KEISHA CARMICHAEL 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NOT FOR PUBLICATION WITHOUT THE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-0

KEISHA CARMICHAEL,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

_____________________________________

March 28, 2014

Argued February 26, 2014 Decided

Before Judges Grall and Accurso.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System,

Department of Treasury, PFRS #3-10-44006.

John E. Lanza argued the cause for appellant (Lanza & Lanza, LLP, attorneys; Mr. Lanza, of counsel; John E. Lanza, on the brief).

Chris M. Tattory, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Tattory, on the brief).

PER CURIAM

Keisha Carmichael appeals from a final decision of the Board of Trustees of the Police and Firemen's Retirement System (Board), denying her application for accidental disability benefits. The Board determined that Carmichael did not establish that her disabling condition was a direct result of a traumatic event. We affirm.

The record reflects that Carmichael was employed by the Department of Corrections (DOC) as a senior corrections officer assigned to the Central Reception and Assignment Facility (CRAF), a one hundred-year-old prison in West Trenton. On October 26, 2009, Carmichael injured her shoulder while manually operating a cell door. She immediately sought medical attention and was diagnosed with a tear to her right rotator cuff. Although her physician opined that she could return to work with restrictions, those restrictions prohibited her from restraining or controlling inmates. Accordingly, Carmichael was not able to return to her job.

Carmichael applied for accidental disability retirement benefits. The Board determined that she was totally and permanently disabled as a direct result of the incident in which she injured her shoulder and physically or mentally incapacitated from the performance of her usual duties. 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 Carmichael's performance of her regular duties; and was not the result of willful negligence. Notwithstanding those findings, the Board denied her application for accidental disability retirement benefits because her disabling incident was not "undesigned and unexpected" and instead awarded her ordinary disability retirement benefits. Carmichael appealed, and the matter was transferred to the Office of Administrative Law (OAL) for a hearing as a contested case.

The only witness to testify at the hearing was Carmichael, who claimed that she was injured when the lever she was operating jammed. According to Carmichael, the cell doors at CRAF were operated manually through a system of levers, chains and pulleys. Once the operator selected the door to be opened, she had to squeeze the handle of a large leaver and pull it toward her to release it, thus allowing the door to move. The operator then had to raise the lever to its highest level to fully open the door. Moving the lever required some physical effort. Carmichael explained that she accomplished the task by first pulling up on the lever after its release and then pushing up on it to the end of its movement at her shoulder level. She testified that she injured her shoulder when the door lever jammed midway through its travel as she was pushing up on it.

Carmichael testified that she had operated the door over three hundred times before this incident and never experienced a jam. She also explained that the lever did not recoil, it just jammed, leaving the door open half-way. There was no testimony that the lever was inspected or required repair as a result of the incident.

The administrative law judge (ALJ) issued an initial decision upholding the Board's denial of accidental disability retirement benefits to Carmichael. Relying on Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), and Cattani v. Board of Trustees, Police & Firemen's Retirement System, 69 N.J. 578 (1976), the ALJ found Carmichael's injury was as a result of ordinary, albeit strenuous, work effort. "Raising levers manually that were old and antiquated was clearly an ordinary work effort and an injury associated with such effort does not satisfy the criteria for accidental disability." The ALJ likened Carmichael's shoulder injury to the injury the petitioning firefighter suffered in Cattani. The ALJ reasoned that because Carmichael "was injured while doing her usual work in the usual way," the incident could not be considered undesigned and unexpected. Cattani, supra, 69 N.J. at 586.

The Board adopted the ALJ's findings of fact and conclusions of law on January 14, 2013. This appeal followed.

Carmichael argues on appeal that the Board erred in adopting the ALJ's finding that she did not satisfy the requirements for accidental disability benefits. Specifically, she contends that because the malfunction of the jail cell lever was unexpected and undesigned, she is entitled to accidental disability benefits as a matter of law. 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 Carmichael having been disabled as a result of her work, as demonstrated by the Board's having granted her ordinary disability retirement benefits. The sole issue was whether her disability was the result of a traumatic event. Carmichael argues that although operating the cell lever was a part of her regular job tasks, its sudden malfunction qualifies as an unexpected happening under Richardson.1

While we have no difficulty in agreeing that a traumatic event can occur during usual work effort, Richardson makes clear that the "work effort itself . . . cannot be the traumatic event." Richardson, supra, 192 N.J. at 211. Here, Carmichael tore her rotator cuff while pushing up on the cell lever as it stopped moving. There was no allegation that the mechanism recoiled or slammed down on her, it simply stopped moving as she continued to apply upward force against it. Accordingly, Carmichael suffered "an unanticipated consequence of an intended external event." Id. at 201 (quoting Russo v. Teachers' Pension & Annuity Fund, 62 N.J. 142, 154 (1973)).

Because Carmichael's operation of the cell lever was not undesigned and unexpected, she had to prove that the unanticipated consequence of that normal intended work activity was "extraordinary or unusual in common experience." Ibid. As a rotator cuff injury from pushing against a large lever can hardly be classified as extraordinary or unusual in our common experience, the ALJ was correct that Carmichael did not carry her burden. As the ALJ concluded, Carmichael's injury was caused by her ordinary 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 the ALJ'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 Carmichael's application for accidental disability retirement benefits. In re Young, 202 N.J. 50, 70 (2010).

Affirmed.

1 Carmichael also relies on Caminiti v. Board of Trustees, Police & Firemen's Retirement System, 431 N.J. Super. 1 (App. Div. 2013), for the proposition that "even accidents that can be expected to occur due to a mishap during standard procedures are still undesigned and unexpected." Caminiti involved the psychological trauma of an officer exposed to the AIDS virus while subduing a violent suspect. Id. at 7-8. It has no applicability to this matter.