IN THE MATTER OF THOMAS B. TIEFENBACHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5218-07T15218-07T1

IN THE MATTER OF THOMAS B. TIEFENBACHER.

___________________________________________

 

Argued September 21, 2009 - Decided

Before Judges Reisner and Chambers.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury.

John Vincent Saykanic argued the cause for appellant Thomas B. Tiefenbacher.

Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent Board of Trustees of the Public Employees' Retirement System (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief).

PER CURIAM

Applicant Thomas B. Tiefenbacher appeals from the final decision of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denying his application for accidental disability retirement benefits. We affirm, concluding that the record is sufficient to support the Board's finding that Tiefenbacher does not qualify for accidental disability retirement benefits.

I

Tiefenbacher's claim for accidental disability benefits arises from an injury to his foot that occurred in the courthouse where he worked as the Passaic County Deputy Surrogate. At the administrative hearing, Tiefenbacher testified that in accordance with his usual routine, he reported to work early on June 5, 2003. After opening the office, he went down to the courthouse cafeteria for some food to take with his medication. On the way back to his office, while walking up the stairway, he stepped on a piece of metal that punctured his foot. He estimated this took place at about 7:40 a.m. When he arrived back at his office, he went to sleep at his desk and was not awakened until the end of the day at 4:00 p.m. Once he arrived home, he collapsed and was taken to the hospital.

Tiefenbacher was hospitalized, and his final diagnosis was cellulitis of the lower extremity, sepsis, and venous insufficiency. The record indicates that Tiefenbacher had numerous pre-existing health problems, including diabetes and hypertension; he had suffered a myocardial infarction and underwent coronary artery bypass surgery in 1996; and in 2001 he had a carotid endarterectomy. The parties dispute whether Tiefenbacher had pre-existing ulcers on his feet. Although Tiefenbacher returned to work, he lost his job at the end of 2003. He contends that the puncturing of his foot caused the sepsis which in turn triggered a cascade of medical problems, aggravating his pre-existing medical conditions, and led to his disability.

Tiefenbacher thereafter applied for accidental disability retirement benefits. In order to qualify for accidental disability retirement benefits, the applicant must have become "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.

The Board, by letter dated September 21, 2006, found that Tiefenbacher was disabled and unable to perform his regular or assigned duties, and as result, concluded that he was entitled to ordinary disability retirement benefits. The Board denied his application for accidental disability retirement benefits because the incident was not a "traumatic event" and because his disability was not a direct result of the incident. Tiefenbacher appealed, and the matter was scheduled before an administrative law judge (ALJ).

In the initial decision of November 20, 2009, the ALJ found that Tiefenbacher had pierced his foot on a piece of metal on June 5, 2003. However, the ALJ accepted the testimony of the Board's medical expert who opined that the sepsis had been developing in Tiefenbacher before he stepped on the piece of metal. As a result, the ALJ concluded Tiefenbacher's disability was not a direct result of stepping on the metal, and he denied Tiefenbacher's application for accidental disability retirement benefits. Further, the ALJ noted that "[e]ven if the sepsis were caused by the event, a fact that I do not find, it aggravated those serious underlying conditions. Under these circumstances, the event could not have been the essential significant or substantial contributing cause of the disability," in light of Gerba v. Board of Trustees, Public Employees' Retirement System, 83 N.J. 174, 187 (1980).

On December 12, 2007, the Board adopted the ALJ's finding that Tiefenbacher's disability was not the direct result of the June 5, 2003 incident. Presumably, to complete the record, the Board remanded the case back to the ALJ to determine whether the incident occurred during and as a result of the performance of Tiefenbacher's regular or assigned duties in light of the then recent Supreme Court decision of Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007). Although the ALJ thereafter resolved this question in Tiefenbacher's favor, the benefits were denied on the basis that the disability was not a direct result of the traumatic event.

The Board disagreed with the ALJ's conclusion that the incident took place during and as a result of the performance of Tiefenbacher's regular or assigned duties. Nonetheless, Tiefenbacher's accidental disability retirement benefits remained denied based on the earlier conclusion that the incident did not directly result in his disability.

II

On appeal, Tiefenbacher contends that the Board erred when it denied him disability benefits. He contends that he stepped on the piece of metal "during and as a result of the performance of his regular or assigned duties" and that as a "direct result" of the puncture to his foot and the resulting medical complications, he became disabled.

To qualify for accidental disability retirement benefits, the applicant must meet three requirements: (1) the applicant must be "permanently and totally disabled"; (2) the disability must be the "direct result of a traumatic event"; and (3) the traumatic event must have occurred "during and as a result of the performance of his regular or assigned duties." N.J.S.A. 43:15A-43. To prevail on his claim for accidental disability retirement benefits, Tiefenbacher must meet all three criteria; failure to meet any one will defeat his claim. The record is undisputed that Tiefenbacher is permanently and totally disabled, thereby the first criteria is satisfied. However, the parties dispute whether the second and third criteria have been met.

When considering the second criteria, namely Tiefenbacher's contention that his disability is the "direct result" of stepping on the metal, we note that the inclusion of the phrase "direct result" in the statute was designed "to make the granting of an accidental disability pension more difficult" and "to impose a more exacting standard of medical causation." Gerba v. Bd. of Trs., PERS, supra, 83 N.J. at 183, 185; see Richardson v. Bd. of Trs., PFRS, supra, 192 N.J. at 199, 210 (discussing similar language in N.J.S.A. 43:16A-7(1) and clarifying that the amendments were designed to make obtaining accidental disability benefits "more difficult than the broad workers' compensation causation standard"). However, the fact that Tiefenbacher's pre-existing medical conditions combined with the traumatic event to cause his disability would not necessarily defeat his claim. The Court has recognized that:

[A]n accidental disability in some circumstances may arise even though an employee is afflicted with an underlying physical disease bearing causally upon the resulting disability. In such cases, the traumatic event need not be the sole or exclusive cause of the disability. As long as the traumatic event is the direct cause, i.e., the essential significant or substantial contributing cause of the disability, it is sufficient to satisfy the statutory standard of an accidental disability even though it acts in combination with an underlying physical disease.

[Gerba v. Bd. of Trs., PERS, supra, 83 N.J. at 187.]

In this case, Tiefenbacher presented medical testimony opining that he contracted sepsis on the day he stepped on the piece of metal and that his underlying medical condition, including his diabetes, contributed to the rapid development of that condition. This testimony was contradicted by the medical expert for PERS who testified that the sepsis could not have been contracted so quickly and that the condition was developing before Tiefenbacher stepped on the piece of metal. The ALJ believed the testimony of the expert for PERS, finding his testimony "more persuasive regarding the advent of sepsis." He concluded that Tiefenbacher had not established that his disability was the direct result of stepping on the piece of metal. The Board accepted the findings of the ALJ on this point.

Our review of an agency decision is limited. In re Musick, 143 N.J. 206, 216 (1996). An administrative agency is presumed to have acted reasonably. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993) aff'd, 135 N.J. 306 (1994). An agency's decision will be sustained unless appellant makes "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). In this inquiry, we look at whether the agency followed the law in light of the express or implied legislative policies involved, whether the agency's findings are supported by substantial evidence and "whether 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." Id. at 28 (quoting Mazza v. Bd. of Trs., PFRS, 143 N.J. 22, 25 (1995)).

 
Here the record contains sufficient evidence to support the conclusion that Tiefenbacher's stepping on the piece of metal did not cause his sepsis and was not an essential significant or substantial contributing cause of his sepsis and resulting disability. The Board's expert testified clearly on this point and provided an explanation of the development of sepsis to support his opinion. Without establishing that his disability was a direct result of stepping on the piece of metal, Tiefenbacher's application for accidental disability retirement benefits must fail. Accordingly, we need not reach the question of whether the traumatic event occurred during and as a result of Tiefenbacher's regular and assigned duties.

Affirmed.

(continued)

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A-5218-07T1

October 9, 2009