AUNDREA MASON v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0823-16T2



AUNDREA MASON,

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,

     Respondent-Respondent.
_____________________________

              Argued January 17, 2018 - Decided February 5, 2018

              Before Judges Hoffman and Mayer.

              On appeal from the Board of Trustees, Police
              and Firemen's Retirement System, PFRS No.
              3-10-050251.

              Samuel M. Gaylord          argued the cause for
              appellant (Gaylord         Popp, LLC, attorneys;
              Samuel M. Gaylord,         of counsel and on the
              brief).

              Daniel F. Thornton, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Melissa H.
              Raksa, Assistant Attorney General, of counsel;
              Daniel F. Thornton, on the brief).
PER CURIAM

     Petitioner Aundrea Mason appeals from a final agency decision

of the Board of Trustees of the Police and Firemen's Retirement

System (Board) denying her application for accidental disability

retirement benefits.      We affirm.

     Mason claims she was injured on January 30, 2013, while

qualifying with a firearm for her work as an officer with the

Department of Corrections (DOC).       On the date of her injury, Mason

was qualifying with a shotgun at the firing range under the

supervision of an instructor.      Mason had qualified on the range

each year for the prior eighteen years without injury.            While

qualifying with a shotgun in 2013, Mason felt a soreness in her

shoulder but continued with the qualification process to obtain

her firearms certification.     After qualifying, Mason reported her

injury, filled out paperwork, and went to the emergency room for

treatment.   Mason subsequently had several shoulder surgeries, did

not return to work, and was terminated.

     Mason   filed   an    application    for   accidental   disability

retirement benefits on July 15, 2014.       The Board awarded ordinary

retirement benefits to Mason, finding her to be totally and

permanently disabled from the performance of her assigned duties.

However, the Board determined that the incident was not undesigned

and unexpected to qualify for accidental disability retirement

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benefits.    The Board concluded that Mason was required to qualify

with firearms as part of her job duties and was familiar in use

of a shotgun.       The potential recoil from firing a shotgun was

anticipated and expected based on Mason having qualified with a

shotgun in each of the eighteen years prior to the incident.

      Mason requested a hearing, and the Board referred the matter

to the Office of Administrative Law (OAL).

      An administrative law judge (ALJ) heard testimony from Mason.

The Board did not call any witnesses.          At the OAL hearing, Mason

testified regarding the firearms qualification process. According

to Mason, a range instructor supervised her qualification process.

After qualifying with a handgun, Mason was given a shotgun by the

range instructor.        Mason testified that she fired the shotgun a

few times and her shoulder felt sore.           Mason explained that she

did   not   stop   the   qualification    process   because   she   required

certification to maintain her position with the DOC.

      The ALJ found there was "no dispute in the record that the

recoil from the shotgun was sufficient to cause the injury which

led to petitioner's disability."         While Mason argued she had never

experienced injury at any time during the eighteen years that she

previously qualified with a shotgun, the ALJ concluded that:

            Mason was performing a regular duty in which
            she had received training and which she had
            successfully completed over the course of her

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           career. While a shotgun may be difficult to
           control, there was nothing in the record to
           show that the gun malfunctioned in some manner
           or that there was something external to the
           gun which may have affected its performance.

Based on these finding, the ALJ determined that the incident did

not qualify as an unexpected happening for an award of accidental

disability retirement benefits.

     The Board adopted the ALJ's initial decision and denied

Mason's application for accidental disability retirement benefits.

     On appeal, Mason argues the Board improperly denied her

application because the shotgun incident on the firing range was

undesigned and unexpected.    Mason, relying on Moran v. Board of

Trustees Police and Firemen's Retirement System, 
438 N.J. Super.
 346 (App. Div. 2014), claims that experiencing shoulder soreness

on this occasion, when she had not experienced shoulder soreness

in any of the eighteen prior years of qualifying with firearms,

was an "unusual" and "extraordinary" circumstance constituting an

event that was "undesigned" and "unexpected."

     The standard of appellate review from a final agency decision

is deferential.   An agency determination should not be reversed

"unless it is arbitrary, capricious or unreasonable or it is not

supported by substantial credible evidence in the record as a

whole."   Lavezzi v. State, 
219 N.J. 163, 171 (2014) (quoting Prado

v. State, 
186 N.J. 413, 427 (2006)).        However, we review an

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agency's legal interpretations de novo. Id. at 172.                               "Generally,

courts afford substantial deference to an agency's interpretation

of    a    statute     that     the    agency      is    charged         with     enforcing."

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 
192 N.J.
 189, 196 (2007).

          A member of the Police and Firemen's Retirement System is

eligible for accidental disability retirement 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 his [or her] regular or assigned duties . . . ."

See 
N.J.S.A. 43:15A-43.

          The   Richardson     Court    set     forth        the    following      factors      a

claimant        must    prove    to     qualify         for        accidental      disability

retirement benefits:

                1. [the claimant] 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);


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            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.

            [
192 N.J. at 212-13.]

       We find that the facts in this case are distinguishable from

the facts in Moran.         Moran, a firefighter, was injured while

performing the heroic act of breaking down a door to enter a

burning building and rescuing two people who were trapped inside,

a task not within his normal duties.1      Moran, 
438 N.J. Super. at
 350.    The Moran court found

            a combination of unusual circumstances that
            led to Moran's injury: the failure of the
            truck unit to arrive, and the discovery of
            victims trapped inside a fully engulfed
            burning building, at a point when Moran did
            not have available to him the tools that would
            ordinarily be used to break down the door.

            [Id. at 354.]




1
    Moran was assigned to the engine company within the fire
department, and it was the job of firefighters assigned to the
engine company to use hoses to put out fires. Moran, 
438 N.J.
Super. at 349. It was the job of the firefighters assigned to the
truck company to gain entry into a burning building and rescue
occupants. Ibid.

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It was undisputed that had Moran not kicked down the door, the

victims would have died.        Ibid.

     Here, Mason was at the firing range to obtain her required

firearms certification, a situation that she had experienced at

least eighteen times previously.              This was not an unusual or

extraordinary circumstance, because Mason was required to qualify

with a shotgun each year to maintain her position as a corrections

officer.

     Having reviewed the record, we conclude there is sufficient

credible    evidence    to    support   the   Board's     determination       that

Mason's    disability   was    not   the    result   of   an   event   that    was

"undersigned" and "unexpected."

     Affirmed.




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