LEWIS M. DUTTON, Petitioner- v. THE BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4870-05T24870-05T2

LEWIS M. DUTTON,

Petitioner-Appellant,

v.

THE BOARD OF TRUSTEES,

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

________________________________

 

Argued February 13, 2007 - Decided July 11, 2007

Before Judges S.L. Reisner and C.L. Miniman.

On appeal from a Final Notice of Administrative Action, Board of Trustees, Police and Firemen's Retirement System, PFRS #3-10-031600, TYP-780-2005S.

Frank M. Crivelli argued the cause for appellant.

Jeff Ignatowitz, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief).

PER CURIAM

This is an appeal by petitioner-appellant Sergeant Lewis M. Dutton (Dutton), New Jersey Department of Corrections (DOC), from a determination by an Administrative Law Judge (ALJ) that was adopted by the Board of Trustees (the Board), Police & Firemen's Retirement System (the PFRS), as a final agency action. Both the ALJ and the Board concluded that Dutton's injury was not "accidental" within the meaning of the accidental disability pension under the PFRS and that he was entitled only to an ordinary disability pension. Specifically, the ALJ and the Board found that Dutton's permanent and total disability was not a direct result of a "traumatic event" that would trigger an accidental disability pension. N.J.S.A. 43:16A-7(1). We reverse.

On December 30, 2003, Dutton was in his sergeant's office on Housing Unit 21 Left at South Woods State Prison. Also working on the unit was Senior Corrections Officer John Beverly (Beverly). Dutton supervised and was responsible for the safety of Beverly. An inmate approached Beverly sitting at the podium in the hallway of the unit and punched him in the face and chest. From his office Dutton observed a physical altercation between Beverly and the inmate. When he first observed them, they were in a "fighting stance." Then, the inmate tackled Beverly, knocking him to the floor, and punched him in the chest. Dutton punched the "duress button" and ran to assist Beverly.

When he arrived at the fight scene, Dutton dove on top of the inmate, who had been punching and slamming Beverly onto the concrete floor. Dutton attempted to use his OC spray, but only sprayed the inmate's hand and the top of his head. The spray can was then knocked out of Dutton's hand.

Eventually, Dutton broke the inmate's grasp on Beverly, who moved out from the bottom of the pile. The inmate rolled Dutton on his back, but Dutton continued to hold onto him from behind. The inmate then "pushed back," slamming Dutton into the metal podium three to five times. Then, four to five other officers responded to the scene, and the inmate was eventually restrained and removed from the area.

Dutton suffered an injury to his back severe enough to render him permanently and totally disabled. Dutton retired effective October 1, 2004, and sought an accidental disability pension. His application was denied and his appeal was transferred to the OAL for a hearing.

Dutton testified that sergeants in the DOC carry no self-defense weapons. They only have OC spray. He also testified that forty-five to fifty percent of the inmates at South Woods are violent and it is not uncommon for corrections officers to intervene in fights between inmates. However, attacks on corrections officers are rare.

Beverly testified that he knew the inmate was agitated, but he did not expect to be assaulted. He also said that he had assisted in pacifying fights between inmates, but had never been attacked before. Beverly also testified that corrections officers receive information on self-defense and opined that physical confrontations are "part of the job."

It was undisputed that Dutton was permanently and totally disabled, that he was injured as a result of an event that occurred during the performance of his regular duties, that his disability was not the result of his own willful negligence, and that he was incapacitated for the performance of his duties or any other available duty in the DOC. Thus, the only issue before the ALJ, the Board, and us is whether Dutton was disabled as a direct result of a "traumatic event."

Both the ALJ and the Board concluded that there was no "traumatic event" as that term has been interpreted and applied in Supreme Court cases and in unpublished Appellate Division decisions. The facts at the hearing were undisputed and the ALJ found the testimony of all the witnesses to be credible. Thus, the only issue on appeal is the interpretation of applicable law and its application to the largely undisputed facts as found by the ALJ.

[W]e note that administrative agencies have broad discretion to adjudicate disputes. Appellate courts must defer to an agency's expertise and superior knowledge of a particular field. Thus, if 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. Agencies, however, have no superior ability to resolve purely legal questions, and that a court is not bound by an agency's determination of a legal issue is well established.

[Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citations omitted).]

See also Brambila v. Bd. of Review, 124 N.J. 425, 437 (1991) ("[T]his Court is not bound by an agency's conclusions of law."); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) ("An appellate tribunal is . . . in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue."); Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 444-45 (App. Div. 1990). Thus, we are not bound by an agency's interpretation of case law. Here, Dutton contends that the ALJ and the Board misconceived the law applicable to the facts.

The New Jersey Supreme Court addressed the statutory phrase "traumatic event" in Cattani v. Board of Trustees, Police & Firemen's Retirement System, 69 N.J. 578 (1976). The Court explained that prior to 1964 the PFRS statute permitted receipt of an accidental disability retirement on proof of "'an accident met in the actual performance of duty.'" Id. at 583 (citation omitted). The Court explained that the statutory formulation was liberally construed by the courts, and, as a consequence, the Legislature amended the statute in 1964 to impose a requirement of a traumatic event. Id. at 584. The Court commented, "The legislative purpose was clear. These statutory changes were intended to make the granting of an accidental disability pension more difficult." Ibid. Specifically, the Court observed that the substitution of "'traumatic event'" for "'accident'" "plainly indicat[ed] that the Legislature did not intend that the workmen's compensation concept of 'accident' was to be applied to an accidental disability pension statute." Ibid. (citation omitted).

The Cattani Court adopted the definition of "traumatic event" found in 42A Words and Phrases, Trauma; Traumatic, at 3 (4th ed. 1951): "The phrase 'traumatic event' would ordinarily involve a mishap or accident involving the application of some kind of external force to the body or the violent exposure of the body to some external force." Cattani, supra, 69 N.J. at 586. Because Cattani's disability was not a result of the application of any external force or violence, his application for an accidental disability pension was denied. Ibid.

The Court revisited the definition of "traumatic event" in Kane v. Board of Trustees, Police & Firemen's Retirement System, 100 N.J. 651 (1985). The Court addressed denials of accidental disability pensions to three different police officers. It observed that reported and unreported decisions following Cattani had not achieved "consistent results." Id. at 662. The Court commented:

In reviewing these decisions and the various factual contexts in which injuries may arise, we remain convinced, as we were in Cattani, that the Legislature intended that an accidental disability pension ought to be awarded in cases of serious and permanent harm to the worker, in which the worker himself is exposed to a violent level of force or impact.

[Ibid.]

Providing guidance for the future, the Supreme Court held:

We think it consonant with the legis-lative intent to characterize a traumatic event as one that arises in cases in which a worker involuntarily meets with a physical object or some other external matter and is victim of a great rush of force or power that he himself did not bring into motion. As Cattani makes clear, the focus of inquiry is on the event itself rather than the injury. 69 N.J. at 586. The force or power must originate from sources other than the injured party. Hence, to be eligible for accidental disability retirement allowance, a worker must demonstrate (1) that his injuries were not induced by the stress or strain of the normal work effort; (2) that he met involuntarily with the object or matter that was the source of the harm; and (3) that the source of the injury itself was a great rush of force or uncontrollable power.

[Kane, supra, 100 N.J. 663.]

The Court then gave examples of events that would qualify as a traumatic event and those that would not.

A firefighter who, after battling a blaze over an extended period, is gradually affected by the heat and flames until he suffers definite injury and harm; his injury is part of the stress and strain of his duty and does not qualify him for an accidental disability retirement allowance. The same would be true of the fireman who strains his back while lifting a heavy ladder or one who injures himself while climbing onto the back of the fire[ ]truck to retrieve additional hose. By way of contrast, a fireman who is thrown off the roof of a building by a sudden explosion or a burst of flames suffers an injury that is not part of the strain of normal duty but rather is a consequence of an involuntary mishap involving considerable force and power. The same would be true of the fireman who is struck by a falling beam or who falls off the top step of a tall ladder. Both incidents would be viewed as traumatic events within the meaning of the statute.

[Ibid.]

Our Supreme Court again addressed the issue of a "traumatic event" in Gable v. Board of Trustees, Public Employees' Retirement System, 115 N.J. 212 (1989). Two separate appeals were consolidated in that opinion and both of them involved corrections officers who were assaulted by inmates, like Dutton here. Id. at 215-19. In both of the cases the Board denied accidental disability pensions, and in both cases we reversed the denial of such pensions. Id. at 217, 219. The Supreme Court affirmed our determination. Id. at 225.

The first corrections officer, Steven Gable, was injured on three occasions during his work for the DOC. Id. at 215-16. On the first occasion he broke up a fight between two inmates and as he was escorting one of them back to his cell the inmate attacked him and hit him on the back with a chair. Ibid. On the second occasion, an inmate kicked Gable in the chest propelling him against a concrete cell wall. Id. at 216. On the third occasion, an inmate attempted to escape a shower area. Ibid. Gable grabbed him by the head and the inmate put his arm around Gable's neck. Ibid. Additional corrections officers arrived and, during the ensuing struggle, four officers and an inmate collapsed in a pile on top of Gable, causing severe back pain. Ibid. It was undisputed that he was permanently and totally disabled. Id. at 215. The ALJ concluded that Gable's injuries resulted from traumatic events, but the Board rejected the ALJ's conclusions. Id. at 217.

The second corrections officer, William Cook, accompanied an inmate to the courthouse and, when he released her handcuffs and pressure-belt restraints, she became unruly, screaming and flailing her arms, trying desperately to escape. Id. at 218. Cook and another corrections officer removed the inmate from the courtroom and they soon reached the top of the stairwell. Ibid. At that point the inmate suddenly jumped, dragging Cook down the stairs. Ibid. His back, legs and upper body banged against the wall and the metal railing and his lower back hit the edge of the steps. The inmate kept fighting all the way down. Ibid. Again, it was undisputed that Cook's injuries were permanent and total and that they occurred during the course of his regular and assigned duties. Id. at 215. The ALJ concluded that the incident was a "traumatic event," but the Board denied his application and awarded only an ordinary disability pension. Id. at 219.

The Court concluded that Gable and Cook had both sustained injuries as a result of "'a great rush of force or uncontrollable power,'" satisfying the third prong of Kane. Id. at 222 (quoting Ciecwisz v. Bd. of Trs., 113 N.J. 180, 182 (1988) and Maynard v. Bd. of Trs., 113 N.J. 169, 175 (1988)). The Court also found that both officers had satisfied the first and second prong of Kane. Id. at 223-24. The Court acknowledged that "[t]he determination of what constitutes the stress or strain of a normal work effort requires a fact-sensitive inquiry." Id. at 222-23. The Supreme Court rejected the Board's argument that the "injuries were the sort of minor 'scuffles' that occur regularly in a jail environment," requiring denial of an accidental disability pension. Id. at 223. The Court concluded that the injuries were not the result of the normal work effort. Ibid. "These violent incidents are clearly distinguishable from the sort of commonplace happenings that we determined in Kane are part of the stress or strain of the normal work effort . . . ." Ibid. The Court held:

We recognize that a corrections officer's job is dangerous. There is always the possibility that he or she will be attacked violently by an inmate. Likewise, a firefighter might be struck by a falling beam, blown off a roof, or fall from a tall ladder. These occurrences, however, while occupational hazards, do not occur frequently enough to constitute normal stress or strain. Although a corrections officer, such as Gable or Cook, may realize that there is a potential that he or she will be called upon to subdue an inmate, an officer does not expect his or her daily routine will normally involve being struck by an aggressive or escaping inmate.

[Id. at 223-24 (quotation omitted).]

The Court also rejected the Board's argument that Gable and Cook had voluntarily met with the objects that were the source of their injuries. Id. at 224. Specifically, the Court said:

Our previous decisions provide no support for appellant's position that the "involuntary" prong of the Kane test should be read broadly to encompass a general "assumption of risk." In Kane, supra, and in Maynard/Ciecwisz, supra, we considered only whether the injured party actually set in motion the object or source of his injury. Thus, in Kane the Court denied accidental disability benefits to a police officer who voluntarily subjected his wrist to injury by pounding his open palm against the handle of a steel wrench. 100 N.J. at 664. In Maynard the Court stated that a slip-and-fall accident, "by its very nature is a not a voluntarily occurrence." 113 N.J. at 175. In the instant cases, Officers Gable and Cook were the victims of sudden, violent assaults, instigated solely by the actions of others.

Policy reasons further support our conclusion that the "involuntary" prong should be read narrowly. We do not want corrections officers to shy away from subduing unruly inmates. Nor do we want to discourage police officers from chasing criminal suspects. If law-enforcement officers act cautiously, they will not get injured - but they will also not be doing their jobs properly, and the public will not be as well protected.

[Gable, supra, 115 N.J. at 224.]

The ALJ here ostensibly relied on one of our unreported decisions, Richardson v. Board of Trustees, Police & Firemen's Retirement System, No. A-2811-04 (App. Div. Dec. 2, 2005) (slip op.), certif. granted, 186 N.J. 364 (2006). The ALJ interpreted that case as drawing a distinction between an injury sustained when an inmate's fury is directed at the corrections officer and an injury sustained when the inmate is directing his fury elsewhere. That interpretation is not correct.

The corrections officer in Richardson responded to an emergency code and found two other corrections officers struggling with an inmate. Id. at 2. As Richardson attempted to handcuff the inmate, he was knocked backwards, but in the process of steadying himself on the inmate he was straddling, he injured his left wrist. Id. at 2-3. The ALJ and the Board in Richardson relied on a distinction adopted by the Board in Winfield v. Board of Trustees, Police & Firemen's Retirement System, No. TYP 8487-01, Initial Decision (April 3, 2003), adopted by Board of Trustees, No. PFRS 3-10-028177 (May 30, 2003), between "offensive" and "defensive" conduct by the corrections officer. Richardson, supra, slip op. at 7-8. In affirming the denial of an accidental disability pension, we commented that the legal conclusions of the ALJ and the Board were "consistent with the Supreme Court's decision in Gable[] and are entitled to our deference." Id. at 9 (citation omitted). However, we concluded that the manner in which Richardson was injured was "not comparable" to what occurred in Gable. Id. at 11.

The ALJ, here, concluded that the object of the inmate's attack was Officer Beverly, not Officer Dutton, and he further concluded that Dutton was merely performing his duty to maintain order at the jail. The ALJ concluded, "[i]n this case, Dutton was not the object and physical encounters with the inmates, if not occurring every day, occur on such a routine basis as to be anticipated."

It is evident that the ALJ misconstrued Cattani and its progeny, including Richardson and Winfield. This case law focuses the PFRS and the courts on the manner in which an injury is sustained. We do not need to express an opinion regarding the propriety of the distinction drawn in Winfield regarding who was the "aggressor" and whether the actions of the officer were "aggressive" or "defensive," an issue pending before our Supreme Court, because it is clear from the undisputed facts here that the inmate was the aggressor and Dutton was defending Beverly. It is irrelevant whether the inmate was attempting to hurt Beverly rather than Dutton.

Finally, in support of the denial of an accidental disability pension the ALJ concluded that Dutton was merely performing his duty to maintain order at the jail. That, too, is an incorrect statement of the issue in accidental-disability-pension cases. Of course he was performing his job duty, as is the case in all of these accidental-disability-pension cases, and as required by N.J.S.A. 43:16A-7(1). The issue is whether the injuries were or "were not induced by the stress or strain of the normal work effort." Kane, supra, 100 N.J. at 663 (emphasis added). The Supreme Court in Gable adopted our reasoning that "[a]lthough a corrections officer . . . may realize that there is a potential that he or she will be called upon to subdue an inmate, an officer does not expect his or her daily routine will normally involve being struck by an aggressive or escaping inmate." Gable, supra, 115 N.J. at 223-24 (quotation omitted) (emphasis added). Indeed, the testimony before the ALJ was consistent with the Gable conclusion and clearly established that it was not uncommon for corrections officers to intervene in fights between inmates, but that attacks on corrections officers are rare. Here, the evidence established that Dutton's injuries "were not induced by the stress or strain of the normal work effort." Kane, supra, 100 N.J. at 663 (emphasis added). As a consequence, Dutton is entitled to receive an accidental disability pension.

 
Reversed.

Oleoresin capsicum spray or pepper spray.

http://lawlibrary.rutgers.edu/oaldecisions/initial/typ08487-02_1.html.

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A-4870-05T2

July 11, 2007