DAVID G. DEMATTEO v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3155-05T53155-05T5

DAVID G. DEMATTEO,

Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent.

________________________________________________

 

Submitted October 18, 2006 - Decided November 8, 2006

Before Judges Winkelstein and Baxter.

On appeal from a Final Administrative

Determination of the Board of Trustees,

Police and Firemen's Retirement System,

3-10-31115.

Mets & Schiro, attorneys for appellant,

(Roosevelt Porter, on the brief).

Stuart Rabner, Attorney General,

attorney for respondent, (Patrick DeAlmeida,

Assistant Attorney General, of counsel;

Christine Lucarelli, Deputy Attorney

General, on the brief).

PER CURIAM

Petitioner, a retired Senior Corrections Officer at the Middlesex County Adult Correction Center (Correction Center), appeals from the denial of his application for accidental disability benefits by the Board of Trustees, Police and Firemen's Retirement System (Board). Although there was no dispute that petitioner was totally and permanently disabled, and that his disability was a direct result of a December 11, 2002 incident at the Correction Center, the Board, in a written decision, concluded that the incident was not a "traumatic event" within the meaning of N.J.S.A. 43:16A-7, as interpreted by Kane v. Board of Trustees, 100 N.J. 651, 660 (1985). In light of its finding that petitioner had failed to satisfy the required standard, the Board instead granted petitioner an ordinary disability pension. In so finding, the Board reversed the decision of an administrative law judge who had ruled to the contrary. We affirm the Board's decision.

I

On December 11, 2002, petitioner was on duty in the receiving and discharge area of the Correction Center with the responsibility of processing newly admitted inmates. One inmate was distinctly uncooperative. Not only did he refuse to turn and face the wall for a pat-down search, but he also deliberately moved his fingers sideways on the fingerprint machine, thus necessitating a repeat of the fingerprinting process. The inmate's antagonistic attitude escalated when he learned he would be forced to surrender his boots. He became "loud and verbally aggressive," and "stormed over" to the property desk without being told to do so, where he created such a "ruckus" that petitioner decided that handcuffing the inmate was the only way to control him. The inmate did not acquiesce in petitioner's effort to handcuff him, instead turning toward petitioner in an "aggressive manner." Realizing that a "physical altercation was . . . imminent," petitioner pinned the inmate against the wall, and "after a struggle" was able to place handcuffs on him.

Petitioner began to escort the inmate to the next stop, which was the medical unit located forty or fifty feet down the hallway, at which point the inmate "became violent." Petitioner described how he increased his grip on the inmate, stating that he maintained a "tight grip" because as they proceeded down the hallway "it was hard for me to gain control of him. He was thrashing about trying to spin on me, like turn towards me, and that forced me to grab a better grip of him." He further stated that as they proceeded down the hallway, the inmate "was really like, basically pulling me down the hallway," "making threatening remarks to me."

Petitioner described how he placed one hand on the inmate's handcuffs and the other on the inmate's left shoulder and tried to "secure him close to me." It was at that point that the inmate suddenly engaged in the conduct that led to petitioner's injuries:

A. And at that point, that's when he purposely, without instant (sic), without any warning, just took his shoulder, went forward and downward in an attempt to flip me . . . . He just went forward and dipped all at once, like a hip throw. Like he hip threw me down. I left my feet.

Q. Now how far did you go with him, as he bent over . . . .

A. I left my feet and was actually on his back, ready to be flipped over.

Q Now, at that point in time was your hand still on his shoulder?

A Yes.

Q At any point in time was your hand around his neck?

A No.

Q It was just on his shoulder?

A Yes.

Q And the other hand was--

A On his cuffed hand.

Q And when did you release your grip?

A When I got in the midst of the flip, I felt a sharp, stabbing pain, and that actually caused me to release my grip.

Q [W]hat sort of pain did you notice?

A A sharp, stabbing pain right in my lower back. Almost like I was stabbed with a knife.

Q [A]nd that was before you released your grip?

A Yes. That's what caused me to release my grip.

Q And what happened after you released your grip?

A He went to the ground faster than, I guess, he had expected and I went right on top of him.

Q You fell on top of him?

A Yes.

Q How did -- did you fall on top of him on your stomach or on your bottom?

A [R]ight on my stomach.

Other officers came to petitioner's aid at that point. On cross-examination, petitioner explained that had he not released his grip on the inmate, he would have been flipped over the inmate's body and would probably have hit his head, but because he released his grip, he landed on top of the inmate.

The Board found that the December 11, 2002, incident was not a "traumatic event" as required by N.J.S.A. 43:16A-7. The Board did find, however, that petitioner was disabled from his regular and assigned duties as a Corrections Officer. As a result, the Board awarded petitioner an ordinary disability retirement. Petitioner then appealed that adverse decision to the Office of Administrative Law. After conducting a hearing, an administrative law judge held that the incident was a "traumatic event" that qualified petitioner for accidental disability retirement. The Board filed exceptions to the initial decision. On December 13, 2005, the Board issued findings of fact and conclusions of law which rejected the administrative law judge's disposition. The Board determined that petitioner had failed to satisfy the requirements of Kane, supra, 100 N.J. at 651.

The Board's ruling that the incident was not a "traumatic event," and therefore did not qualify for accidental disability benefits, must be affirmed unless its decision "violates express or implied legislative policies," fails to "contain substantial evidence to support (its) findings or applies the legislative policy to the facts in such a manner that its "conclusion . . . could not reasonably have been made" on the facts before it. Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995). An appellate court will not reverse the decision of an administrative agency unless it is arbitrary, capricious or unreasonable. In re Taylor, 158 N.J. 644, 657 (1999).

II

N.J.S.A. 43:16A-7(1) provides, in pertinent part, that in order to be eligible for accidental disability retirement, a member of the Police & Fireman's Retirement System must be disabled as a direct result of a "traumatic event." The Court established in Kane a three-prong test that a petitioner must satisfy in order to prove that a "traumatic event" occurred: (1) the petitioner's injuries must not have been induced by the stress or strain of the normal work effort; (2) the petitioner must have met involuntarily with the object or matter that was the source of the harm; and (3) the source of the injury itself must have been a great rush of force or uncontrollable power. Kane, supra, 100 N.J. at 663.

The Board determined that petitioner failed to satisfy both the first and the third prongs of the Kane test. With regard to the first prong, the Board found that petitioner failed to demonstrate that his injuries were not induced by the stress or strain of the normal work effort. The Board pointed to the fact that "Correction Officers' duties are dangerous. If Correction Officers' duties were not dangerous, they would not meet the criteria for enrollment in the PFRS in the first instance."

Although we are not bound by the Board's legal conclusions, we conclude that its finding that the first prong was not satisfied is consistent with the Supreme Court's decision in Gable v. Board of Trustees, 115 N.J. 212 (1989). In Gable, the Court analyzed several violent incidents, concluding that they exceeded the "stress or strain of the normal work effort." Id. at 224. An officer was struck in the back with a metal chair after an inmate had thrown powder in his face. Id. at 215-16. In a second incident, the same officer was kicked in the chest, thereby propelling him into a concrete wall. Id. at 216. In a consolidated case, a different officer was deemed to have satisfied the first prong when his injuries were the result of an unruly inmate dragging him down a flight of stairs. Id. at 218. All of the incidents in Gable were found to be beyond the pale of normal stress and strain of the job. Id. at 224-25.

Here, the Board found that petitioner's injury arose as part of the routine "scuffles" with inmates that characterize such a job. The Board, therefore, concluded that petitioner failed to satisfy the first prong of Gable. That finding is justified in light of two facts: (1) involvement with the inmate was not sudden, but instead gradually escalated as he and the inmate proceeded down the hallway, and (2) petitioner was not "blindsided" by a sudden attack, but was instead subjected to a continual barrage of twisting and turning. We cannot say that the Board's application of the facts to the first prong of the test articulated in Kane was unreasonable, in light of the sudden and far more vicious conduct presented in Gable. Stated differently, the Board's finding that petitioner was subjected to an incident induced by the "stress and strain of the normal work effort" was not unreasonable.

With respect to the third prong of the Kane test, the Board found that petitioner could not have been subjected to "a substantial or great rush of force" because when the inmate dipped forward, petitioner was able to hold onto the inmate rather than let go. The Board cited three other factors in support of its conclusion that there was not a great rush of force: (1) when the incident occurred, the inmate was restrained in that he was handcuffed; therefore, petitioner was not the target of an unconstrained out-of-control inmate; (2) petitioner was aware that he was dealing with an uncooperative and verbally aggressive inmate; thus, he was not blindsided nor the target of an unprovoked surprise attack from the inmate; and (3) petitioner was not struck by the inmate.

In support of its conclusion that the third prong was not satisfied and that petitioner had not been subjected to a great rush of force, the Board noted that the subject incident was similar to Mazza, supra, 143 N.J. at 25. In Mazza, the Supreme Court affirmed the Board's conclusion that a petitioner's injury from sudden twisting was not the result of a "great rush of force." (Officer, who was injured when his 1000 pound horse bucked and reared, lifting and twisting officer's body in the saddle, did not sustain an injury as a result of a "great rush of force" or "uncontrollable power."). Ibid.

The Board's reliance on Mazza as support for its conclusion that petitioner was not subjected to a "great rush of force" was appropriate, in light of the similarities between the two cases. Indeed, the sudden dipping of the inmate's shoulder that lifted the petitioner off his feet seems to us to have been no more severe than the bucking and twisting of the officer's horse in Mazza, which the Court found failed to satisfy the third prong. Id. at 24-25. Nor was the inmate's conduct, here, a "rush" of force; it was instead an escalation. Likewise, it was not an instance of "uncontrollable power" because petitioner never lost control of the inmate.

In ultimately concluding that the petitioner had failed to satisfy both the first and third prongs of the Kane test, the

Board further reasoned that while the subject incident "was somewhat volatile," it lacked the suddenness and violence necessary to satisfy the "traumatic event" requirement of N.J.S.A. 43:16A-7. Differentiating the subject incident from the type of violence that would qualify for enhanced benefits, the Board noted:

[M]r. DeMatteo knew he was dealing with an uncooperative and resistant inmate. Mr. DeMatteo was thrust but not struck by the inmate, and Mr. DeMatteo was able to maintain contact with the inmate. Accordingly, the Board finds that no traumatic event occurred by reason of Mr. DeMatteo's failure to qualify under either the first or third prongs of the traumatic event test.

Because the Board's conclusion was consistent with applicable law, we affirm. In re Taylor, supra, 158 N.J. at 657.

 
Affirmed.

(continued)

(continued)

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A-3155-05T5

November 8, 2006