IN THE MATTER OF WILLIAM CARLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

WILLIAM CARLO.

____________________________

June 12, 2015

Argued March 18, 2015 Decided

Before Judges Fuentes, Ashrafi, and Kennedy.

On appeal from the Board of Trustees, Police and Firemen's Retirement System.

Frank M. Crivelli argued the cause for appellant William Carlo (Crivelli & Barbati, L.L.C., attorneys; Mr. Crivelli, on the brief).

Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent Board of Trustees, Police and Firemen's Retirement System (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Dorfler, on the brief).

PER CURIAM

Appellant William Carlo, formerly a police officer, was granted disability retirement benefits by the Police and Firemen's Retirement System (PFRS). He appeals from the final determination of the PFRS Board of Trustees (the Board) that his application for the higher level of benefits for an accidental disability retirement was not timely filed. We reverse.

The merits of Carlo's disability retirement are not before us. The only issue is the timeliness of his application. Generally, N.J.S.A. 43:16A-7(1) requires that an application for accidental disability retirement be filed within five years of the accident. Here, the accident occurred in 2003, but Carlo continued in his employment for another seven years and did not apply for disability retirement until 2011. The issue is whether the application was nevertheless timely because of an exception to the five-year limitation period.

By its decision dated October 8, 2013, the Board adopted fourteen out of fifteen findings of fact made by an Administrative Law Judge (ALJ) who held a hearing. We will summarize the relevant facts in accordance with the evidence presented at the hearing.

Carlo began employment as a police officer with the Department of Human Services in December 2002. He worked in various positions including at Trenton State Psychiatric Hospital, with the Division of Youth and Family Services, with the Juvenile Justice Commission, and with the Essex County Gang Task Force. A significant amount of his work involved seeking fugitives and other missing persons.

On September 30, 2003, Carlo was assisting the United States Marshals Service in apprehending a fugitive. The fugitive pushed Carlo off a fire escape two-and-a-half stories above the ground. Carlo's left ankle was shattered from the fall. After medical treatment that included three surgeries and the insertion of hardware to repair the ankle, Carlo returned to work in 2005. He was in his mid-thirties at the time. He retained his title as senior patrolman, but he could not perform the full physical duties of a police officer in the field. His employer assigned him to administrative duties that required only sedentary work.

Carlo worked in that capacity for the next five years. On October 27, 2010, Carlo's left ankle gave out while he was climbing stairs at work, and he needed further medical treatment. A CAT scan1 revealed that the hardware in his ankle had become loose. Eventually, Carlo underwent additional surgery in July 2011 to repair the ankle again.

In the meantime, about a week after the October 2010 incident, Carlo's employer told him his light duty position would no longer be available. Since there was no question that he could not perform the full duties of a police officer, Carlo applied for accidental disability retirement on May 9, 2011.

According to both Carlo's medical expert and the medical expert presented by PFRS at the hearing, Carlo was permanently disabled as a result of his September 2003 fall from the fire escape. His disability was not attributed to the October 2010 incident because he was never able to perform the duties of a police officer in the field after the earlier accident.

The Board stated that it declined to adopt the ALJ's fifteenth finding of fact, that "Carlo was prevented from applying for accidental disability retirement pension . . . because his employer assigned him other available duties under his title as a police officer." The Board's written decision, however, was not based on a disagreement with the ALJ's fifteenth finding. The Board denied the application on the ground that Carlo waited an unreasonable amount of time after his light duty assignment was rescinded to file an application for accidental disability benefits.

The pertinent statute provides that a PFRS member "may be retired on an accidental disability retirement allowance" when the member is certified to be permanently disabled as a result of a work-related "traumatic event" that does not result from the member's own negligence, and when

such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him. 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 application filed after the five-year period if it can be factually demonstrated to the satisfaction 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 other circumstances beyond the control of the member.

[N.J.S.A. 43:16A-7(1).]

The statute seems to exclude an accidental disability retirement where, as in this case, the employment continues through "other available duty in the department which his employer is willing to assign . . . ." However, the Board did not take the position that Carlo was ineligible because he retained his position and was assigned other available duties for more than five years.

Nor did the Board ultimately take the position that the five-year time limitation of the statute should be strictly enforced. The Board accepted the ALJ's finding that "other circumstances beyond the control of the member" prevented Carlo from filing his application within five years of the September 2003 accident.

The Board cited our decision in In re Crimaldi, 396 N.J. Super. 599 (App. Div. 2007), in support of its ruling that Carlo waited an unreasonably long time after learning that the light duty assignment would not be available any longer. In Crimaldi, we held that an exception from the five-year limitation period does not mean that the full five years begins to run from the time that an application could have been filed.2 Id. at 605-06. Rather, the Board has discretion to consider a late application if it is filed within "a reasonable time" from the time that the exception no longer applies. Ibid. Here, the Board found that Carlo did not file his application within a reasonable time.

Although we normally apply a deferential standard of review and do not substitute our judgment for that of an administrative agency, Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001); Gerba v. Bd. of Trs. of the Pub. Emps.' Ret. Sys., 83 N.J. 174, 189 (1980), application of the statutory limitation period is largely a question of law regarding which we exercise plenary review, Crimaldi, supra, 396 N.J. Super. at 601. We conclude in the factual circumstances of this case that the Board abused its discretionary authority when it determined that a six-month lapse of time was an unreasonable delay in Carlo's applying for accidental disability retirement.

In Crimaldi, the applicant was accidentally injured in August 1994 but did not file an application for disability retirement until more than eight years later. Id. at 602. The statutory exception for delayed manifestation of a permanent disability excused the passage of the five-year limitation period. Id. at 606. The question was whether Crimaldi's one-and-a-half to two-year delay from manifestation of the permanent disability until he filed his application in December 2002 was reasonable under the circumstances. Id. at 606.

We stated that "in determining what was 'reasonable[,]'" the Board of Trustees had to consider "when the delayed manifestation actually occurred, why the filing was delayed thereafter, and what prejudice would result to the PERS as a result of the late filing . . . ." Id. at 607 (footnote omitted). We remanded to the Board of Trustees to make a "fact-sensitive analysis" of those questions before determining whether Crimaldi's application was timely or not. Ibid.

Here, Carlo filed his application in May 2011, about six months after he learned in November 2010 that he could not return to his light duty job. The Board performed no fact-sensitive analysis to support its conclusion that a six-month time lapse was an unreasonable delay. It did not state why the delay was unreasonable or what prejudice was caused to PFRS or any other interested party as a result.

The Board argues on appeal that it was Carlo's burden to show that it was reasonable to wait until May 2011 to file his application, not the Board's burden to show it was unreasonable. But the issue of whether the six-month time lapse was reasonable was not raised during the ALJ hearing. The timeliness issues in that hearing were whether the September 2003 accident was the traumatic event that permanently disabled Carlo and whether his filing the application seven-and-a-half years after the accident was excusable because of circumstances beyond his control. The ALJ found that the 2003 accident was the cause of the permanent disability and that the late filing occurred because of circumstances beyond Carlo's control. The Board accepted those findings. In denying the application, the Board went beyond the findings of the hearing and concluded without explanation that a six-month lapse of time was an unreasonable delay.

There is nothing inherently unreasonable in waiting six months to file such an application. Carlo argues sensibly that he needed time to gather medical evidence to support his application for permanent disability resulting from the accident that had occurred more than seven years earlier. We note that the statute ordinarily grants five years for such an application to be filed.

We hold that the Board mistakenly exercised its discretionary authority when it ruled without findings or any other explanation that six months was an unreasonable delay. We remand to the Board to consider Carlo's application for accidental disability benefits as timely filed.

Reversed and remanded. We do not retain jurisdiction.

1 "A computerized tomography (CT) scan combines a series of X-ray images taken from different angles and uses computer processing to create cross-sectional images, or slices, of the bones, blood vessels and soft tissues inside [the] body. CT scan images provide more detailed information than plain X-rays do." Mayo Clinic Staff, CT scan Definition (Mar. 25, 2015), http://www.mayoclinic.org/tests-procedures/ct-scan/basics/ definition/prc-20014610.

2 Crimaldi pertained to the similarly worded limitation statute under the Public Employees' Retirement System, N.J.S.A. 43:15A-43. Crimaldi, supra, 396 N.J. Super. at 601.