JEFFREY CLAYTON v. PUBLIC EMPLOYEES RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JEFFREY CLAYTON,

Petitioner-Appellant,

v.

PUBLIC EMPLOYEES' RETIREMENT

SYSTEM,

Respondent-Respondent.

____________________________________

March 28, 2014

Submitted January 15, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS #2-10-262654.

Chamlin, Rosen, Uliano & Witherington, attorneys for appellant (James J. Uliano, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert E. Kelly, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Jeffrey Clayton appeals from a final decision of the Board of Trustees of the Public Employees' Retirement System (Board), denying his application for accidental disability benefits. The Board determined that petitioner did not establish that his disabling condition was a direct result of a traumatic event. We affirm.

The undisputed facts of record reflect that petitioner was employed by the Long Branch Board of Education as a maintenance worker from 1982 until 2011. Following a heavy snowfall in January 2010, he was asked to shovel a large pile of snow onto a parking lot to facilitate faster melting. Although there was a backhoe available, petitioner was directed to move the snow with a shovel. While shoveling, petitioner felt a severe pain in his back and legs, which affected his feet. As a result of his unusually strenuous effort, petitioner suffered injuries which eventually required back surgery.

Petitioner applied for accidental disability benefits in June 2010. The Board determined that he was totally and permanently disabled as a direct result of the snow-shoveling incident. The Board also determined that the incident was identifiable as to time and place; was caused by an external circumstance and not the result of a pre-existing disease; occurred during and as a result of petitioner's performance of his regular duties; and was not the result of willful negligence. Notwithstanding those findings, the Board denied his application for accidental disability retirement benefits because his disabling incident was not "undesigned and unexpected" and instead awarded him ordinary disability retirement benefits.

Petitioner appealed, and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. The Board thereafter moved for summary decision. The parties having waived oral argument, ALJ Stein granted the Board's motion denying petitioner's application for accidental disability on the papers submitted.

Relying on Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), and Brooks v. Board of Trustees, Public Employees Retirement System, 425 N.J. Super. 277 (App. Div. 2012), the ALJ determined that the shoveling in which petitioner was engaged at the time of his injury could not be deemed an unintended external event occurring during the performance of his duties. Because petitioner's injury was as a result of the shoveling itself and not some unintended event, such as the shovel suddenly breaking in his hands or being felled by an overhanging tree branch collapsing under the weight of the snow, ALJ Stein concluded that petitioner was injured solely as a result of his intended work effort. He also concluded that although petitioner's injuries "were an unanticipated consequence of an intended external event, his injuries are not unusual or extraordinary in common experience when shoveling large amounts of snow. . . . [A]ccidental disability retirement benefits may not be awarded for an injury resulting from the performance of strenuous work."

The Board adopted the ALJ's findings of fact and conclusions of law on September 19, 2012. This appeal followed.

Petitioner argues on appeal that the Board erred in adopting the ALJ's finding that he did not satisfy the requirements for accidental disability benefits. We disagree.

Our role in reviewing the decision of an administrative agency is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a strong presumption of reasonableness to an agency's exercise of its statutorily delegated responsibility, City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to its fact finding. Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 29 (1995) (Handler, J., dissenting). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Although we are not bound by an agency's decision on purely legal questions, courts ordinarily give "substantial deference" to an agency's interpretation of those statutes that the agency is responsible for enforcing. Richardson, supra, 192 N.J. at 196. If the statute is ambiguous or silent on a particular point, we may not substitute our judgment for that of the agency so long as the agency's determination is based on a permissible construction of the statute it is enforcing. Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 580-81 (2000).

In Richardson, the Supreme Court determined that an individual seeking accidental disability benefits under N.J.S.A. 43:16A-7(1) must establish:

1. that he is permanently and totally disabled;

2. as a direct result of a traumatic event that is

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external

to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

4. that the disability was not the result of the member's willful negligence; and

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Richardson, supra, 192 N.J. at 212-13.]

Here, there is no question as to petitioner having been disabled as a result of his work, as demonstrated by the Board's having granted him ordinary disability retirement benefits. The sole issue was whether petitioner's disability was the result of a traumatic event. He argues, as he did before the ALJ, that he "suffered an injury that was undesigned and unexpected." As ALJ Stein explained, however, petitioner suffered an unanticipated consequence while performing his regular and assigned duties. The type of injury he suffered is not unusual or extraordinary when shoveling snow. Petitioner's injury was caused by his ordinary, albeit strenuous, work effort, which does not qualify as a traumatic event. See Richardson, supra, 192 N.J. at 213 (explaining that a police officer who has a heart attack while chasing a suspect has not experienced a traumatic event because the work effort, either "alone or in combination with pre-existing disease," was the cause of the injury).

Upon review, we find no basis to suggest the Board's adoption of ALJ Stein's findings was arbitrary or capricious. The ALJ's findings were fully supported by substantial credible evidence in the record and in accord with the controlling statute. Accordingly, there is no basis to alter the Board's denial of petitioner's application for accidental disability retirement benefits. In re Young, 202 N.J. 50, 70 (2010).

Affirmed.