DENZAL MCCLUTCHER - 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NOT FOR PUBLICATION WITHOUT THE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-3466-09T2

DENZAL MCCLUTCHER,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent-Respondent.

_______________________________

May 27, 2011

Submitted May 11, 2011 - Decided

Before Judges Cuff and Fasciale.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS #3-10-34908.

Caruso, Pope, Smith, Edell, Picini, P.C., attorneys for appellant (Steven J. Kaflowitz, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jobil P. Cyriac, Deputy Attorney General, on the brief).

PER CURIAM

Denzal McClutcher appeals from an order and final determination by the Board of Trustees, Police and Fireman's Retirement System (the Board), that he is ineligible to receive accidental disability retirement benefits. The main question is whether sitting in a police car qualifies as a "traumatic event" pursuant to N.J.S.A. 43:16A-7. We affirm.

McClutcher worked as a police officer for several years and was assigned to conduct patrol. While sitting in a Crown Victoria on July 9, 2004, he folded his left leg under his right leg and felt tightness. He continued to work for a month and then visited the hospital. He was diagnosed with blood clots, prescribed medicine, and eventually returned to work. On January 18, 2006, he folded his leg the same way while sitting in the Crown Victoria and had a familiar feeling. The next day he was prescribed blood thinner, diagnosed with Deep Venous Thrombosis, and retired. McClutcher's expert, Dr. Anthony C. Boddi, could not identify a time and place when clotting first began.

McClutcher filed a claim for accidental disability retirement benefits on September 29, 2006. In an initial decision, the Board denied McClutcher's claim because his injury was not considered a "traumatic event." McClutcher appealed to an Administrative Law Judge (ALJ) and the ALJ denied his claim.1

The ALJ noted that N.J.S.A. 43:16A-7 allows for accidental disability benefits when a person 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 . . . ." The Supreme Court has explained that a "traumatic event" 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) . . . .

[Richardson v. Bd. of Trs. Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007).]

The ALJ found McClutcher was permanently and totally disabled, but not as a result of a "traumatic event." The ALJ explained that McClutcher failed to establish that his blood clots were identifiable as to time and place and were not caused by a circumstance external to McClutcher. The Board adopted the findings of fact and conclusions of law of the ALJ.

On appeal, McClutcher argues that sitting in a police car which caused blood clots, qualifies as a "traumatic event" under N.J.S.A. 43:16A-7 and Richardson, supra, 192 N.J. at 212-13. The Board responds that developing blood clots while sitting in a car is not a "traumatic event."

The role of this court in reviewing an administrative agency's final determination is exceedingly limited. In re Taylor, 158 N.J. 644, 656 (1999).

The scope of review of an administrative decision is the same as that for an appeal in any non[-]jury case, i.e., whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.

[Ibid. (internal quotations and citations omitted).]

An appellate court is not permitted to "'engage in an independent assessment of the evidence as if it were the court of first instance.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If, in reviewing the agency's decision, this court finds sufficient credible evidence in the record and the inferences to be drawn therefrom, it must uphold the agency s decision even if the court would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001); In re Taylor, supra, 158 N.J. at 657.

Therefore, this court will only disturb a final agency determination if it concludes that the decision was arbitrary and capricious. In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997) (citing Worthington v. Fauver, 88 N.J. 183, 204 (1982)). "'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.'" Ibid. (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)). There is a strong presumption of an agency's reasonableness. Ibid. The burden of showing that an agency determination was arbitrary and capricious is on the party challenging it. Ibid.

We find that the Board's decision was reasonable, and see no basis for disturbing it. We affirm substantially for the reasons expressed by the Board in its thoughtful and detailed written opinion dated February 8, 2010. We add the following brief comments.

The Board found correctly, by substantial, credible evidence, that McClutcher was ineligible for accidental disability retirement benefits. McClutcher failed to satisfy two of the requirements for an injury to be considered a "traumatic event." First, his expert admitted the clotting could not be identified as to a time and place. Second, the cause of the clotting was not external to McClutcher, but was instead, as the ALJ found, "a chronic internal condition." Therefore, the Board did not act arbitrarily or capriciously, but rather found by substantial, credible evidence that McClutcher did not suffer a "traumatic event" under N.J.S.A. 43:16A-7.

1 McClutcher received ordinary disability benefits effective November 1, 2006.