WAYNE HUNDEMANN v. 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NOT FOR PUBLICATION WITHOUT THE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-0

WAYNE HUNDEMANN,

Petitioner-Appellant,

v.

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

______________________________________

February 3, 2015

Argued January 6, 2015 Decided

Before Judges Yannotti and Fasciale.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS No. 3-10-40605.

Stephen B. Hunter argued the cause for appellant (Detzky, Hunter & DeFillippo, LLC, attorneys; Mr. Hunter, of counsel and on the brief).

Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Dorfler, on the brief).

PER CURIAM

Wayne Hundemann ("Hundemann") appeals from a final determination of the Board of Trustees (the "Board) of the Police and Firemen's Retirement System ("PFRS"), which denied his application for accidental disability retirement benefits pursuant to N.J.S.A. 43:16A-7(1). We affirm.

In April 2010, the Board determined that Hundemann was totally and permanently disabled from the performance of his regular assigned duties as a police officer and therefore was eligible for ordinary disability benefits. The Board found that Hundemann was not eligible for accidental disability benefits because the incident that allegedly resulted in his disability was not "a traumatic event occurring during and as a result of the performance of his regular or assigned duties[.]" N.J.S.A. 43:16A-7(1).

The Board determined that the incident, as described by Hundemann, was not "undesigned and unexpected" as required by Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189, 212 (2007). Hundemann filed an administrative appeal, challenging the Board's determination. The Board referred the matter to the Office of Administrative Law for a hearing before an Administrative Law Judge ("ALJ").

Hundemann was the only witness at the hearing. He testified that he had been a police officer in Carteret for twenty years. He said that on August 17, 2008, he was working the 7:00 a.m. to 5:00 p.m. shift. He was assigned to communications, with responsibility for dispatching calls. He also was assigned to handle walk-ins and warrants. According to Hundemann, he received a call from an officer in the field, who asked about a particular motor-vehicle law. He went to get the statute book, which was in his locker.

To get to his locker, Hundemann had to pass through the kitchen/break room. Hundemann said that as he walked through the kitchen, he slipped and fell on a wet substance on the floor in front of the sink, injuring his shoulder, right arm and back. He asserted that the floor of the kitchen was comprised of ceramic tile. Hundemann saw nothing on the floor when he entered the kitchen and walked by the sink. Hundemann testified that, when he hit the floor, he called out and a patrolman entered. He stated that the maintenance person does not work on weekends and therefore the kitchen was a "mess."

Hundemann asserted that at the time, two persons were in the shift commander's office, which was about ten feet away from the place where he fell. There were two other persons in the dispatcher's office, where he had been working. No one saw Hundemann fall and no one was in the break room at that time. According to Hundemann, an officer came in to the kitchen area after he fell, mopped the floor and put up a wet-floor sign.

Hundemann's statements were challenged on cross-examination because, at the time of the alleged incident, disciplinary actions were pending against him. Hundemann also was questioned during cross-examination as to why he had answered "No" to a written interrogatory, which asked whether any disciplinary actions had been taken against him for failure to perform his required duties. Hundemann replied that he was never specifically charged or disciplined for failure to perform his duties, and the pending disciplinary charges did not involve such a charge.

The ALJ issued an initial decision, which found that the event as described by Hundemann was not a traumatic event under N.J.S.A. 43:16A-7. The ALJ noted that, under Richardson, the PFRS member seeking accidental disability retirement benefits must show, among other things, that the disability was the result of an incident that was "undesigned and unexpected." Richardson, supra, 192 N.J. at 212.

The ALJ determined that although Hundemann's fall was "undesigned" it was not "unexpected" because the incident could have occurred "in any kitchen or break room" and "employment or work was not a contributory factor" in the slip-and-fall. The ALJ concluded that Hundemann was not eligible for accidental disability retirement benefits.

Hundemann and the PFRS filed exceptions to the ALJ's initial decision. In its exceptions, the PFRS noted that Hundemann's credibility had been challenged at the hearing in an attempt to show that he had not carried his burden of establishing that something "undesigned and unexpected had actually happened." The PFRS said that, if the ALJ had determined that Hundemann's uncorroborated testimony was not sufficient to prove that the slip-and-fall had actually occurred, that would support denial of his application.

However, the ALJ had not made any specific finding on Hundemann's credibility, thereby limiting the Board's ability to review the ALJ's initial decision. The PFRS said that, if the Board accepted the ALJ's factual findings without further inquiry, the denial of Hundemann's application, as recommended by the ALJ, would not be consistent with Richardson, in which the court indicated that a slip and fall in the workplace qualifies as an undesigned, unexpected traumatic event under N.J.S.A. 43:16A-7(1).

The PFRS stated that the matter should be remanded to the ALJ for clarification. The ALJ should be directed to make specific findings as to Hundemann's credibility, and whether he had carried his burden of establishing that the disabling injury was an undesigned and unexpected event that "actually occurred."

On March 13, 2012, the Board remanded the matter to the ALJ for clarification of her factual findings. The Board directed the ALJ to make a specific finding on Hundemann's credibility, noting that he was the sole witness in the matter. The Board also directed the ALJ to determine whether Hundemann had carried his burden of proof in showing that the alleged incident of August 17, 2008, qualified under Richardson as a traumatic event that is undesigned and unexpected.

The ALJ thereafter conducted another hearing in the matter. Hundemann was again the only witness. He testified further about the incident, and submitted documentary evidence which he claimed corroborated his assertions regarding the incident. On May 28, 2013, the ALJ issued another decision, finding that Hundemann's testimony that he slipped and fell in the police station on August 17, 2008, was not credible.

In support of that finding, the ALJ cited inconsistencies between Hundemann's testimony at the first hearing and his testimony at the remand hearing. The ALJ noted that, in support of his testimony, Hundemann had submitted a workers' compensation form that his supervisor had completed after the incident, but the ALJ stated that nothing on the form independently corroborated the slip-and-fall that Hundemann claimed had occurred.

The ALJ also noted that Hundemann had a "substantial motive to fabricate" the slip-and-fall incident, which undermined the credibility of his testimony. The ALJ wrote that Hundemann had been served with serious disciplinary charges prior to the incident and he was threatened with removal. The ALJ pointed out that Hundemann had served two prior disciplinary suspensions, which made removal or a substantial suspension a realistic possibility.

In addition, the ALJ noted that Hundemann had answered "No" to a written interrogatory, which asked whether any disciplinary action had been taken against him for failure to perform his required duties. The ALJ stated that, when Hundemann answered that interrogatory, "the neglect of duty charge had been sustained, and a thirty-day suspension imposed."

The ALJ rejected Hundemann's claim that his response to the question was accurate. He had asserted that disobeying a direct order from a supervisor did not constitute the failure to perform "required duties." The ALJ pointed out that Hundemann had conceded that his required duties included obeying orders.

The ALJ concluded that Hundemann's testimony that he slipped and fell in the police station on August 17, 2008 was not credible. The ALJ therefore determined that Hundemann's application for accidental disability retirement benefits should be denied. Hundemann filed exceptions to the ALJ's initial decision. On July 16, 2013, the Board issued its final decision, adopting the ALJ's findings and conclusion. This appeal followed.

Hundemann argues that: (1) the Board's final decision is arbitrary and capricious; (2) his account of the incident of August 17, 2008 was credible and, therefore, the incident qualified as a traumatic event under N.J.S.A. 43:16A-7(1); (3) his testimony, as corroborated by his supervisor's report and the findings of his physicians, was credible; (4) the answer to one ambiguously-worded interrogatory relating to his prior disciplinary history was truthful; (5) the workers' compensation form and the relevant medical reports fully corroborated his account of the slip-and-fall; (6) the ALJ's credibility determinations were not entitled to any weight because they were arbitrary, capricious, and unreasonable and not supported by the record; and (7) the ALJ's credibility determinations were not entitled to any weight since the issue of whether he testified truthfully or not regarding one interrogatory answer had nothing to do with the sole issue on remand, which was whether he slipped and fell on August 17, 2008.

We have carefully reviewed the record in light of the applicable legal principles, and conclude that Hundemann's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following.

The scope of our review in an appeal from a final decision of an administrative agency is strictly limited. Circus Liquors, Inc. v. Twp. of Middletown, 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable" or "lacks fair support in the record[.]" Ibid.

In reviewing an agency's action, we consider

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.

[Id. at 10 (quoting Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995)).]

In doing so, we must acknowledge, when appropriate, an agency's "'expertise and superior knowledge of a particular field.'" Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

To qualify for accidental disability benefits, a member of the PFRS must establish that 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 and that such disability was not the result of the member's willful negligence and that 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.

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

In Richardson, 189 (2007), the Court held that accidental disability benefits may only be awarded if the PFRS member shows

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 preexisting 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.]

We are convinced that there is sufficient credible evidence in the record to support the ALJ's and the Board's determination that Hundemann failed to establish that he was permanently and totally disabled from the regular performance of his police duties as a result of a traumatic event, under the standard enunciated in Richardson. As we have explained, Hundemann claimed that he suffered his disabling injury when he slipped and fell in the kitchen of police headquarters on August 17, 2008. No one witnessed the slip-and-fall, and Hundemann was the only witness who testified about it at the two hearings conducted by the ALJ in this matter.

The ALJ found that Hundemann's testimony about the incident was not credible. We reject Hundemann's argument that his testimony was corroborated by the workers' compensation form that his supervisor completed after the incident and by the medical reports concerning his injuries. The workers' compensation form merely recounted what Hundemann said had happened. In addition, the person or persons who prepared the medical reports did not witness the incident.

The record also supports the ALJ's finding that Hundemann had not replied truthfully to an interrogatory question regarding his prior disciplinary record. The ALJ rejected Hundemann's claim that the answer was accurate. Furthermore, the ALJ properly found that Hundemann had a reason to fabricate the incident because there were disciplinary charges pending against him at the time, and those charges could have led to his removal or the imposition of a significant suspension.

In short, the ALJ's finding that Hundemann's testimony was not credible has ample support in the record. The Board reasonably deferred to the ALJ's credibility findings because, like any trial judge, the ALJ had the "'opportunity to hear and see the [witness] and to have the "feel" of the case, which a reviewing [agency] cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). The Board's decision adopting the ALJ's findings was not arbitrary, capricious or unreasonable.

Affirmed.