Decided: June 25, 1976.
IN THE MATTER OF FRED F. SIGAFOOS, PETITIONER-APPELLANT
Fritz, Seidman and Milmed.
[143 NJSuper Page 470]
In an unreported opinion we reversed a final determination of the Board of Trustees, Police and Firemen's Retirement System, denying petitioner's application for an accidental disability retirement pension under N.J.S.A. 43:16A-7, and granting, instead, a service and age retirement allowance (N.J.S.A. 43:16A-5). We held, contrary to the conclusions reached by the Board, that the incident which produced petitioner's alleged disability was a traumatic event as that term is used in the pertinent statute.*fn1
The record on the nature and extent of the disability established that petitioner had suffered over a period of years
[143 NJSuper Page 471]
from a back condition. However, neither the hearing officer nor the Board made any finding following the hearing relative to the nature and extent of the disability suffered by petitioner. Accordingly, without retaining jurisdiction, we remanded for findings on that issue with a direction that if the Board should find that petitioner was totally and permanently disabled, then there should be further findings on the additional statutory requirements:
(A) Was such disability the direct result of the traumatic event of February 5, 1971?
(B) Was petitioner "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 him?" N.J.S.A. 43:16A-7(1).
On the remand the Board found that petitioner was totally and permanently disabled; that he was physically incapacitated for the performance of his usual duty, and that there were no other available duties in the department. However, the Board found further that "Petitioner's permanent and total disability resulted from a musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty." Petitioner then filed a second notice of appeal.
For a member of the retirement system to be entitled to an accidental disability retirement allowance under N.J.S.A. 43:16A-7, it must appear
The statute further provides that
Permanent and total disability resulting from a * * * musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.
[143 NJSuper Page 472]
In the recent case of Cattani v. Bd. of Trustees, Police & Firemen's Retirem. Sys. , 69 N.J. 578 (1976), the court said:
Since we determined on the first appeal that the incident of February 1971 was a traumatic event, that issue is no longer before us. Our sole concern here is the correctness of the hearing officer's conclusion, adopted by the Board, that "Petitioner's permanent and total disability resulted from a musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty." (Emphasis supplied) The hearing officer's concept was that the medical proofs did not "establish that the Petitioner's condition was the result of the incident relied upon; rather, it established that a preexisting condition of the Petitioner caused his disability." "The totality of the evidence available on this issue," he said, "would seem to reflect that Petitioner was suffering from a significant pre-existing musculo-skeletal condition * * *. The incident of February 5, 1971 was no
[143 NJSuper Page 473]
more than one of a series of episodes producing permanent and total disability." We disagree with the Board's conclusions.
There is no doubt that petitioner has suffered over a period of years from a back condition. It is equally clear that the condition was aggravated by the traumatic event in February 1971, resulting in a lumbar hemilaminectomy of the L5 level a year later.
It is true that on the remand we asked the Board to determine simply whether petitioner's disability was the "direct result of the traumatic event," but what we had in mind was not whether the event wholly brought about the disability; rather, it was whether there was a causal relationship between the two, taking into account the preexisting back condition. In fairness to the Board, we did not then have the benefit of Cattani , so that we did not put to the Board the more precise question of whether the disability directly resulted from the combined effect of the traumatic event and the preexisting disease.
Cattani makes it clear that disability which is the end result of a prior musculo-skeletal condition may not be the basis of an accidental disability pension, even though the disability is aggravated or accelerated by work effort alone. That is not the case here. Nor is this case one where the end result, i.e. , the total and permanent disability, would have occurred when it did irrespective of the traumatic event.
The preponderant medical evidence here was that the incident aggravated petitioner's condition. Even the Medical Board of the Division of Pensions found that petitioner "injured his back when he was subjected to an unusual and unanticipated stress," and that he was permanently and totally disabled. We deem it of significance, notwithstanding the effort of the Board of Trustees to minimize its impact, that the Medical Board also listed as "Probable" the "cause and effect relationship of the described activity or incident to the present disability."
[143 NJSuper Page 474]
Dr. Mittnacht, who testified below in behalf of the Board of Trustees, said that
This man in all probability had an intermittently mildly protruding lumbar disc and there were a series of episodes from which he recovered spontaneously as can happen. And then on February 5th, 1971 there was a reoccurrence of this same condition but to a greater extent which was sufficient to produce disability at that time [Emphasis supplied]
The proofs here clearly show that petitioner's disability "directly resulted from the combined effect of a traumatic event and a preexisting disease." Cattani, supra. He is entitled to an accidental disability retirement allowance under N.J.S.A. 43:16A-7.
We reverse the determination of the Board of Trustees and remand with direction that petitioner be awarded an accidental disability retirement allowance. We do not retain jurisdiction.