GERALD CORSO v. BOARD OF TRUSTEES, 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NOT FOR PUBLICATION WITHOUT THE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-0353-05T20353-05T2

GERALD CORSO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________________________________________

 

Submitted May 1, 2006 - Decided June 23, 2006

Before Judges Cuff and Holston, Jr.

On appeal from the final administrative decision of the Board of Trustees, Police and Firemen's Retirement System, OAL Docket No. TYP 3818-2004N, PFRS #3-10-030115.

Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for appellant (Paul L. Kleinbaum, of counsel and on the brief; Jason E. Sokolowski, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Michael Haas, Assistant Attorney General, of counsel; Dawn M. Harris, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, Gerald Corso, appeals the August 9, 2005 letter decision of the Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS), denying petitioner's application for accidental disability retirement benefits. We affirm.

The issue to be determined in this appeal is whether the work related incident of January 10, 2003, constituted a "traumatic event" entitling petitioner, a police patrolman for the Borough of Caldwell (Caldwell) and a member of the PFRS since June 27, 1988, to accidental disability retirement benefits as defined by N.J.S.A. 43:16A-7.

Petitioner filed his application for disability benefits with the Board on July 26, 2003, with an effective retirement date of February 1, 2004. The Board denied petitioner's application for accidental disability retirement benefits on the basis that the incidents "were not 'traumatic events' as defined by N.J.S.A. 43:16A-7 and relevant case law."

Thereafter, petitioner requested an appeal of the Board's decision to the Office of Administrative law. A plenary hearing was conducted by ALJ Weiss on January 12, 2005, resulting in his initial decision of May 19, 2005. The Board affirmed the ALJ's initial decision that the January 10, 2003 incident did not constitute a "traumatic event." Petitioner appeals that determination.

On January 10, 2003, petitioner was on duty, working a twelve hour shift from 7:00 a.m. to 7:00 p.m., when he was instructed by his supervisor to hand-deliver packages to several members of the Caldwell Planning Board. At approximately 6:00 p.m. on that date, petitioner drove his patrol car to a member's residence, parked his car across the street from the member's house, and then walked up the steps and down a pathway to the front door to deliver a package. Petitioner placed the package against the wall next to the front door and proceeded to walk back the same way. He walked down the front steps and then along a walkway to another set of stairs located near the street and his patrol car.

Petitioner testified that as he approached the last step on the set of stairs near the street, he checked for traffic, because the last step led onto the street. He then stepped onto the last step with his left foot and the weight of his entire body. A stone slab on that step was broken in two pieces and not cemented in place. The stone slab collapsed under his foot and immediately sprung up and struck him in the back of his leg. He was propelled into the air, he felt "out of control," and he was "snapped in a back and forth motion." Although petitioner landed on both feet, he landed awkwardly and off balance and traveled about ten to fifteen feet before he regained his footing and balance. Petitioner never fell to the ground. The distance from the last step to the street was six to eight inches in height. At the end of the incident, he was standing on both feet on the lawn adjacent to the steps. The incident did not leave any physical markings on his leg.

Petitioner is five feet, six inches tall and weighs 165 to 170 pounds. At the time of the incident, he was wearing a jacket, gun belt and a bulletproof vest, which added about ten to fifteen pounds of weight.

According to petitioner, he initially thought that he may have just sprained his knee, because he regained his balance and was able to walk back to his patrol car and drive to another residence to pick up a package. About five to ten minutes later, while petitioner was picking up the package and speaking to the resident, he began to have shooting spasms and pain down his legs. At that point, petitioner returned to his patrol car and notified his supervisor that he was injured.

Petitioner sought treatment on January 10, 2003 for the injuries he suffered and never returned to work following the incident. Approximately one year and two months after the incident on March 19, 2004, petitioner was examined by Dr. Zafer Termanini, a board certified orthopedic surgeon and a biomechanical engineer. In a substantive report issued by Dr. Termanini dated September 17, 2004, the doctor related petitioner's history. Petitioner told Dr. Termanini that his chief complaints were to his low back and his left knee. Dr. Termanini concluded, after his examination of petitioner and his review of petitioner's prior medical records, that his disabling injuries included: (1) chronic lumbar disc herniation and mechanical back syndrome, (2) chronic traumatic synovitis of the left knee, and (3) status post arthroscopy and meniscectomy of the left knee.

Dr. Termanini testified that petitioner's disability was a direct result of the incident of January 10, 2003, and further concluded that petitioner's injuries were caused by the movement of the stone slab. Dr. Termanini opined that the amount of force that was exerted caused petitioner's disability. Dr. Termanini stated:

I was able to extrapolate from my background in engineering and the picture that I received, that the height was between . . . 8.2 to 8.5 inches. Now, in a person who is 165 [pounds] plus 12.5 pounds of equipment, including the vest, so we're talking 172 to 175 pounds coming down 8.2 to 8.5 height with the momentum and the spasm. It translates into 2 to 2.5 [times] the body weight. So that is almost 350 to 400 pounds coming down on his feet and it is a tremendous amount of stress on his back. So to answer the question, counsel, is that the two mechanism, the spasm and the fall on his feet, caused tremendous amount of injury to his lumbar spine. This is the mechanics of the fall. . . . So he didn't fall to the ground he tells me, but at least he tried to catch himself, and I think that is a tremendous amount of stress on his lumbar spine.

Dr. Termanini further opined that petitioner suffered back and lower extremity injuries as a "direct result" of the January 10, 2003 accident, and that he is "totally and permanently disabled" as a result of the accident. The Board did not present any testimony to rebut Dr. Termanini's testimony. However, the December 1, 2003 report of the PFRS examining orthopedic surgeon, Dr. David M. Loya, was admitted into evidence.

In the ALJ's May 19, 2005 initial decision, the ALJ analyzed a number of "traumatic event" cases, and concluded that the "source of the force or power causing petitioner's injury essentially came about as a result of petitioner's own conduct, not from any violent or great rush of force from an external source." The ALJ compared petitioner's incident to reported "slip and fall" cases that found the absence of a "traumatic event" and dismissed petitioner's petition seeking accidental disability retirement benefits.

On August 8, 2005, the Board voted to affirm the ALJ's initial decision and adopted the ALJ's findings of fact and conclusions of law. As a result, the Board denied petitioner's application for accidental disability retirement benefits.

It is well-established that "[o]n judicial review of an administrative agency determination, courts have but a limited role to perform." Gerba v. Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 189 (1980). An administrative agency's determination is presumptively correct and, on review of the facts, a court will not substitute its own judgment for that of an agency where the agency's findings are supported by sufficient credible evidence. Ibid. See also Atkinson v. Parsekian, 37 N.J. 143 (1962); Hillman v. Bd. of Trs., Pub. Employees' Ret. Sys., 109 N.J. Super. 449, 461 (App. Div. 1970). It is only where an agency's decision is arbitrary or capricious, or unsupported by sufficient credible evidence in the record, that it may be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Atkinson, supra, 37 N.J. at 149.

The burden of proof thus rests with petitioner to establish that he is entitled to PFRS accidental disability retirement benefits. An applicant for retirement benefits must conclusively establish that he meets the statutory requirements to collect said benefits. See e.g., Squeo v. Comfort Control Corp., 99 N.J. 588 (1985); Charatan v. Bd. of Review, 200 N.J. Super. 74, 78 (App. Div. 1985).

However, when an issue involves a question of law, a reviewing court is not bound by an agency's interpretation of a statute or its determination of a legal issue. See Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) ("Agencies . . . 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.").

The PFRS Board is the agency vested with the general responsibility for the proper operation of the PFRS pursuant to N.J.S.A. 43:16A-13. As such, the Board's actions with regard to the administration of the PFRS are accorded presumptions of validity and reasonableness. N.J.S.A. 43:16A-7 provides that a PFRS member is entitled to accidental disability retirement if the member is:

[p]ermanently 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 . . . . (emphasis added).

The Board determined that petitioner is totally and permanently disabled from the performance of his regular and assigned duties, and that his disability is a "direct result" of the incident, which occurred on January 10, 2003. Therefore, the sole issue is whether the Board was correct in concluding that the January 10, 2003 accident was not a "traumatic event" as described by N.J.S.A. 43:16A-7 and relevant case law.

Prior to 1964, the statute provided for accidental disability benefits to be awarded if the employee was disabled with physical injuries arising out of an "accident." Cattani v. Bd. of Trs., Police and Firemen's Ret. Sys., 69 N.J. 578, 583 (1976). The Supreme Court, however, determined in Kane v. Board of Trustees, Police and Firemen's Retirement System, 100 N.J. 651 (1985), that by replacing the term "accident" with "traumatic event," the Legislature intended to impose a stricter standard for member's claims in order to receive the higher benefit.

[T]he words "traumatic event" were a significant departure from the term "accident" previously used, plainly indicating that the Legislature did not intend that the workmen's compensation concept of accident was to be applied to an accidental disability pension statute.

[Id. at 661 (quoting Cattani, supra, 69 N.J. at 584).]

In Kane, the Court stated that "the focus of inquiry is on the event itself rather than the injury." Id. at 663. Further, the force or power present in the event causing the injury "must originate from sources other than the injured party." Ibid.

In Kane, the Court established a three-prong test, which the petitioner in any accidental disability case must satisfy in order to receive the substantially higher benefit.

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.

[Ibid.]

We are satisfied that petitioner has not met his burden under the third prong established in Kane because he has failed to demonstrate that any external force that acted upon him causing him to stumble down one step was "a great rush of force or uncontrollable power."

In Kane, two police officers became disabled in tripping incidents. Patrolman Daniel Kane was performing a house check for residents on vacation for potential burglaries when he slipped on an uneven piece of concrete on a raised lip of concrete approximately three inches in height that ran around the front of a door to a resident's garage. Id. at 654-55. As he stepped on the concrete, he felt his ankle go. Id. at 655. Attempting to save himself from falling, he shifted his weight from his ankle and knee injuring both. Ibid. In Detective Donald Canastra's case, he alighted from his unmarked police car and stepped on a four or five inch stone in the police headquarters parking lot. Id. at 656. Canastra "wrenched" his leg but never fell to the ground. Ibid. As a result of the incident, he injured his right leg and knee. Ibid.

The sole issue in Kane and Canastra's appeals was whether the respective incidents that led to the officers' injuries constituted a "traumatic event," thereby entitling them to accidental disability retirement benefits. Id. at 660. The Court, citing to its earlier decision in Cattani, reiterated that work effort alone cannot be considered a "traumatic event" whether unusual or excessive and that a "'traumatic event' would ordinarily involve . . . the application of some kind of external force to the body or the violent exposure of the body to some external force." Id. at 661 (internal quotations omitted). The Court remained convinced, after reviewing decisions with inconsistent results since Cattani, "that the legislature intended that an accidental disability pension ought to be awarded in cases . . . in which the worker himself is exposed to a violent level of force or impact." Id. at 662. The Court clarified that "a traumatic event [is] 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." Id. at 663. The Court thus concluded that neither the mishaps of Kane or Canastra could properly be termed "traumatic events." Id. at 664.

In an attempt to clarify the parameters of a traumatic event, the Court provided examples of incidents that illustrate traumatic events.

A fireman who is thrown off the roof of a building by a sudden explosion or a burst of flames suffers an injury . . . involving considerable force and power. The same would be true of a fireman . . . who falls off the top step of a tall ladder. Both incidents would be viewed as traumatic events within the meaning of the statute.

[Id. at 663.]

Applying the standard established in Kane, we are convinced that petitioner has failed to demonstrate that any external force acted upon him, which caused him to stumble down one step, or that the stumble was caused by "a great rush of force or uncontrollable power." We view the event causing petitioner's injury as similar to that of Patrolman Kane, who tripped on uneven pavement and Detective Canastra, who tripped on a stone. Notably, like the two officers in Kane, petitioner here did not fall to the ground at any time during the January 10, 2003 incident.

Petitioner argues that the fact that the step sprung up and hit him in the leg distinguishes his debilitating incident from those in Kane. Petitioner contends that the step springing up constituted the source of a great rush of force not found in Kane. We are convinced, however, that the fact that the step may have flipped up and touched petitioner's leg does not convert this incident into one involving a "great rush of force or uncontrollable power."

As Cattani made clear, the focus of the inquiry is not on the injury but on the event. The record, here, confirms that there was no reddening, swelling or bruising to the rear part of petitioner's leg that was touched by the step. Additionally, petitioner never fell to the ground during the incident, indicating that the strength of the force of the step flipping up and striking his leg was minor. Petitioner was able to regain control of his motion and remain on his feet during the event.

In our view, petitioner's incident is factually similar to Barney v. Board of Trustees, Police and Firemen's Retirement System, 238 N.J. Super. 556 (App. Div.), certif. denied, 122 N.J. 168 (1990). In Barney, a police officer fell from the top step when three or four bricks gave way causing him to land on the bottom step approximately five feet below. We concluded that "the source of Barney's injury was not a great rush of force or uncontrollable power" but rather as a result of Barney "[losing] his balance after stepping on a loose brick." Id. at 558-59. We explained that "[i]n slip and fall cases, no force or power originates anywhere except from the person falling" and that "any gravitational force generated by the fall is not 'great'" as that term was used in Kane's illustration of a fireman falling from the top step of a tall ladder where the gravitational force is great when compared to a person standing on the ground. Ibid.

We believe that petitioner's case is clearly distinguishable from both Flores v. Board of Trustees, Public Employees' Retirement System, 287 N.J. Super. 274 (App. Div. 1996) and Fairweather v. Board of Trustees, Public Employees' Retirement System, 373 N.J. Super. 288 (App. Div. 2004), cited by petitioner. In Flores, the Supervisor of Public Works for Bay Head, at the request of the Borough Engineer, was holding a rod used to measure pipe elevations over a trench. Flores, supra, 287 N.J. Super. at 276-77. Flores fell straight down striking his lower back on a pipe, as a result of the blacktop roadway suddenly collapsing. Id. at 277. The collapse of the roadway was caused by a completely violent external force, Ibid., unlike here, where petitioner's incident resulted from his own action of stepping onto a step.

Likewise, in Fairweather, petitioner, a residential living specialist at the Trenton Psychiatric Hospital, who was responsible for the care of low functioning mentally ill residents, took a hallucinating patient's hand as they both started down three ice and snow covered stairs during a fire alarm. Fairweather, supra, 373 N.J. Super. at 291-92. The petitioner fell down the steps injuring her lower back and right knee when the 200 pound patient suddenly turned away from her and jerked his hand from her causing her to lose balance. Id. at 292. We concluded that petitioner's accident in that case constituted a traumatic event because, unlike here, the petitioner "did not just slip and fall on her own accord on an icy step," thus herself bringing the forces into motion by her own action. Id. at 300-01. Rather, the "accident was caused by an unexpected rush of external force or power" that petitioner could not control. Id. at 301.

We are satisfied, after our thorough review of the record, that the determination of the Board is consistent with the legal principles discussed by the Supreme Court in Kane and factually consistent with our opinion in Barney. In our view, the source of petitioner's injury was not a great rush of force or uncontrollable power. Rather, petitioner lost control of his footing and lost his balance after stepping on the last step to the street. Petitioner's loss of footing is not comparable to a direct and unbroken fall of an individual from a considerable height with its attendant gravitational force, as described in Kane, or as a result of a violent external force existent in both Flores and Fairweather. We are satisfied, therefore, that the determination of the Board is not arbitrary, capricious or unreasonable, is consistent with the applicable legal principles and is supported by the credible substantial evidence in the record.

 
Affirmed.

Petitioner's initial application was for injuries sustained on the job on May 26, 1997, December 10, 1999, and January 10, 2003. At the hearing before the Administrative Law Judge (ALJ), Petitioner only offered testimony concerning the January 10, 2003 incident. That incident is the sole focus of this appeal.

(continued)

(continued)

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A-0353-05T2

June 23, 2006