JAMES HENDERSON - v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6176-08T26176-08T2

JAMES HENDERSON,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

________________________________

 

Argued: March 3, 2010 - Submitted:

Before Judges Payne and C.L. Miniman.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Depart ment of Treasury, Agency Docket No. PERS #2-10-225355.

Frank M. Crivelli argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli and Donald C. Barbati, on the brief).

Danielle P. Bradus, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attor ney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Bradus, on the brief).

PER CURIAM

Petitioner James Henderson (Henderson) appeals the final agency decision of respondent Board of Trustees (the Board) of the Public Employees' Retirement System (PERS) denying his application for accidental disability retirement (ADR) benefits under N.J.S.A. 43:15A-43. We reverse and remand for award of ADR benefits to Henderson.

Henderson applied for ADR benefits on June 25, 2007. The Board determined at its November 7, 2007, meeting that Henderson was totally and permanently disabled from the performance of his regular and assigned job duties as a result of injuries that occurred on April 7, 2003, and June 13, 2006. It found that the April 7, 2003, injuries were sustained as a result of a "trau matic event" under N.J.S.A. 43:15A-43 and relevant case law. However, it found that the June 13, 2006, injuries did not result from a "traumatic event" because the event on June 13, 2006, "was not undesigned and unexpected and the event was not caused by an external circumstance." Because both events had to be considered "traumatic events" in order to qualify for ADR benefits, the Board denied Henderson's application and awarded him ordinary disability retirement benefits effective July 1, 2007.

On December 17, 2007, Henderson timely appealed the denial of ADR benefits. The Board referred the matter to the Office of Administrative Law, and it was assigned to an Administrative Law Judge (ALJ) for a hearing, which took place on November 14 and 17, 2008. The ALJ rendered her initial decision on May 5, 2009. The parties had stipulated to the following facts: Hen derson was born on July 5, 1961. He began working for the Princeton Regional Schools in Mercer County as a maintenance technician on July 1, 1990, and was employed as supervisor of buildings and grounds for the Mercer County Special Services School District when he filed his application for ADR benefits. He was injured on April 7, 2003, when he was pinned between a sport utility vehicle (SUV) and a snow blower, and injured again on June 13, 2006, when he removed an access panel from the compressor compartment of an air-conditioning unit.

The ALJ found the following facts, most of which were not in dispute, from the evidence presented at the hearing by Hen derson; his examining physician, Dr. David Weiss; and the Board's examining physician, Dr. Zohar Stark. Henderson had been enrolled in PERS since 1990. As supervisor of buildings and grounds, Henderson "was required to prepare purchase orders and requisitions, supervise custodial staff and maintain the physical plant."

On April 7, 2003, Henderson was using a snow blower in the school parking lot, a regular and assigned duty. While doing so, he was struck by an SUV and pinned between it and the snow blower. The accident pushed his spine forward, and he suffered a serious injury to the lumbar region of his spine. He was seen at Robert Wood Johnson University Hospital and then treated by Dr. Marc Levine at Trenton Orthopedic Group. After reviewing X-rays, an MRI, and a CT-scan, Dr. Levine diagnosed him with grade one spondylolisthesis at L5-S1 and a bulging disc at L5-S1. There was also age-related disc desiccation at L3-L4 and L4-L5. Dr. Levine supervised Henderson's physical therapy and recommended surgery when he was not improving. "Henderson declined surgery, despite Dr. Levine's warning that without surgery his condition would likely deteriorate."

Henderson was out of work on disability for some time. When he returned to work, he was placed on light duty, but experienced a tremendous amount of pain in his back and down his left leg, pain in his neck, and headaches. He returned to full duty in July 2003 and performed all of his assigned duties except for those requiring heavy lifting, such as off-loading trucks. "He returned to work because he is the sole provider for his family of four, which includes two special needs children." When his pain flared, "he would walk it off."

On June 13, 2006, Henderson, who was still in daily con tinuous pain, was repairing an air-conditioning unit in a class room that was having temperature-control problems. The unit had a two-foot-square panel weighing fifteen to twenty pounds, which he unscrewed and removed. "When he turned slightly to set the unit down, he immediately felt a click in his low back and experienced a sharp pain." He kept working until the end of his shift despite the pain.

The pain worsened when he returned home, and he awoke the next morning with increased pain and stiffness. The pain was the same as that he had experienced since 2003, only worse. Nonetheless, he went to work for three more days with ever-increasing pain. He then saw a doctor, who examined him and prescribed pain medication, muscle relaxants, and anti-inflammatory medication.

Henderson was eventually referred to Dr. Levine, who ordered physical therapy. Dr. Levine again recommended surgery, and Henderson sought a second opinion from Dr. Tydings, who con curred. On November 1, 2006, Dr. Tydings performed complex spinal-fusion surgery on Henderson, who then received post-opera tive physical therapy and rehabilitation. Henderson never returned to work.

The ALJ found that Dr. Weiss described the 2006 injury as a "'tortional and axial' injury in which one picks up and twists." An MRI conducted on June 29, 2006, "revealed grade 1 listhesis of L5-S1 secondary to L5 spondolysis, a disc bulge at L3-L4 and disc herniation at L4-L5." A CT-scan on October 4, 2006, "revealed a bilateral L5 spondolysis with a grade 1 spondylolis thesis and disc pathology at L3-L4, L4-L5 and L5-S1." Dr. Weiss opined that

Henderson was 100 percent disabled in terms of being able to perform his previous employment. The competent producing factor was the ini tial event of April 7, 2003, at which time he sustained traumatic spondylolisthesis, and the subsequent aggravation and accelera tion of the lumbar spine pathology in the June 13, 2006, event, which led to the com plex surgery and medication of class II opioids.

The ALJ described Dr. Stark's testimony respecting his exami nation of Henderson, who told the doctor that his hands and lower back were numb and that he had radiating pain, although no local back pain. Henderson had a hard time getting up from the examination table and walked with a limp. Dr. Stark opined:

Henderson was disabled because of degenera tive disease of the lower back and the injury sustained on June 13, 2006. The places that he had injured in the first accident were the same places in which he had injury after the second. The second accident put him over the edge. He agreed with Dr. Weiss' diagnosis and conclusion and shares his opinion. The prior records from Henderson's treating physicians referenced degenerative changes. The accident did not cause spondylolisthesis. He testified that, in summary, the disability is caused by degeneration coupled with the injuries sustained in June 2006 and April 2003.

On cross-examination, Dr. Stark acknowledged that he did not mention degenerative disc disease in his report. Rather, he said that the disability was directly related to the accidents. Nonetheless, Dr. Stark testified that his diagnosis was degen erative disc disease from the first accident and that Hender son's disability was a result of the June 13, 2006, accident "that put him over the edge."

The ALJ found that Henderson's 2003 injury "was aggravated and accelerated by the June 2006 accident in which Henderson, in attempting to perform an ordinary task, incurred an extraordi nary consequence, leaving him permanently disabled." She found that Henderson "is permanently and totally disabled from events occurring during and as a result of his regular duties without any negligence on his part and he is physically incapacitated from performing his usual or any other dut[ies]."

The ALJ concluded that Henderson, thus, satisfied prongs one, three, four, and five for determining whether an event was traumatic, as identified in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), leaving only the issue of prong two, which requires a disabled worker to prove permanent and total disability as a direct result of an identifiable, undesigned, and unexpected traumatic event caused by a circumstance exter nal to the member, that is, "not the result of pre-existing disease that is aggravated or accelerated by the work."

As to that prong, the Board urged that Henderson's 2006 injury was the result of preexisting disease aggravated by work. The ALJ then discussed governing case law and found that Henderson "had no preexisting disease; he suffered an injury as a result of a 'traumatic event' in April 2003, but his permanent disabil ity did not manifest immediately." It only became manifest when the 2003 injury was aggravated and accelerated by the 2006 incident.

The ALJ found no dispute existed with respect to whether the 2006 incident was identifiable as to time and place. As to whether the event was undesigned and unexpected and caused by a circumstance external to the member, she found:

In keeping with the Russo[] analysis, looking at the acts preceding Henderson's 2006 injury, nothing unexpected or unfore seen occurred. However, Henderson did not expect that the act of lifting and setting down the access panel, which was not of excessive weight, while turning, would cre ate the injury that it did. Henderson's injury was an unanticipated, extraordinary and unusual consequence of an intended external event. The external circumstance was the actual lifting and setting down of the panel while turning.

The ALJ also addressed the Board's claim that Henderson's injury was not the direct result of a traumatic event because he had a preexisting disease. Finding Still v. Board of Trustees of the Public Employees' Retirement System, 144 N.J. Super. 103 (App. Div. 1976), certif. denied, 73 N.J. 46 (1977), controlling, she concluded that Henderson's disability was a direct result of the two traumatic events, and he did not have a preexisting disease or condition prior to the 2003 traumatic event. She found that the Richardson Court never intended preexisting diseases or conditions to apply to injuries caused by a previous traumatic event. She, thus, concluded that "Henderson's disability resulted from the combined effects of the two job-related acci dents in April 2003 and June 2006 [and] that the two accidents were 'traumatic events' by statute and under Richardson." As a result, she found that Henderson was entitled to ADR benefits.

On May 18, 2009, the Board filed exceptions to the initial decision, and Henderson filed a reply on May 20, 2009. By letter dated June 18, 2009, the Board notified Henderson's attorney that it had considered the exceptions and the reply. Thereafter, it "voted to reject the recommendation of [the ALJ and] affirmed its original determination that Mr. Henderson was not entitled to [ADR] benefits."

On July 16, 2009, the Board issued its findings of fact and conclusions of law to Henderson's attorney. It found that the ALJ's recitation of the facts was correct, but explained that her conclusions were "based on insufficient credible evidence in the record" for several reasons.

First, the Board found the ALJ wrongly concluded that the 2006 injury was "'an unanticipated, extraordinary and unusual consequence of an intended external event.'" This was so because she incorrectly found that Henderson "did not expect the act of lifting and setting down the access panel, which was not of excessive weight, while turning, would create the injury that it did." The Board noted, "Simply because the injury was not foreseen, the ALJ erroneously concludes that the injury was an unanticipated, extraordinary and unusual consequence of the event." This, the Board asserted, discounted or ignored the fact that back strains can occur "while lifting an object, even if it is not of an excessive weight." It concluded, "The test of Russo and Richardson is not whether the individual expected the consequence, but whether it is unusual in common experi ence." The Board found there was no evidence in the record "to support that such an injury is unusual in common experience." As a result, it concluded that the 2006 incident was not "undesigned and unexpected."

Second, the Board determined that the ALJ reached an incor rect legal conclusion that the preexisting back condition from the 2003 accident was not intended by Richardson "to be included in the term 'preexisting disease' for purposes of whether an individual qualifies for an [ADR]." Specifically, the Board concluded that the ALJ had misconstrued Still and Gerba and mis applied Petrucelli. It found that none of the cases on which the ALJ relied actually supported a conclusion that Henderson had no preexisting disease or condition in 2006.

The Board concluded:

[The ALJ] incorrectly concludes that [p]etitioner's disability was the "direct result" of two traumatic events. . . . While [the ALJ] states that [p]etitioner did not have a preexisting condition prior to April 2003 and that fact is not disputed, it does not negate the fact that the same test applies to subsequent accidents. The ALJ then states that the Richardson [C]ourt did not intend "preexisting disease" and "preex isting condition" to encompass injuries caused by a previous traumatic event. . . . However, there is no language in Richardson to support this conclusion. Rather, in Richardson, our Supreme Court stated that "the statute requires a happening external to the worker (not pre-existing disease alone or in combination with work) to war rant accidental disability benefits." 192 N.J. at 202. The Court went on to state "that if a member's disability is the end result of a pre-existing condition plus work effort, the member will not qualify for accidental disability benefits. In other words, work effort alone, usual or unusual, that aggravates or accelerates pre-existing disease is not a traumatic event." Id. at 203 (internal citations omitted). While [the ALJ] states that to deny [p]etitioner an [ADR] would punish him for returning to work after the first accident when he had no choice but to do so, this is not based on the facts in the record.

Simply stated, the facts indicate that [p]etitioner suffered a traumatic event on April 7, 2003, which did not disable him. There is no medical evidence in the record that supports the conclusion that the April 7, 2003 incident caused the disability. In fact, both Dr. Weiss and Dr. Stark testified that he was not disabled until after the June 13, 2006, event which aggravated and accelerated his pre-existing lower back pathology.

N.J.S.A. 43:15A-43 mandates that a mem ber of the PERS seeking an [ADR] benefit be permanently and totally disabled "as a direct result of a traumatic event." The fact remains that under Richardson, "work effort alone, usual or unusual, that aggra vates or accelerates a preexisting disease is not a traumatic event." 192 N.J. at 203.

For the foregoing reasons, the ALJ's decision that [p]etitioner is entitled to [ADR] benefits was based on insufficient credible evidence. Based on the evidence presented at the hearing, the incident of June 13, 2006 was not undesigned and unex pected and was not caused by circumstances external to the member as defined in Richardson. Rather, [p]etitioner's disabil ity was the result of pre-existing disease alone or pre-existing disease that was aggravated or accelerated by the work. Petitioner's disability did not directly result from the combined effect of the inci dents of April 7, 2003 and June 13, 2006, as the incident of June 13, 2006 was not a direct result of a traumatic event as defined by N.J.S.A. 43:15A-43 and case law. Therefore, the Board rejects the Initial Decision of the ALJ and hereby denies [p]etitioner's application for accidental disability.

This appeal followed. Henderson asserts that the Board improperly rejected the ALJ's conclusions of law and her ultimate recommendation to the Board to award ADR benefits to him. He contends that the Board's conclusion that the June 13, 2006, incident was not undesigned and unexpected conflicts with existing law and must be rejected. Finally, he urges that we should uphold the ALJ's legal conclusion that the term "preexisting disease or condition" does not apply to the sequelae of an earlier traumatic injury, because that conclusion is well supported by the statute and existing case law.

The Board, on the other hand, urges that its denial of ADR benefits was correct because the June 13, 2006, incident was not undesigned and unexpected. Furthermore, the June 13, 2006, incident was not caused by external circumstances. Thus, it urges that its decision to deny ADR benefits was correct and should be upheld.

We begin our consideration of this appeal with the judicial role in reviewing decisions of administrative agencies, which is restricted to the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) 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.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citations omitted).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). 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. Kordulak 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. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).

Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Although we recognize that deference is gener ally given to an administrative agency charged with interpreta tion of the law, we are not bound by the agency's legal opin ions." Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999)).

The governing statute provides in pertinent part:

A member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application or the application of one acting in his behalf, be retired by the board of trustees, if said employee 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, on an accidental disability allowance. . . .

 
The application to accomplish such retirement must be filed within five years of the original traumatic event, but the board of trustees may consider an applica tion filed after the five-year period if it can be factually demonstrated to the satis faction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to circumstances beyond the control of the member.

Permanent and total disability result ing from a cardiovascular, pulmonary or musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.

[N.J.S.A. 43:15A-43 (emphasis added).]

"Pension statutes are to be liberally construed to effectuate their remedial intent." Hillman v. Bd. of Trs., Pub. Employees' Ret. Sys., 109 N.J. Super. 449, 455 (App. Div. 1970), overruled in part on other grounds, Cattani v. Bd. of Trs., Police & Firemen's Ret. Sys., 69 N.J. 578, 585 (1976); see also Smith v. Consol. Police & Firemen's Pension Fund Comm'n, 149 N.J. Super. 229, 232 (App. Div.) (citations omitted), certif. denied, 75 N.J. 8 (1977).

Prior to the 1966 amendments to this provision, L. 1966, c. 67, 4, the statute permitted award of ADR benefits where "the natural and proximate cause of such disability was an accident met in the actual performance of duty." L. 1959, c. 158, 1. We had construed the 1959 version of N.J.S.A. 43:15A-43 "with regard to a person suffering from a preexisting progressive disease, who became disabled, [by holding] that the requirement of causation was satisfied by showing that the actual work effort, whether or not unusual, materially contributed to the precipitation, aggravation or acceleration of the underlying disease." Cattani, supra, 69 N.J. at 583-84 (citing Fattore v. Police & Firemen's Ret. Sys. of N.J., 80 N.J. Super. 541 (App. Div.), certif. denied, 41 N.J. 245 (1969), superseded in part by statute, L. 1979, c. 283, 3). The Fattore holding imported worker's compensation case law, Dwyer v. Ford Motor Co., 36 N.J. 487 (1962), superseded in part by statute, L. 1979, c. 283, 3, and opened ADR benefits to persons suffering heart attacks during the course of employment. Richardson, supra, 192 N.J. at 197-98. Fattore led directly to the amendment of N.J.S.A. 43:15A-43, which required that permanent and total disability be "a direct result of a traumatic event." Id. at 199. Similar amendments were made to other ADR benefit provisions. Id. at 199 n.5.

Initially, the Supreme Court and we construed the amendments to preclude application of Fattore and Dwyer to claims for ADR benefits. See Gerba, supra, 83 N.J. at 185-87 (holding amendment to extricate ADR benefits from influence of workers' compensation law; disability caused by preexisting condition and work effort does not qualify for ADR benefits); Korelnia v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 83 N.J. 163, 169-70 (1980) (holding that disability must "be the 'direct result' of a traumatic event" and "not be the result of a 'cardiovascular, pulmonary or musculoskeletal condition which was not a direct result of a traumatic event'" (quoting N.J.S.A. 43:15A-43)); Cattani, supra, 69 N.J. at 586 (holding "'traumatic event'" to be "a mishap or accident involving the application of . . . external force to the body[;] . . . work effort alone[,] whether unusual or excessive, [not] a traumatic event, even though it may have aggravated or accelerated the preexisting disease"); Russo, supra, 62 N.J. at 152-54 (accident and traumatic event interchangeable terms, as an accident can be found "either in an unintended external event or in an unanticipated consequence of an intended external event if that consequence is extraordinary or unusual in common experience[;] [i]njury by ordinary work effort or strain to a diseased heart . . . is not an extraordinary or unusual consequence in common experience"); Still, supra, 144 N.J. Super. at 106-07 (ADR benefits awarded where "'the disability directly resulted from the combined effect of a traumatic event and a preexisting disease'") (quoting Cattani, supra, 69 N.J. at 586); Hillman, supra, 109 N.J. Super. at 460-61 ((a) traumatic event must be "identifiable as to time and place," (b) injury or disability must have "resulted directly from it," and (c) "event was undesigned, unexpected and unusual").

The amendment, however, as construed in Kane v. Board of Trustees, Police & Firemen's Retirement System, 100 N.J. 651, 663 (1985), led to inconsistent results. Richardson, supra, 192 N.J. at 208. The Kane Court, dissatisfied with the Cattani standard, "enunciated a new three-part test for traumatic event." Id. at 205. Under that standard, a worker was required to

demonstrate (1) that his injuries were not induced by the stress or strain of the normal work effort; (2) that he met involuntarily with the object or matter that was the source of the harm; and (3) that the source of the injury itself was a great rush of force or uncontrollable power.

[Kane, supra, 100 N.J. at 663.]

The Richardson Court, commenting on this standard, observed that by "coining the term 'great rush of force or uncontrollable power' and making it a prong of the test, we transformed what in Cattani had been one example of a traumatic event into the sole example." Richardson, supra, 192 N.J. at 205.

The Supreme Court thereafter applied the Kane standard to applications for ADR benefits in Maynard v. Board of Trustees of the Teachers' Pension & Annuity Fund, 113 N.J. 169, 175 (1988) (slip-and-fall accident not traumatic event because it did not involve "a great rush of force or uncontrollable power" as "[a]ny gravitational force that is generated by the fall is not 'great' as that term was used in Kane"), overruled in part by Richardson, supra, 192 N.J. at 212; and Ciecwisz v. Bd. of Trs., Police & Firemen's Ret. Sys., 113 N.J. 180, 182 (1988) (slip-and-fall accident not traumatic event because it did not involve "'a great rush of force or uncontrollable power'") (quoting Kane, supra, 100 N.J. at 663), overruled in part by Richardson, supra, 192 N.J. at 212; but see Gable v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 115 N.J. 212, 222 (1989) (finding falls caused by bodily contact with others involved a great rush of force or uncontrollable power).

We then began to "grapple with the concept of 'gravitational force,' resulting in veritable jurisprudential chaos both from the perspective of outcome and rationale." Richardson, supra, 192 N.J. at 206-09 (citing Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 394 N.J. Super. 478, 481, 482 (App. Div. 2007)); Pino v. Bd. of Trs., Pub. Employees' Ret. Sys., 309 N.J. Super. 112 (App. Div.), certif. denied, 156 N.J. 380 (1998); Fawcett v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 307 N.J. Super. 378 (App. Div. 1998); Barney v. Bd. of Trs., Police & Firemen's Ret. Sys., 238 N.J. Super. 556 (App. Div.), certif. denied, 122 N.J. 168 (1990); Quigley v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 231 N.J. Super. 211, 219 (App. Div.), certif. denied sub nom, Hilsman v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 117 N.J. 153 (1989); Duignan v. Bd. of Trs., Pub. Employees' Ret. Sys., 223 N.J. Super. 208 (App. Div. 1988).

We criticized the Kane standard and urged that it should be reevaluated. Dennis v. Bd. of Trs., Pub. Employees' Ret. Sys., 394 N.J. Super. 484, 492 (App. Div. 2007) (urging "a re-evaluation of Kane, or at least a relaxation of its standards to include situations outside the strictures of its tripartite test"); Caminiti, supra, 394 N.J. Super. at 482 (the "standard provides no uniformly workable basis for confidently predicting the outcome in any typical case"). Commentators also urged that "'Kane and its progeny should be abandoned.'" Richardson, supra, 192 N.J. at 209 (quoting Solomon Metzger, Public Sector Accidental Disability Pensions in New Jersey: The Law of Dramatic Events, 31 Rutgers L.J. 491, 508-09 (2000)). The Supreme Court agreed. Id. at 210.

The Court concluded that Hillman, Russo, Cattani, Gerba, Korelnia, and Gable were correctly decided, id. at 211-12, and that Kane, Maynard, and Ciecwisz were not, ibid., finding that "in amending the statute, the Legislature sought to prohibit the grant of accidental disability benefits to a member disabled by a pre-existing condition, alone or in combination with work effort, no more and no less," id. at 210. The Court "return[ed] to the Cattani approach[] and reinterpret[ed] Kane so that the 'great rush of force or uncontrollable power' notion is simply one example of the kind of happening that will satisfy the traumatic even standard, but not the only example." Id. at 212 (overruling "the gravitational analysis introduced in Maynard and Ciecwisz").

Under that shifted paradigm, a trau matic event is essentially the same as what we historically understood an accident to be an unexpected external happening that directly causes injury and is not the result of pre-existing disease alone or in combina tion with work effort. Thus, to obtain accidental disability benefits, a member must prove:

1. that 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; and

 
5. that the member is mentally or physically incapacitated from per forming his usual or any other duty.

 
Importantly, not every case will require a great rush of force. Indeed, no particular amount of force is necessary, and no gravitational force analysis is impli cated in the traumatic event standard. Recapping, it seems clear to us that the Legislature amended the accidental disabil ity statutes to return the definition of accident to its pre-Fattore state, no more and no less. Thus, a member who is injured as a direct result of an identifiable, unan ticipated mishap has satisfied the traumatic event standard.

[Id. at 212-13.]

We subsequently applied Richardson's five-part test in one reported decision, In re Crimaldi, 396 N.J. Super. 599 (App. Div. 2007). The Supreme Court also did so in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008). In Crimaldi, the parties agreed that the plaintiff suffered a "traumatic event" under Richardson and that there was a "delayed manifestation" of the disability. Crimaldi, supra, 396 N.J. Super. at 604. The issue before us was when the disability manifested and how long thereafter the plaintiff had to file his application for ADR benefits. Ibid. We agreed with the Board that where the application had not been filed within the five years permitted by statute, it had to be filed within a reasonable period thereafter. Id. at 605-06. However, we remanded for "a more fact-sensitive analysis" respecting when the delayed manifestation actually occurred. Id. at 607.

In Patterson, the Court was presented with claims for ADR benefits based on permanent mental disabilities triggered by mental stressors. Patterson, supra, 194 N.J. at 33. It concluded that such a disability was qualified for ADR benefits if it satisfied the Richardson standards and, in addition:

The disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person. By that addition, we achieve the important assurance that the traumatic event posited as the basis for an accidental disability pension is not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.

[Id. at 33-34.]

Turning to the facts of this case, it is undisputed that Henderson was seriously injured on April 7, 2003, as the result of a traumatic event. He was unable to work for some period of time, then returned to light duty for a while, and then full duty in July 2003. Before he returned to work, Dr. Levine recommended complex back surgery. Henderson declined this medical treatment because he needed to support his family. However, Henderson was never able to perform all of the duties of his position, as he could not do any heavy lifting, such as off-loading trucks. Throughout the entire period from April 7, 2003, to June 13, 2006, Henderson was in continuous pain. Had he elected in 2003 to undergo the back surgery recommended by Dr. Levine and had the outcome he suffered in 2006 occurred in 2003, there can be no doubt that he would have satisfied all five prongs of Richardson, supra, 192 N.J. at 212-13.

Importantly, the ALJ found that Dr. Levine warned Henderson in 2003 "that without surgery his condition would likely deteriorate." Dr. Weiss opined that the 2003 accident was "[t]he competent producing factor" and that the 2006 event aggravated and accelerated the lumbar spine pathology. The ALJ found that the 2003 injury was aggravated and accelerated by Henderson's attempt in 2006 to perform an ordinary task within the scope of his duties and responsibilities. This finding is supported by substantial, credible evidence in the record.

It was at this point in the ALJ's decision that she began to analyze whether the 2006 incident was a traumatic event under Richardson and concluded that it was. We agree with the Board that her application of Richardson to the facts constituted legal error. Although the event was certainly identifiable as to time and place, it was not "undesigned and unexpected" because Henderson did exactly what he intended to do remove the cover of the air-conditioning unit and set it to one side as he repaired the unit. Furthermore, it was not caused by a circumstance external to Henderson he was the actor moving the panel.

However, we disagree with the Board that the ALJ committed legal error in concluding that the 2003 back condition was not a "preexisting disease or condition" under Richardson. The term "preexisting disease or condition" has been uniformly applied to bodily diseases or conditions that were not caused by a "traumatic event" occurring while the plaintiff was performing his or her usual duties. See, e.g., Gerba, supra, 83 N.J. at 186 ("Where there exists an underlying condition such as osteoarthritis which itself has not been directly caused, but is only aggravated or ignited, by the trauma, then the resulting disability is, in statutory parlance, 'ordinary' rather than 'accidental' and gives rise to 'ordinary' pension benefits." (emphasis added)); Korelnia, supra, 83 N.J. at 171-72 (remanded for determination of whether disability resulted directly from traumatic event rather than from "underlying pathology of his spine"); Cattani, supra, 69 N.J. at 581, 586 (basilar artery occlusion and hyperlipidemia are preexisting diseases; "work effort alone . . . cannot be considered a traumatic event, even though it may have aggravated or accelerated the preexisting disease"); Petrocelli, supra, 211 N.J. Super. at 289 ("severe trauma, superimposed on a nonsymptomatic structural [spinal] anomaly, which triggered a symptom complex resulting in total disability" qualifies member for ADR benefits); Still, supra, 144 N.J. Super. at 106-08 ("long-standing right lumbar scoliosis and osteoarthritis" without subjective complaint was not cause of disability, which directly resulted from a traumatic event); Hillman, supra, 109 N.J. Super. at 452, 461 (arteriosclerotic heart disease and hypertensive cardiovascular disease were preexisting but made chronic by heart attack suffered during traumatic event); Titman v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 107 N.J. Super. 244, 246-47 (App. Div. 1969) (fall down staircase caused by preexisting degenerative process in right leg and knee was not a traumatic event).

The Board's suggestion that we should treat the 2003 injuries and their sequelae as a preexisting disease or condition is utterly inconsistent with N.J.S.A. 43:15A-43 and the cases construing it. The ALJ's finding that Henderson did not have a preexisting disease or condition and that Richardson never intended that preexisting disease or condition be applied to injuries caused by a previous traumatic event is well-grounded in law and statute.

This case is simply a delayed-manifestation case to which the second paragraph of N.J.S.A. 43:15A-43 applies. Crimaldi, supra, 396 N.J. Super. at 604; Smith, supra, 149 N.J. Super. at 233-34; Still, supra, 144 N.J. Super. at 106-08. Indeed, in Still the plaintiff suffered a back injury on December 17, 1971, falling from a sweeping machine and striking his lumbar spine on a mechanic's steel workbench. Still, supra, 144 N.J. Super. at 105. He was in constant pain thereafter although he returned to work with some intermittent absences. Ibid. He found it progressively more difficult to perform the duties of his employment and could not perform the more strenuous duties. Ibid. During the following spring, the plaintiff felt extraordinary pain lifting an eighty-pound bag of fertilizer and was admitted to the hospital. Ibid. He returned to work and in 1973 felt increased back pain while operating a heavy mechanical lawnmower. Id. at 106. "In both of these instances he was attempting to perform his normal duties." Ibid. The medical opinions were that the December 17, 1971, fall triggered the progressive symptoms, and by June 1973 it was evident that the plaintiff was permanently and totally disabled. Ibid. The subsequent incidents were not the causes of the exacerbation of his condition but residuals of it. Ibid. We noted that the statute "recognize[d] that disability need not follow the accident immediately" and concluded that the 1971 trauma "was the natural and proximate cause of the disability." Id. at 108.

Henderson was indisputedly partially disabled from the 2003 traumatic event until his normal work effort triggered a total permanent disability caused by the 2003 traumatic event. Indeed, it is clear from the 2006 MRI and CT-scan that the damage to his spine had progressed in the three years since his accident, as Dr. Levine predicted, until a perfectly normal and usual movement in 2006 triggered a cascade of more severe, but otherwise identical, pain that ultimately caused Henderson to undergo the very surgery recommended three years earlier. As such, Henderson suffered a traumatic injury in 2003 that was the proximate cause of the delayed manifestation of his total permanent disability and was entitled to ADR benefits.

 
Reversed and remanded with instructions to award ADR benefits to Henderson.

"Spondylolisthesis is a condition in which a bone (vertebra) in the lower part of the spine slips forward and onto a bone below it." Spondylolisthesis: MedlinePlus Medical Encyclopedia, http://www.nlm.nih.gov/medlineplus/ency/article/001260.htm (last visited July 13, 2010).

Russo v. Teachers' Pension & Annuity Fund, 62 N.J. 142 (1973).

Gerba v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 83 N.J. 174 (1980)

Petrucelli v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 211 N.J. Super. 280 (App. Div. 1986).

The Cattani Court disapproved the third prong as too broad. Cattani, supra, 69 N.J. at 585.

Because the Legislature did not define "traumatic event," the Cattani Court adopted the definition of "traumatic event" found in 42A Words and Phrases, Trauma; Traumatic 3 (4th ed. 1951): "The phrase 'traumatic event' would ordinarily involve a mishap or accident involving the application of some kind of external force to the body or the violent exposure of the body to some external force." Cattani, supra, 69 N.J. at 586.

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A-6176-08T2

July 30, 2010