petitioner even when viewed in a light most favorable to her position, did not involve a great rush of force or uncontrollable power . . . .

Even if I were to have found that the petitioner herein is the victim of a great rush of force or uncontrollable power, I FIND that the incidents in question were brought into motion by petitioner's own actions and conduct . . . .

I FIND based upon petitioner's own submissions in support of her motion, that any force or power causing her injuries originated from her own conduct in pedaling her bicycle. I FIND that there are no events in the record herein that qualify as a "great rush of force or uncontrollable power."

Modifying the ALJ's finding and concluding that petitioner's proofs were deficient to meet the first prong, the Board set forth the following in its final decision:

Since Ms. Rando was a bicycle officer, part of her regular and assigned duties was to complete the bicycle training course as part of her normal job requirements.

On appeal, petitioner argues that the accident fell outside the realm of the normal work effort because her supervisor disconnected the brakes and the accident did not occur so often as to constitute part of her daily routine. The Board counters, maintaining that it was petitioner who volunteered for the bicycle unit, requiring her to undergo the training that resulted in the complained of incident. "The determination of what constitutes the stress or strain of the normal work effort requires a fact-sensitive inquiry." Gable v. Bd. of Trs. of Pub. Employees' Ret. Sys., 115 N.J. 212, 222-23 (1989). Just because an occurrence causing injury qualifies as an occupational hazard does not necessarily mean that it constitutes normal stress or strain. Id. at 223. When examining the first prong, we must look to whether the type of incident occurs frequently or can be expected by the employee in his or her daily routine. Id. at 223-24. The alleged disconnection of the petitioner's bicycle brakes, as opposed to those of other trainees, together with the proscription of such activity in the training manual, established sufficient proof, when viewed in a light most favorable to petitioner, to create a genuine issue that the incident was not part of the ordinary stress and strain of her daily routine. The Board's conclusion to the contrary incorrectly focused on petitioner's decision to become a bicycle officer rather than whether the incident was something that could reasonably be expected as part of petitioner's daily routine.

We next consider the second prong. The second prong limits the award of accidental disability to incidents in which "a worker involuntarily meets with a physical object or some other external matter . . . ." (emphasis added). Kane, supra 100 N.J. at 663. The Board's argument that petitioner met voluntarily with the ground because it was she, as opposed to someone else, who was pedaling the bicycle in order to complete the training exercise is disingenuous at best. It is petitioner's fall from the bicycle and her body's contact with the ground that must be involuntary, not her decision to ride the bicycle or participate in the exercise. For example, in DiBlasi v. Board of Trustees, Public Employees' Retirement System, 315 N.J. Super. 298 (App. Div. 1998), the petitioner, who worked in a hospital, was pushing a large cart filled with soiled linens weighing 750 to 850 pounds through a doorway when he placed his foot against the door to prevent it from automatically locking behind him. Id. at 300. As he pushed the cart into the hallway, he let go of the door with his foot, causing the door to close quickly behind him, squishing him between the door and the cart. Ibid. We noted:

The fact that DiBlasi "voluntarily" removed his foot from the door as he was pushing a heavy four-wheeled linen cart through the doorway does not support a conclusion that he "voluntarily" met with "the object or matter that was the source of the harm." DiBlasi certainly did not intend to be hit in the back by the doors . . . when he released his foot from the door.

[Id. at 303.]

As in DiBlasi, petitioner did not voluntarily intend to fall and hit the ground when she was executing the jumps that were part of her training exercise.

Addressing the third prong on appeal, the Board relies on those cases in which accidental disability was denied where the injuries were occasioned by a worker's slip and fall that did not entail "a great rush of force or uncontrollable power." See Maynard v. Bd. of Trs. of Teachers' Pension & Annuity Fund, 113 N.J. 169, 175 (1988); Ciecwisz v. Bd. of Trs., Police & Firemen's Ret. Sys., 113 N.J. 180, 182 (1988). In Maynard and Ciecwisz, decided the same day, the petitioners slipped and fell from a standing position. Dianne Maynard, a teacher, slipped and fell on a recently waxed floor within the school. Richard Ciecwisz, a corrections officer, slipped and fell on cooking oil deliberately spilled on the kitchen floor by two inmates. Reasoning that the third prong was not met, the Court in Maynard observed, "[i]n slip-and-fall cases, no force or power originates anywhere except from the person falling. Any gravitational force that is generated by the fall is not 'great,' as that term was used in Kane." Maynard, supra, 113 N.J. at 175 (quoting Kane, supra, 100 N.J. at 663)).

Both Maynard and Ciecwisz are distinguishable from the case at bar. The Court in Maynard distinguished other cases in which the petitioners are not standing at ground level. Ibid. Explaining the dicta in Kane, which set forth an example of a fireman falling from the top of a ladder as a traumatic event, the Maynard Court stated, "[a]lthough a fireman who falls from the top step of a tall ladder also falls as a result of his or her own conduct, the height of the ladder generates a gravitational force that, unlike that of someone who is standing on the ground, is 'great.'" Ibid.

Likewise, in Quigley v. Board of Trustees of Public Employees' Retirement System, 231 N.J. Super. 211 (App. Div.), certif. denied, 117 N.J. 153 (198), we reasoned:

In general, the further a body falls, the greater its speed when it strikes the ground and the greater the apparent upward force which the ground exerts to stop the fall. We infer that it is that apparent resistive force, whose magnitude depends on the height from which a body has fallen, to which the [C]ourt in Maynard was referring as either "great" or less than "great."

[Id. at 218.]

In Quigley, two petitioners fell from above ground level. Martin Quigley, a maintenance worker for the New Jersey Turnpike Authority, was assigned to wash a "tandem rack truck." While washing the truck, he slipped and fell four feet from the running board of the truck to the ground. The second petitioner, Raymond Hilsman, was employed as a truck driver delivering furniture to a school. As he stepped on the tailgate to hand furniture to men standing on the ground, he fell five feet because someone had activated the hydraulic lift that lowers the tailgate to the ground. Id. at 214-15.

We distinguished Maynard and Ciecwisz because "[n]one of the accidents which were actually involved in [those cases] involved falls from higher than ground level. Id. at 217; cf. Barney v. Bd. of Trs., Police & Firemen's Ret. Sys., 238 N.J. Super. 556, 558-59 (App. Div.), certif. denied, 122 N.J. 168 (1990) (holding that a police officer who lost his balance after stepping on a loose brick and who fell down a flight of steps, was not comparable to the direct and unbroken fall of an individual from a considerable height with its attendant gravitational forces). Recently, in Moore v. Board of Trustees of State Police Retirement System, ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op. at 9-10), another appellate panel emphasized that in order to qualify as a traumatic event for accidental disability pension under Kane, "the worker himself [must have been] exposed to a violent level of force or impact." Id. at ___ (quoting Kane, supra, 100 N.J. at 662)).

Petitioner asserts that she was propelled over her handlebars as a result of the forward motion of her bicycle when it was caused to stop suddenly by contact with an outside object. These facts, at the very least, present a genuine issue respecting the bicycle's speed and resultant forces, which would naturally come into play and cause petitioner's body to accelerate beyond that which would be experienced by a simple slip and fall. The actual force developed may very well be the subject of expert testimony. Simply stated, the facts presented by petitioner were sufficient to survive the Board's motion for summary decision so as to require a plenary hearing to resolve the factual issues raised respecting the first and third prongs of Kane.

Accordingly, we reverse and remand the matter for a plenary hearing on the issues of eligibility under the Kane prongs and causal relationship. In view of what we have said, petitioner's remaining contention, raised for the first time on appeal, that she is entitled to summary disposition on the issues of eligibility and causal relationship is devoid of merit and does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The parties concede that the only issue raised by the parties and decided by the ALJ and Board was petitioner's eligibility under Kane. The question of whether petitioner's condition was a direct result of the incident complained of was not addressed.

Petitioner relied on the facts that she established in a discrimination and LAD law suit against Atlantic City in which she recovered a jury verdict in excess of $300,000.

The Board, however, found that petitioner's disability was a direct result of the April 26, 2000, incident and she was entitled to ordinary disability benefits.

Petitioner conceded that the April 26, 2000, incident did not constitute a "traumatic event." Initially, the Board's cross- motion sought summary decision on both the issue of traumatic event and of causal relationship. Prior to the time the motion was heard, however, the Board withdrew its application for summary decision on the issue of causal relationship, conceding that there were genuine issues of material fact with respect to "direct result."

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A-1582-04T2

February 24, 2006