EDWARD O'NEILL v. BOARD OF TRUSTEES, POLICE & FIREMEN'S RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2645-05T32645-05T3

 

EDWARD O'NEILL,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE &

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

_______________________________

 

Submitted September 5, 2006 - Decided September 26, 2006

Before Judges Payne and Gilroy.

On appeal from a final decision of the Board of Trustees, Police & Firemen's Retirement System, OAL Docket No. TYPPF 08595-2004S, PFRS #3-10-30762.

DeNoia & Tambasco, attorneys for appellant (G. John Germann, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Jeff Ignatowitz, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, Edward O'Neill, appeals from an October 31, 2005 final determination by the Board of Trustees of the Police & Firemen's Retirement System (Board) adopting the findings of fact and conclusions of law of an Administrative Law Judge (ALJ) denying petitioner's application for accidental disability retirement benefits, N.J.S.A. 43:16A-7. We reverse.

The subject matter of this appeal concerns the Board's decision of eligibility under the three-prong test enunciated in Kane v. Board of Trustees, Police and Firemen's Retirement System, 100 N.J. 651 (1985). The ALJ found that plaintiff had met the first two prongs: "that his injuries were not induced by the stress or strain of the normal work effort [and] that he met involuntarily with the object or matter that was the source of harm." Id. at 663. However, the ALJ determined that petitioner failed to meet the third prong: "that the source of the injury itself was a great rush of force or uncontrollable power." Ibid. Thus, we focus on only those facts concerning plaintiff's proofs regarding the third prong.

On February 3, 2003, while employed as a police officer by the Barnegat Township Police Department, petitioner responded to a call for police assistance concerning a burglary and assault in progress. Upon arrival of Police Officer Sierchio and Sierchio's K-9 partner, the two officers attempted to locate the suspect by tracking him into a wooded area at the rear of the victim's home. Sierchio and the dog proceeded first, followed by petitioner. The pursuit led the officers to a ravine approximately four and one-half feet in depth, as measured from ground level, and approximately six feet in width. A fallen tree or log, six to eight inches in diameter and wide enough for individuals to cross, rested on the top of the banks of the ravine.

Patrolman Sierchio and his dog proceeded to cross the ravine, and petitioner followed. As petitioner stepped onto the log with his left foot and was in the process of taking a second step, the log suddenly shifted, causing him to fall. The ALJ described the fall:

His legs came out from under him and he impacted the log horizontally with his back and his left hip area, and this then catapulted him into the creek. His lower legs then hit the bottom of the creek, and even though there was water in the creek that was a few inches deep, there was still a hard impact when he struck the creek bottom.

At the time of the fall, petitioner was carrying approximately twenty-five pounds of gear, including his bulletproof vest, gun belt, and radio. As a result of the accident, petitioner suffered a herniated disc at the L5 - S1 level with compression at the S1 nerve root, requiring surgical repair, leaving him disabled and unable to fulfill his duties as a police officer.

In concluding that petitioner failed to present sufficient proofs to meet the third prong under Kane, the ALJ determined "the shifting of the log [was] not similar to a collapsing roadway or some other collapsing structure as in Flores . . . or in Nelson;" but was "similar in nature to the facts in Barney [v. Bd. of Trustees Police and Fireman's Retirement System, 238 N.J. Super. 556 (App. Div. 1990)], where a police officer slipped and fell down several stairs, after stepping on a loose brick.

Appellate courts have a limited role in reviewing decisions of administrative agencies. In Re Taylor, 158 N.J. 644, 656 (1999). An agency's decision must stand unless it is arbitrary, capricious, or unreasonable. In Re Twp. of Warren, 132 N.J. 1, 26 (1993). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Korduak Bros., 44 N.J. 589, 599 (1965). The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. McGowan v. New Jersey State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

The Board relies on those cases in which accidental disability retirement was denied where the injuries were caused 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); Barney, supra, 238 N.J. Super. at 558. Those cases are distinguishable from the present case because they involved petitioners who had slipped and fallen from a standing position or from too insufficient of a height to be found "comparable to the direct and unbroken fall of an individual from a considerable height with its attendant gravitational forces." Barney, supra, 238 N.J. Super. at 559.

In Maynard, a teacher slipped and fell on a recently waxed floor within the school. Reasoning that the third prong was not met, the Court 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). However, the Court 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.

In Ciecwisz, a corrections officer slipped and fell on cooking oil spilled on the floor by two inmates. The Court, adopting its reasoning in Maynard, decided the same date, concluded "that a slip-and-fall accident does not entail 'a great rush of force or uncontrollable power.'" Ciecwisz, supra, 113 N.J. at 182. In Barney, this court affirmed the Board's decision, denying a police officer accidental disability retirement, when the officer slipped and fell a distance of approximately five feet on a flight of stairs after losing his balance while stepping on a loose brick. Barney, supra, 238 N.J. Super. at 558-59. In affirming the Board's action, we held that "Barney's slip and fall was not appreciably different from the slip and fall of a teacher on a highly polished floor discussed in Maynard v. Board of Trustees, supra,." Id. at 558.

However, following the distinction discussed in Maynard where a petitioner is not standing at ground level, and falls from a height sufficient to generate a gravitational force greater than as if he had fallen from a standing position, we have concluded that the third prong was met. Quigley v. Board of Trustees of Public Employees' Retirement System, 231 N.J. Super. 211 (App. Div.), certif. denied, 117 N.J. 153 (1989). In Quigley, two petitioners fell from above ground level. Quigley, a maintenance worker for the New Jersey Turnpike Authority, was assigned to wash a 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 attempted to step onto the truck's tailgate before starting the hydraulic lift to lower the tailgate to the ground, he fell because he was unaware that someone else had moved the control lever, and the tailgate was already descending. Id. at 215. Hilsman "stepped into space, lost his balance, . . . and fell from the back of the truck, which was about five feet off the ground, onto the descending tailgate and from there onto the first few stairs leading into the school building, striking the railing as he landed." Ibid. 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. In determining that the two petitioners in Quigley qualified for accidental retirement benefits, we stated:

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.]

See also, Esposito v. Police & Fireman's Retirement System, 358 N.J. Super. 112, 120 (App. Div. 2003); Angolia v. Board of Trustees, Public Employees' Retirement System, 359 N.J. Super. 552, 557 n 1 (App. Div. 2003).

Here, in reaching his decision that petitioner's fall did not qualify as a great rush of force or uncontrollable power, such as "gravity where the employee's fall is from a great height," the ALJ determined that "[t]he distance that petitioner fell from the point of impact with the log was the same distance as if petitioner had fallen to the ground or to a floor." Although the ALJ acknowledged that the petitioner had also fallen an estimated distance of four to five feet from the top of the log to the bottom of the ravine, the ALJ did not consider that fact in determining whether petitioner had fallen from such a great height as to qualify under the third prong of Kane. Implicitly, the ALJ treated petitioner's fall onto the log and his being catapulted from the log to the bottom of the ravine as two separate incidents, with the injury caused solely by the first incident. It is here that we part company with the ALJ and the Board. The incident, causing the injury, did not terminate when petitioner struck the log, but rather continued as a single event until he came to a rest at the bottom of the ravine. We conclude that such gravitational force qualifies under the third prong of Kane. Quigley, supra, 231 N.J. Super. at 218; Esposito, supra, 358 N.J. Super. at 120. Accordingly, we reverse.

 
Reversed.

Flores v. Bd. of Trustees, 287 N.J. Super. 274 (App. Div. 1996).

Nelson v. Bd. of Trustees, Police and Fireman's Retirement System, 92 N.J.A.R. 2d 32 (1993).

Although the record does not contain a statement of the total distance that petitioner fell, petitioner argues that the distance was approximately seven and one-half feet to eight feet. Petitioner's estimate is based on his height of five feet, eight inches; the mechanics of the fall causing him to impact the log horizontally after his legs came out from under him, and the additional four and one-half feet to five feet from the top of the log to the base of the ravine. This estimate was not refuted by the Board.

(continued)

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A-2645-05T3

 

September 26, 2006