CHARLES MARKEY 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NOT FOR PUBLICATION WITHOUT THE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-4126-05T54126-05T5

CHARLES MARKEY,

Petitioner-Appellant,

v.

POLICE AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent-Respondent.

______________________________________

 

Argued January 24, 2007 - Decided February 28, 2007

Before Judges Fuentes and Baxter.

On appeal from a Final Agency Decision

of the Police and Firemen's Retirement System.

Francis Rodman Rupp argued the cause for

appellant.

Dawn M. Harris, Assistant Attorney General,

argued the cause for respondent (Stuart Rabner,

Attorney General, attorney; Michael Haas,

Assistant Attorney General, of counsel; Ms. Harris,

on the brief).

PER CURIAM

Petitioner Charles Markey appeals from the final decision of the Police Firemen Retirement System Board (Board) denying his application for accidental disability pension benefits pursuant to N.J.S.A. 43:16A-7. The Board awarded petitioner ordinary disability benefits. The Board found that petitioner's back injuries, sustained from a slip-and-fall accident while petitioner was on patrol as an Island Heights Police Officer, did not constitute a traumatic injury under the three-part test articulated by the Supreme Court in Kane v. Board of Trustees, 100 N.J. 651, 663 (1985). We affirm.

The case was initially referred to the Office of Administrative Law for a plenary hearing. After the Administrative Law Judge issued her Initial Decision, the matter was referred to the Board for a final determination. In the course of rendering its determination, the Board made the following factual findings:

Mr. Markey testified that, while on duty for the 3-11 P.M. shift in the Borough of Island Heights, he was on patrol checking a beach area. He observed two figures (presumably people) about 50-60 yards from shore walking on the ice. He also observed that close to the shore there was a 3-5 foot gap of water and broken ice chunks, apparently caused by the tide changes. While standing on shore near the edge of water in an attempt to stop the people from running towards the open water, Mr. Markey slipped on a large chunk of ice. Mr. Markey fell, landing on his lower back on another piece of ice. He landed parallel with the water and then began sliding towards the water's edge. His legs apparently went into the water as Mr. Markey testified that both pant legs were soaked when he returned to the station. Mr. Markey stopped his slide by grabbing at chunks of ice, then climbed the small embankment back to his patrol car and drove the two blocks to his station [where] he waited approximately 25 minutes for his replacement to arrive. Mr. Markey then drove two blocks to his home.

Against these facts, the Board determined that this incident did not constitute a traumatic event, as that term has been construed by the Supreme Court in Kane. Under the Kane test, an applicant for benefits for accidental disability pension benefits pursuant to N.J.S.A. 43:16A-7, 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) the source of the injury itself was a great rush of force or uncontrollable power. Kane, supra, 100 N.J. at 663.

The Board found that petitioner's injury did not satisfy the first prong of the Kane test because responding to situations where people put themselves in dangerous conditions, and venturing onto unstable terrains, such as an icy bay, is part of the normal stress and strain associated with the work of a police officer. With respect to the second prong, the Board acknowledged that the Supreme Court has held that slip and fall accidents were, by definition, involuntary events. Maynard v. Bd. of Trs. of the Teacher's Pension and Annuity Fund, 113 N.J. 169, 177 (1988).

Finally, with respect to prong three, the Maynard court also held that slip and fall accidents are not "traumatic events" because "no force or power originates anywhere except from the person falling." Id. at 175. This principle was reaffirmed in Ciecwisz v. Board of Trustees, Police and Firemen's Retirement System, 113 N.J. 180, 181 (1988), in which the Court denied a corrections officer's traumatic injury benefits application based on injuries he sustained from a fall, after he slipped on cooking oil that had been spilled by prison inmates.

Petitioner argues that the Board incorrectly construed the relevant legal principles applicable to prong one of the Kane test because venturing onto the dangerous conditions created by an icy bay was not within the normal scope of his duties as a police officer. With respect to prong three of the Kane test, petitioner argues that what caused him to fall was not the mere slippery nature of ice, but the great force of water rushing underneath the ice, which caused the ice chunks to break apart.

The scope of our review of a final decision of an administrative agency is limited. "'[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980)). "Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Mindful of this standard of review, we reject petitioner's argument and affirm substantially for the reasons expressed by the Board in its written decision.

Affirmed.

 

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A-4126-05T5

February 28, 2007