KENNETH NISSEL 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NOT FOR PUBLICATION WITHOUT THE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-6281-04T16281-04T1

KENNETH NISSEL,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF

THE PUBLIC EMPLOYEES

RETIREMENT SYSTEM,

Respondent-Respondent.

 

Argued October 5, 2006 - Decided October 30, 2006

Before Judges Winkelstein and Fuentes.

On appeal from a final decision of the Board of Trustees of the Public Employees Retirement System, TYP-129-03.

Michael J. Glassman argued the cause for appellant (Mr. Glassman, attorney; Joseph T. Walsh, on the brief).

Dawn M. Harris, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney for respondent; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Harris, on the brief).

PER CURIAM

Petitioner, formerly employed as a custodian by the Voorhees Township Board of Education, was injured on the job on June 16, 2000, when a floor buffing machine he was operating partially lifted into the air and landed on his foot. In an October 30, 2003 opinion, an Administrative Law Judge (ALJ) found that petitioner was entitled to accidental disability benefits. The Board of Trustees, Public Employees Retirement System (the Board), rejected that decision, determining that petitioner had not suffered a traumatic injury, and denied petitioner's claim.

On appeal, we remanded to the Board for reconsideration of its decision in light of the factual findings made by the ALJ. Nissel v. Bd. of Trs. of the Pub. Employees Ret. Sys., No. A-3044-03 (App. Div. Mar. 18, 2005). On remand, the Board accepted the facts as found by the ALJ, but again denied petitioner's claim for accidental disability benefits. We reverse.

At 10:20 p.m. on June 16, 2000, while petitioner was performing his duties as a custodian at the Hamilton Elementary School, he was injured while using an electric floor buffing machine to clean a carpeted area at the main entrance of the school. The buffer weighed between 75 and 100 pounds. It had an adjustable handle that could be raised to a vertical position perpendicular to the floor or lowered to a horizontal position parallel to the floor. Prior to operation, the operator of the buffer would adjust the handle to the desired angle and engage a handle locking device to secure the handle. Before using the machine, the operator would spray a cleaning solution on a small area of the carpet. By pressing a trigger on the handle, the operator would activate a buffing pad on the bottom of the machine. As the machine was used, the pad would spin and absorb cleaning solution, making the machine heavier. Once the operator released the trigger, it would take a second or two for the pad to stop spinning. The machine used by petitioner had malfunctioned on prior occasions, snapping the leg of a desk petitioner estimated to be 500 pounds, and cracking the tile and cinderblock of a wall.

On this occasion, petitioner had been using the machine for approximately eighteen to twenty-five minutes on a thirty to forty-foot section of carpet, when the handle slipped from its locked position and petitioner lost control of the machine. According to petitioner, the machine began moving like a "bucking bronco." He felt "tossed around like a rag doll" as he attempted to hold onto it. As petitioner held the handles of the machine in an attempt to regain control, the rear of the machine raised off of the ground by approximately a foot and landed on petitioner's left foot. The force of the machine's impact knocked him to the ground. He felt immediate pain in his left ankle. He has since undergone three surgeries on his foot and is unable to walk, stand or maneuver without severe pain, swelling, and stiffness. The degree of his disability is not in dispute.

An agency's determination of the facts is entitled to great deference. See S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 483-85 (App. Div. 2002). Courts generally have a limited role to play in reviewing the actions of other branches of government, but can intervene when "'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.'" Esposito v. Police & Fireman's Ret. Sys., 358 N.J. Super. 112, 122-23 (App. Div. 2003) (quoting In re Musick, 143 N.J. 206, 216 (1996)). The courts will intercede if an agency's bounds exceed its discretion. In re Distribution of Liquid Assets, 168 N.J. 1, 11 (2001).

A member of the Public Employees Retirement System shall be retired on an accidental disability allowance "if said employee 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." N.J.S.A. 43:15A-43. Benefits for accidental disability are substantially higher than those for ordinary disability, and thus, the eligibility requirements for an accidental disability allowance are more restrictive. Kane v. Bd. of Trs., Police & Firemen's Ret. Sys., 100 N.J. 651, 660 (1985) (discussing N.J.S.A. 43:16A-7, the language of which parallels that of N.J.S.A. 43:15A-43); see also Angiola v. Bd. of Trs., Pub. Employees' Ret. Sys., 359 N.J. Super. 552, 556 (App. Div. 2003) (noting the differences between ordinary and accidental retirement benefits). The Kane Court endeavored to "bring clarification" to the definition of the statutory term "traumatic event." 100 N.J. at 663. The standards set forth in Kane are applicable when interpreting N.J.S.A. 43:15A-43. See Angiola, supra, 359 N.J. Super. 552.

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." Kane, supra, 100 N.J. at 663. To determine whether a traumatic event has occurred, 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 that (3) the source of the injury itself was a great rush of force or uncontrollable power. Ibid.

For example, a firefighter who is gradually worn down over an extended period of time by the heat and flames of a fire suffers an injury that is part of the stress and strain of his duty; he is not entitled to accidental disability benefits. Ibid. The same is true of a firefighter who strains her back carrying a ladder or injures herself retrieving a hose from the fire truck. Ibid. Conversely, a firefighter struck by a falling beam or thrown off of a roof by a sudden explosion or blast of flame suffers an injury from a traumatic event and does qualify for accidental disability benefits. Ibid. The "focus of inquiry is on the event itself rather than the injury"; a showing of a permanent injury alone is not enough to trigger accidental disability benefits. See id. at 663, 664.

The Kane Court differentiated between injuries caused by an external force and injuries caused by the motion of the injured party's own body. Where an officer stepped on an uneven piece of concrete during a routine patrol, shifted his body weight to save himself from falling, and twisted his knee and ankle, the Court found that he had not been injured as a result of a "traumatic event" because he did not come into contact with the ground or another object. Id. at 654-55, 664.

Here, the Board asserts in its brief that petitioner was aware of the force of the machine, having operated it before and having previously observed it go out of control and cause property damage. Thus, the Board argues, petitioner's injury was the product of the normal stress and strain of his job. Yet, "[j]ust because an incident is a possible risk within the scope of one's employment, does not mean that it constitutes normal stress or strain." Esposito, supra, 358 N.J. Super. at 118 (where police officer directing traffic was injured leaping out of the way of an out-of-control vehicle). Infrequently occurring occupational hazards do not constitute normal stress or strain. See ibid. (citing Gable v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 115 N.J. 212, 223 (1989) (citing as examples of such hazards, a firefighter who is struck by a falling beam or is blown off of a roof, or a corrections officer who is assaulted by prisoners, and noting that such events are possible, but not commonplace).

The petitioner here was not injured because he tired from the physical effort required to control the machine during its normal operation. Such an injury would have been the product of the "work effort alone," Kane, supra, 100 N.J. at 665 (internal quotations omitted), and thus part of the normal stress or strain of the job. Rather, the malfunction of the machine was an abnormal circumstance and petitioner did not, every time he operated the machine, get "tossed around like a rag doll" by an uncontrollable machine with the force of a "bucking bronco." Merely because petitioner was aware that the machine might go out of control, just as the officer in Esposito was aware that a motorist might disobey his commands and strike him, 358 N.J. Super. at 118, does not mean that the risk of the machine going out of control was commonplace.

The "involuntary" prong should be read narrowly, so as not to discourage government employees from fully performing their duties. Gable, supra, 115 N.J. at 224 (the Court did not want corrections officers afraid of subduing unruly inmates or police officers apprehensive about pursuing fleeing suspects). In evaluating this prong, the Court's focus has not been on the voluntariness of the defensive measures taken when confronted with a traumatic risk. Angiola, supra, 359 N.J. Super. at 559. Instead, it has been on whether the employee set that risk in motion. Ibid. A toll booth operator injured when he jumped to avoid a car crashing into his toll booth did nothing that would occasion the car to go out of control. Id. at 554-55, 559.

Another example of a petitioner meeting involuntarily with the source of harm is found in DiBlasi v. Bd. of Trs., Pub. Employees' Ret. Sys., 315 N.J. Super. 298 (App Div. 1998). There, a hospital worker removed his foot from a heavy door, causing it to swing shut, driving the door handle into his back and pinning him between the door handle and a 750-850 pound laundry cart. Id. at 300. We concluded that simply because the petitioner had "voluntarily" removed his foot from the door, did not mean that he "voluntarily" met with the object or matter that was the source of the harm. Id. at 303. Conversely, in Kane, supra, a police officer who closed a fire hydrant by pounding his hand against a steel wrench "voluntarily" subjected his wrist to injury. 100 N.J. at 664. Therefore, because the injury did not originate from an involuntary exposure to a physical object; the officer became victim to a source of power that he himself put in motion. Id. at 664-65.

The factual circumstances here are similar to the circumstances in Angiola, supra, 359 N.J. Super. 552. In moving to avoid an out of control car, Angiola, a toll booth worker, lept backwards, striking his back on the counter behind him. Id. at 555. Here, petitioner held onto the machine to prevent injury to himself and to prevent damage to school property. Like the toll booth worker, while attempting to prevent physical harm to himself from an out-of-control force, petitioner was injured.

Petitioner did not "set in motion" the force that caused his injury. Though he set the machine itself in motion by turning it on, it was the malfunction of the machine, not the mere fact of its operation, that caused his injury. For eighteen to twenty minutes, the machine had operated without incident or injury. It then malfunctioned, lifted off of the ground, and landed on petitioner's foot. Like the toll booth worker in Angiola, petitioner "did nothing that would have occasioned the . . . [machine] to go out of control." See, supra, 359 N.J. Super. at 559. Similar to the hospital worker in DiBlasi, supra, petitioner may have taken some voluntary action setting in motion the events that eventually caused his injury, but he did not voluntarily "m[e]et with the object or matter that was the source of harm." 315 N.J. Super. at 303.

An important factor in determining whether a traumatic event has occurred is whether the individual comes into contact with the ground or another physical object. Esposito, supra, 358 N.J. Super. at 119. Kane and subsequent decisions have demonstrated that a "traumatic event" requires the operation of an external force on the injured party. For example, a mere slip and fall at ground level is not sufficient to constitute a "traumatic event," though falls from a height may be. Id. at 119-20. Slip and fall cases do not constitute "traumatic event[s]" because no power or force originates anywhere except from the person falling; any gravitational force generated by the fall cannot be considered "great." Maynard v. Bd. of Trs. of The Teachers' Pension & Annuity Fund, 113 N.J. 169, 175 (1988). Where a person falls from a height, the distance of the fall generates a gravitational force that is "great." See ibid.

In Angiola, supra, the court determined that even though the petitioner was not struck by the out-of-control vehicle, the car constituted a "great rush of force and uncontrollable power," and that the event as a whole was traumatic. 359 N.J. Super. at 560-61. The Esposito court reached the same result in similar circumstances, where a police officer injured his knee leaping out of the way of a vehicle moving at forty to forty-five miles per hour. Supra, 358 N.J. Super. at 115, 121-22.

Likewise, in Fawcett v. Bd. of Trs. of the Pub. Employees' Ret. Sys., 307 N.J. Super. 378, 379-80 (App. Div. 1998), an employee was sitting in the front seat of a government vehicle moving five to ten miles per hour when her seat slid to the rear of its range adjustment, causing the petitioner to strike her head against the seat back and headrest. Id. at 380. The court deemed this to be a traumatic event, finding "the forces which propelled petitioner . . . were totally external," and noting that there was actual impact between the petitioner and the vehicle's interior. Id. at 382.

The Board argues that Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22 (1995) is persuasive authority. In Mazza, a police officer was injured when his horse reared up, causing him to twist in his saddle and rupture discs in his back. Id. at 23. The Court affirmed "not because no . . . twisting case can ever be considered traumatic, but because this twisting case was found not to be traumatic" by the Board. Id. at 25.

We are not convinced by the Board's argument. The incident in Mazza was substantively different from the incident here. Officer Mazza never came into contact with either the ground or another physical object. Rather, he ruptured spinal discs when his body twisted in the saddle. Mazza, supra, 143 N.J. at 23. Mazza's injury was like that of the police officer in Kane who stepped on an uneven piece of concrete: though severe, it resulted from the internal movements of his own body, not from a violent collision with an external physical object. See Flores v. Bd. of Trs. of the Pub. Employees Ret. Sys., 287 N.J. Super. 274, 279 (App. Div. 1996) (articulating why Officer Mazza's injury was not the product of a "traumatic event" and noting that the result might be different if Mazza was thrown from the horse and injured his back landing on a rock); see also Fawcett, supra, 307 N.J. Super. at 382 ("in Mazza . . . there was no impact").

The instant case is unlike Mazza and very much like Angiola, Esposito, DiBlasi, and Fawcett. Here, the ALJ concluded, and the Board accepted, that the buffing machine was like a "bucking bronco" that "tossed [petitioner] around like a rag doll." Petitioner met with a great rush of force and an uncontrollable power from an external source the 75 to 100 pound buffing machine that made direct contact with his body.

Reversed and remanded for further proceedings consistent with this opinion.

 

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A-6281-04T1

October 30, 2006