MARY BURNS 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NOT FOR PUBLICATION WITHOUT THE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-5212-05T25212-05T2

MARY BURNS,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

________________________________

 

Argued June 4, 2007 - Decided August 10, 2007

Before Judges Lintner and C.L. Miniman.

On appeal from a Final Notice of Administrative Action, Board of Trustees, Police and Firemen's Retirement System, 3-10-31814.

James M. Clancy argued the cause for appellant (Bafundo, Porter, Borbi & Clancy, attorneys; Mr. Clancy, on the brief).

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

PER CURIAM

Appellant Mary Burns (Burns) applied on November 3, 2004, for an accidental disability pension from the Police and Firemen's Retirement System (PFRS). On February 14, 2005, the Board of Trustees of the PFRS (Board) found that Burns was totally and permanently disabled from the performance of her job duties as a direct result of an incident at work on May 21, 2003, entitling Burns to a disability pension. However, the Board preliminarily concluded that the incident was not a "traumatic event" that would entitle Burns to the higher benefits of an accidental disability pension. Burns appealed and the matter was referred to the Office of Administrative Law (OAL). A hearing was conducted before an Administrative Law Judge (ALJ), who concluded in an initial decision that Burns was entitled to an accidental disability pension. On review the Board of Trustees, although adopting the ALJ's findings of fact, rejected his initial decision and denied Burns' application for an accidental disability pension. This appeal followed and we reverse.

As found by the ALJ, Burns was a police officer who had been employed by the Pennsauken Township Police Department for sixteen years until she was injured on May 21, 2003. Her duties included patrol, traffic control, and response to service calls, including back-up of emergency medical technician (EMT) calls. Burns was also an EMT. On the date of the incident, Burns responded to a medical-assist call in connection with a possible drug overdose. When she arrived at the scene, the patient was asleep in a bedroom. After Burns awoke her, the patient related that she had taken forty-five Valium pills the night before. Then, another police officer and the EMT squad arrived, and Burns informed them of the situation. They determined that the second police officer's presence was not necessary because everything was calm and controlled.

The patient agreed to go to the hospital and was given permission to brush her teeth and hair. The patient stated that she wanted to shower, but Burns told her there was not enough time to do so. The patient then became very agitated and violent and pushed her way into the bathroom. Burns used her foot to prevent the patient from closing and locking the bathroom door. When the patient opened the door, Burns attempted to physically restrain the patient who was kicking and screaming. During the struggle Burns' arm hit the faucet in the bathroom sink and her head hit the door. Burns wrestled the patient to the floor and a female EMT attempted to help hold the patient who was still struggling violently. During the struggle, Burns' body and head hit the door, the door frames, and the walls.

Eventually, Burns succeeded in restraining the patient in a sitting position in a hallway and the patient calmed down. After Burns had the patient stand up, she again became agitated and, again, Burns had to tackle her to the ground. As they fell, Burns' left arm, which had been restraining the patient's left arm, hit the ground first. Burns finally succeeded in handcuffing the patient, who was placed on a stretcher, still kicking. At the hospital there was another altercation between the patient and the hospital security guards. At that point, Burns began to experience pain in her left wrist, which began to swell. The left wrist injury ultimately led to Burns' permanent and total disability from the performance of her job duties.

At the hearing before the ALJ, Burns testified that an altercation such as this was a rare event and not typical of her job duties, particularly because it was not a regular arrest situation. Most altercations are minor scuffles and Burns stated that she had never experienced one this severe. She opined that the patient was three times as strong as she was. On cross-examination Burns admitted that she had restrained unruly individuals before this occasion, and that she had received training in street survival, arm-to-arm combat and training with a baton. She expressed that it was rare to have someone resist as vigorously as the patient did here.

In the initial decision the ALJ found the testimony of Burns "entirely credible." Citing N.J.S.A. 43:16A-7, the ALJ observed "that a member of PFRS is entitled to accidental disability benefits if 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 regular or assigned duties." The only issue before the judge was whether Burns' total and permanent disability, which was caused by injuries sustained during the course of her employment, arose from a traumatic event, rather than from her normal work effort.

The judge found "that a police officer's involvement in minor scuffles with unruly suspects in order to subdue them . . . is part of a police officer's normal work effort." He then found that the incident during which Burns was injured "was not merely a police officer being involved in a minor scuffle with an unruly subject in order to subdue the subject for some lawful purpose." He further found that "subduing an aggressive and violent subject engaged in a violent physical struggle[] is not part of the normal work effort of a police officer," satisfying the first of three prongs of the proofs required to establish entitlement to an accidental disability pension under Kane v. Board of Trustees, Police & Firemen's Retirement System, 100 N.J. 651, 663 (1985), which requires that a worker 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.

The ALJ then concluded that Burns "did not conduct herself in any manner from which it may be inferred that she met voluntarily with the source of her injury," satisfying the second prong of Kane. In addressing the third prong, the judge acknowledged that the "great rush of force or uncontrollable power," ibid., in this case did "not quite rise to the level of violence which was found to have occurred in Gable [v. Board of Trustees of the Public Employees' Retirement System, 115 N.J. 212, 215-16 (1989),] in three separate incidents." Nonetheless, after reviewing the evidence relating to the struggle in which Burns was engaged, the judge found that "this incident . . . , particularly when their body momentum caused petitioner's left arm to strike the ground, qualifies as a 'great rush of force or uncontrollable power.'" As a consequence, he determined that the third prong of Kane had been satisfied and that Burns was entitled to an accidental disability pension.

After accepting the fact findings made by the ALJ, the Board rejected his ultimate conclusions and determined that the injuries suffered by Burns "were (1) induced by the 'stress or strain of the normal work effort', and (2) that the incident as testified to did not constitute a 'great rush of force or uncontrollable power.'" The Board specifically found that "[t]he incident rendering Ms. Burns disabled was not a violent, sought-after assault . . . , but a minor scrape or scuffle, and therefore, Ms. Burns is not eligible for accidental disability benefits." The Board concluded "that the incident rendering Ms. Burns totally and permanently disabled does not qualify as a 'traumatic event' under the pension statute and relevant case law." Accordingly, an accidental disability pension was denied.

Pending the appeal in this matter, our Supreme Court decided Richardson v. Board of Trustees, Police and Firemen's Retirement System, ___ N.J. ___, ___ (2007). Richardson is dispositive of the issues before us. This is so because in Richardson a corrections officer was injured as a result of a struggle while attempting to subdue an inmate, and here Burns was injured as a result of a struggle while attempting to subdue a patient. Accordingly, we reverse and remand this matter to the Board for disposition consistent with Richardson and this opinion.

 
Reversed and remanded.

In order to qualify for an accidental disability pension, the employee must meet the applicable statutory criteria. For police and firemen, the applicable statute is N.J.S.A. 43:16A-7(1), which provides in pertinent part:

Upon the written application by a member in service, by one acting in his behalf or by his employer any member may be retired on an accidental disability retirement allowance; provided, that the medical board, after a medical examination of such member, shall certify 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.

(continued)

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A-5212-05T2

August 10, 2007