RAFAEL CABRERA v. BOARD OF TRUSTEES OF THE 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NOT FOR PUBLICATION WITHOUT THE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

RAFAEL CABRERA,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

________________________________________________________________

August 14, 2015

Argued October 15, 2014 Decided

Before Judges Espinosa and Rothstadt.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Docket No. 2-1220862.

Jason E. Sokolowski argued the cause for appellant (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Sokolowski, of counsel and on the briefs).

Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Rafael Cabrera was employed as head custodian for a school when he was injured while attempting to move a file cabinet with a hand truck. The Board of Trustees, Public Employees' Retirement System (the "Board"), found he was totally and permanently disabled as a result of the incident. However, the Board denied his application for accidental disability retirement benefits pursuant to N.J.S.A. 43:15A-43. Cabrera appeals from that final decision. We affirm.

Pursuant to Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), to be eligible for accidental disability retirement benefits under the applicable statute1 an applicant must establish

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 performing his usual or any other duty.

[Id. at 212-13.]

In its decision, the Board indicated that Cabrera met all the requirements for accidental disability benefits except for the condition that the event causing the disability was "undesigned and unexpected." Cabrera appealed the Board's decision and the matter was referred to the Office of Administrative Law as a contested case. In the hearing before the administrative law judge (ALJ), the parties stipulated that the only issue in dispute was whether Cabrera's accident was "undesigned and unexpected."

As head custodian, Cabrera was responsible for overseeing and participating in the cleaning, maintenance, and up-keep of the school building and equipment. His position required him to regularly move furniture in and out of classrooms.

On September 7, 2011, Cabrera was instructed to move several items from a classroom to the library. While attempting to move a file cabinet with a hand truck, Cabrera injured his chest, back, shoulder and hand. He radioed the principal for assistance. The principal called 911, and Cabrera was transported by ambulance to a hospital. He was treated and released the next day.

On September 16, 2011, Cabrera signed an employee accident report, which stated he experienced "chest pains & pains in back & shoulder" while "moving heavy file cabinet." Cabrera admitted he signed the form, but claimed that the school principal completed all of the information on the report.

On September 24, 2011, Cabrera applied for disability retirement benefits. He explained the accident to his daughter-in-law in Spanish and she completed the written application. The "events leading up to [the] injury" are described as follows

As I was lifting/moving a large cabinet, I felt pain in my left arm, chest, lower back, right wrist & leg. I became very dizzy."

The factors contributing to the accident were listed as "moving and lifting heavy furniture/equipment." Cabrera maintained that he told his daughter-in-law that the cabinet fell on him; however, he also stated that he read the application before signing it.

During his testimony, Cabrera initially gave the following account of the September 7, 2011, incident

After I move all the chairs and and the teacher['s] desk I went to move that cabinet it was a cabinet about four four or five feet high, 24 inches width and then about 36 long, I went to move that cabinet out of there, something that I always did, and that particular day I put the hand truck underneath. The cabinet was full of file[s].

. . . .

And then I placed the hand truck underneath, and then I tilt it back to me and then once I got it between five second[s] to ten second[s] I feel the force lean back of that cabinet on my body because it was full of files and it was heavy, and that's how I got I got this tremendous pain in my left shoulder, my lower back, and my hand and my leg. Once I did that I for five, ten second [sic] and I push it back because I could not I don't want to let it fall down on the floor, I just push it back and I put it back in the same place where it was.

When asked to explain the incident a second time, Cabrera stated

I I tilt it back to me and once it right through my and when I got it in my chest I feel the impact with the weight and I five or ten seconds I lost control and I move it back to the same spot where it was because I don't want to the file to fall down and the hand truck came and, you know, I hit my hand in here.

. . . .

[T]hen once I release it to put it back, the hand truck because the floor was wax, either the hand truck came off the the cabinet and hit my hand.

On cross-examination by the deputy attorney general (DAG), the following exchange took place

Q Did the cabinet fall on you?

A No yes, it did fall on my chest, on my lower I mean when I tilt it to me that's when I felt all the impact of the force of the cabinet.

Q So when did you feel pain?

A Once I got it in my chest, I put it back I tilt it right back from me, that's when the pain occur.

The DAG then questioned Cabrera regarding the descriptions of the incident on his worker's compensation application, disability application, and his doctor's reports. Although none of the documents state the file cabinet fell on him, Cabrera maintained he told each person completing the forms (his employer, doctors, and daughter-in-law) that it did.

In his recommended decision, the ALJ found that Cabrera's initial description of the accident was "an accurate recounting of what occurred on the day of the incident" and "essentially" unrefuted. Citing the Richardson criteria, he observed that the Court explained the "traumatic event" standard was satisfied "either in an unintended external event or an unanticipated consequence of an intended external event if that consequence is an extraordinary or unusual in common experience." The ALJ found that Cabrera failed to establish either type of event

Cabrera's description of the incident fails to establish that there was an unexpected external event. The hand truck that he was using to transport the file cabinet operated exactly as he intended and there was no unintended external event. Cabrera slid the hand truck under the file cabinet and subsequently tilted it towards himself, at which time he was physically unable to accommodate the weight.

The second type of potential traumatic event that would satisfy the "undersigned and unexpected" prong is that of an unintended external event that results in extraordinary or unusual consequences. . . . [I]t was not an extraordinary or unusual consequence. Cabrera was doing what he had done many times before according to his own testimony and it cannot be argued that the use of a hand cart to move heavy furniture or other equipment cannot end up with injuries exactly of the type suffered by Cabrera. It is not unusual or extraordinary for a person to sustain an injury when exerting stress to pull a heavy item that remains within the petitioner's realm of control.

In his conclusion, the ALJ stated, "The cabinet did not fall into him. Quite simply, there was no accident." He recommended that the Board's denial of Cabrera's application for accidental disability retirement benefits be affirmed. The Board adopted the ALJ's recommendation and reaffirmed its denial of Cabrera's accidental disability benefits.

In this appeal, Cabrera argues the Board's decision was not supported by substantial credible evidence in the record and is contrary to N.J.S.A. 52:14B-10(c). He also argues the Board misapplied the law in failing to conclude his injury was caused by an "undesigned and unexpected" traumatic event. Finally, he contends the Board erroneously applied a definition of accident contained in Russo v. Teachers' Pension & Annuity Fund, 62 N.J. 142 (1973), rather than the standard identified in Richardson. After reviewing these arguments in light of the record and applicable legal principles, we conclude that none have merit.2

The central question here was whether a traumatic event occurred. As Richardson explained, the statute

requires that the traumatic event occur "during and as a result of the performance of [the member's] regular or assigned duties." To be sure, when the "normal stress and strain" of the job combines with a pre-existing disease to cause injury or degeneration over time, a traumatic event has not occurred. That is quite different from saying that a traumatic event cannot occur during ordinary work effort. Indeed it can.

[Richardson, supra, 192 N.J. at 213-14 (citations omitted).]

The Court provided the following illustrations

A policeman can be shot while pursuing a suspect; a librarian can be hit by a falling bookshelf while re-shelving books; a social worker can catch her hand in the car door while transporting a child to court. Each of those examples is identifiable as to time and place; undesigned and unexpected; and not the result of pre-existing disease, aggravated or accelerated by the work. Thus, each meets the traumatic event standard. So long as those members also satisfy the remaining aspects of the statute, including total and permanent disability, they will qualify for accidental disability benefits.

[Id. at 214.]

The Court summarized

[T]he fact that a member is injured while performing his ordinary duties does not disqualify him from receiving accidental disability benefits; some injuries sustained during ordinary work effort will pass muster and others will not. The polestar of the inquiry is whether, during the regular performance of his job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member.

[Ibid.]

The Board's attorney conceded that, under this standard, if the file cabinet fell on Cabrera, he would have proven the requisite traumatic event. As we have noted, the ALJ found the cabinet did not fall on him.

Our review of an administrative agency decisions is limited in scope. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We give due regard to the agency's expertise and ability to judge credibility, Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and must not disturb an agency's decision absent a finding that it was "arbitrary, capricious, or unreasonable," Brady, supra, 152 N.J. at 210. "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood, supra, 127 N.J. at 513.

The import of these principles is that we should defer to the ALJ's finding, adopted by the Board, that the cabinet here did not fall into Cabrera if there is substantial credible evidence in the record to support that finding. Cabrera gave several accounts of the incident, including the version relied upon by the ALJ to make his finding. Contrary to Cabrera's argument, the ALJ was not bound to accept the alternative accounts as facts of equal or superior weight. We may infer from the manner in which the facts and testimony were presented in the decision that this is the version that the ALJ found credible. See State v. Locurto, 157 N.J. 463, 474 (1999).

Moreover, the ALJ's factual determination is consistent with the documentary evidence. Each record reflects that Cabrera was injured while moving heavy furniture none of the documents state the cabinet fell on him. Thus, the ALJ's findings were adequately supported by the record.

We then turn to the determination whether the facts as found by the ALJ will establish that Cabrera's injury was caused by a traumatic event that was "undesigned and unexpected." While we are not bound by an agency's decision on purely legal questions, we will give "substantial deference" to an agency's interpretation of those statutes the agency enforces. Richardson, supra, 192 N.J. at 196.

In addition to urging us to disagree with the finding that the cabinet did not fall on him, Cabrera contends the denial of benefits is rooted in a misinterpretation of the applicable legal standard. He argues that the Board failed to consider the standard set by Richardson as to what constitutes a traumatic event under the statute and, instead, relied upon the definition of accident contained in Russo, supra, 62 N.J. at 154, an earlier and distinguishable case. This argument lacks merit.

Contrary to Cabrera's argument, the Richardson Court did not reject Russo; the Court quoted its decision in Russo and expressly approved of Russo's "determination that the statute requires a happening external to the worker (not pre-existing disease alone or in combination with work) to warrant accidental disability benefits." Id. at 202. Any reference to Russo in the ALJ's recommended disposition is of no consequence because the foundation of the Board's decision is the finding that the cabinet did not fall on Cabrera. The illustrations provided in Richardson plainly show that he would have qualified for accidental disability benefits if the cabinet fell on him and did not qualify for such benefits if it did not. See, e.g., Brooks, supra, 425 N.J. Super. at 283-84. Since we accept the finding that the cabinet did not fall on Cabrera as supported by adequate evidence in the record, we conclude that, pursuant to Richardson, the Board did not act arbitrarily, capriciously or unreasonably in denying his application.

Affirmed.

1 Although Richardson analyzed the Police and Fireman's Retirement System's accidental disability retirement benefits statute, N.J.S.A. 43:16A-7, it has been uniformly recognized that Richardson governs the statute at issue here as well. See Brooks v. Bd. of Trs., 425 N.J. Super. 277, 281, 281 n. 1 (App. Div. 2012).

2 Cabrera also contends the Board erred in adopting the ALJ's recommendation without further analysis. N.J.S.A. 52:14B-10(c) requires that the "head of an agency . . . adopt, reject or modify the [ALJ's] recommended report and decision no later than 45 days after receipt of such recommendations." A statement of reasons is only required where the Board rejects or modifies the findings of the ALJ. Ibid. Thus, the Board's acceptance of the ALJ's recommendations without comment or explanation is of no consequence.