BRUCE VANMETER, SR 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NOT FOR PUBLICATION WITHOUT THE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-0

BRUCE VANMETER, SR.,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________________

December 10, 2014

Submitted December 3, 2014 Decided

Before Judges Waugh and Carroll.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS #2-10-266329.

Stephen Altamuro, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Thomas R. Hower, Deputy Attorney General, on the brief).

PER CURIAM

Bruce VanMeter, Sr., appeals from a final determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), dated August 22, 2013, finding that he was not eligible for accidental disability retirement benefits. We affirm.

The facts are essentially undisputed. VanMeter was employed by the Department of Corrections as a senior corrections officer assigned to Bayside Correctional Facility. His duties included responding to "Code 33" emergency calls, which required him to run to the scene of the alert. On December 16, 2010, he received a Code 33 call from the prison infirmary. While running to that location, he made a left turn and suddenly heard a loud "pop" and felt a tearing sensation in his left knee, causing him to fall. Although it had previously rained, VanMeter could not recall whether he slipped on a wet surface. Unable to walk, he was taken to the prison infirmary in a wheelchair and then transported to a local hospital. An MRI revealed a complete tear of the meniscus which required surgery to repair, and VanMeter was informed that he will eventually require a knee replacement. The injury left him unable to perform his duties as a corrections officer.

In August 2011, VanMeter filed an application for accidental disability retirement benefits pursuant to N.J.S.A. 43:15A-43. On January 18, 2012, the Board determined that VanMeter was totally and permanently disabled, and awarded him ordinary disability benefits. However, the Board denied his application for accidental disability benefits on the basis that the event that caused his disability claim was "not undesigned and unexpected." VanMeter appealed, and the Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

The ALJ issued an initial decision dated July 3, 2013, finding that VanMeter was not entitled to receive accidental disability retirement benefits. Applying the test laid down in Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007), the ALJ found that VanMeter's disability was not due to a traumatic event within the meaning of N.J.S.A. 43:15A-43, because the incident "was not undesigned or unexpected." The ALJ reasoned

This case turns on the question of whether [VanMeter's] injury was the result of an undesigned and unexpected event. Based upon [his] testimony, I am satisfied that the event was not undesigned or unexpected. By his own admission, running to a code 33 was a part of his job [] that he performed a minimum of four to five times per month. There was nothing out of the ordinary about the incident, save only that on this particular occasion his knee gave out.

. . .

The statutory scheme was not structured to provide special benefit to an injury occurring in the ordinary course of the employee's duties. No accident or [undesigned] and unexpected traumatic event occurred here. [VanMeter's] leg simply gave out. Consequently, [he] is not entitled to accidental disability benefits.

On August 22, 2013, the Board issued a final decision adopting the ALJ's decision. This appeal followed.

The standard of review that applies in an appeal from a state agency decision is well established. "Judicial review of an agency's final decision is generally limited to a determination of whether the decision is arbitrary, capricious, or unreasonable or lacks fair support in the record." Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super.1, 14 (App. Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J.215, 223-24 (2009)). In reviewing an administrative decision, we ordinarily recognize the agency's expertise in its particular field. Ibid.

We are satisfied from our review of the record that the Board's decision is not arbitrary, capricious or unreasonable and is supported by sufficient credible evidence in the record. R.2:11-3(e)(1)(D). Accordingly, we affirm the Board's determination substantially for the reasons stated by the ALJ, which were adopted by the Board. We add the following.

Pursuant to N.J.S.A.43:15A-43, a member of the PERS may be retired on an accidental disability pension if the member 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[.]" In Richardson, the Court held that in order to qualify for accidental disability retirement benefits, a member of the retirement system must establish

1. that he is permanently and totally disabled;

2. as a direct result of a traumatic event that is

identifiable as to time and place,

undesigned and unexpected, and

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 performing his usual or any other duty.

[Richardson, supra, 192 N.J. at 212-13.]

In the present case, VanMeter meets all but one of the above-cited criteria. He argues that the Board erred in disqualifying him on the sole basis that the event that resulted in his injuries was not undesigned and unexpected. We recently noted that in Richardson the Court clarified the meaning of the term "traumatic event," stating that it "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 combination with work effort." Moran v. Bd. of Trs., Police & Firemen's Ret. Sys., ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 3) (citing Richardson, supra, 192 N.J. at 212).

Here, the Code 33 call itself was not an unexpected event, as VanMeter routinely responded to such emergency calls on a regular basis. Moreover, VanMeter's claim does not meet the traumatic event standard because he simply heard a "pop" and felt a burning sensation in his knee while running to the Code 33 call. Although in his brief he now argues that "the wet surface was the unexpected condition that altered [his] day-to-day duties," the record does not support such a finding. Rather, in his testimony before the ALJ, he candidly conceded that he was unable to recall whether any external condition such as a wet surface may have led to his injury or caused him to fall.

Affirmed.