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Gerba v. Board of Trustees of Public Employees'' Retirement System

Decided: June 12, 1980.

JOSEPH GERBA, RESPONDENT,
v.
BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal -- Chief Justice Wilentz and Justices Sullivan, Clifford, Schreiber, Handler and Pollock. For affirmance -- Justice Pashman. The opinion of the Court was delivered by Handler, J. Pashman, J., dissenting.

Handler

The issue presented by this appeal is whether an accidental disability retirement pension may be granted to a public employee under the Public Employees' Retirement System (PERS), N.J.S.A. 43:15A-1 et seq., where it appears that the particular employee's disability was caused by traumatic physical injury combined with a preexisting arthritic condition. In the specific terms of the statutory provision governing PERS accidental disability retirements, N.J.S.A. 43:15A-43, the question is whether such a disability can be considered "accidental" as a "direct result of a traumatic event" or whether it must be regarded as "ordinary" because it "result[ed] from a . . . musculo-skeletal condition which was not a direct result of a traumatic event." Resolution of this question calls for a more extended analysis of a similar issue addressed by this Court in Cattani v. Board of Trustees, Police & Firemen's Retirement System, 69 N.J. 578, 586 (1976), wherein it was broadly recognized that under some circumstances an accidental disability could involve a combination of both a traumatic physical injury and an underlying disease or condition.

I

The facts reveal that Joseph Gerba ("respondent" or "Gerba") became a member of PERS in connection with his employment by the City of Bayonne. Prior to his going to work for Bayonne in April 1960, respondent had experienced at least three rather serious work-related injuries or medical conditions: in 1948, a crushed right hand; sometime in the 1950's, a shoulder and back condition necessitating a sympathectomy (the excision of a segment of a sympathetic nerve or sympathetic ganglia); and in 1956, a broken bone in his right foot. He also reportedly had

suffered from other ailments as well, e.g., bleeding ulcers in 1962 or 1963.

In September 1964 Gerba, in his capacity as a municipal landfill attendant, sustained another on-the-job injury. He was struck and knocked down by a truck and a "load of pallets" fell upon him. Bleeding from the neck and somewhat dazed, he was taken immediately to a hospital for treatment where he was admitted and remained for two weeks. Since his injuries were related to his spine and neck, part of the treatment consisted of traction. For four and one-half years after his discharge from the hospital Gerba wore a cervical collar or neck brace on physician's advice and used prescribed medication for pain relief.

Ten days after his release from the hospital in 1964, somewhat less than a month after the date of the accident, Gerba returned to his job at the city landfill performing the same duties that he had performed prior to the accident. He remained at this job until sometime in 1969, although he admits to having missed some work time in that period because of effects of the 1964 injury. He continued to take the prescribed pain medication while on this job, and, as a result, he repeatedly fell asleep on duty, which resulted in certain disciplinary actions being taken against him. It appears that respondent ceased wearing the cervical collar in 1969 and stopped his medication before 1973.

In 1969 Gerba became a security guard for Bayonne. In May 1973, while on an hourly inspection of vehicles at the municipal garage, Gerba slipped on an oil spot or spill and fell against a parked truck, striking his lower back. He apparently worked the remainder of his shift and then went to see Dr. Sidney Chayes, the doctor for the City of Bayonne. Dr. Chayes taped up respondent's back, provided a prescription for pain-relieving medication, and advised him to self-administer heat treatments; he did not send Gerba to an emergency room or hospital nor did he recommend the taking of X-rays. Although respondent continued to take pain medication, he missed no time from work as a result of this 1973 incident and remained employed by the city as a security guard through September 1975.

Through January 1974 Gerba saw no other doctor. However, still experiencing back pain, he consulted Dr. S. J. LaPilusa, his personal physician who had treated him after his 1964 accident. Dr. LaPilusa ordered X-rays and suggested a hospital stay in traction for respondent. Gerba opted, however, for daily home traction. He continued periodic consultations with Dr. LaPilusa who diagnosed Gerba's condition as arthritis of the neck and spine for which he prescribed various pain-killing drugs.

Effective September 18, 1975, Gerba resigned his security guard position with the City of Bayonne and became a security guard with a private employer. He subsequently was employed as a security guard with another private employer and remained at this last position until April 1978 after which time he apparently ceased active employment.

On September 12, 1975, six days before going off the city payroll, Gerba filed to withdraw his contributions from PERS. When he subsequently received a check in excess of two thousand dollars, the Division of Pensions notified him that all his rights, claims and privileges had been terminated. In the summer of 1976, while employed as a private security guard, Gerba, pursuant to N.J.A.C. 17:2-6.1, filed an application (or applications) for a service retirement allowance under N.J.S.A. 43:15A-47. By letter of September 27, 1976, PERS awarded Gerba a service retirement pension of $57.44 monthly retroactive to September 1, 1976, the low amount due in part to respondent's failure to repay the previously withdrawn contributions.

Gerba started receiving service retirement allowance checks, but, realizing that he was not receiving the higher benefits attributable to an accidental disability, he returned "all of that [service retirement] money" and in November 1976 (and on March 11, 1977, as well) applied to PERS for an accidental disability retirement pension under N.J.S.A. 43:15A-43. The Board denied this application and reaffirmed its approval of Gerba's application for service retirement benefits. Gerba appealed the denial of his application for accidental retirement benefits pursuant to N.J.A.C. 17:2-1.7.

A hearing was held before a Division of Pensions hearing officer. The sole witnesses at that hearing were Gerba himself, appearing pro se, and Dr. William Kruger, an expert in orthopedics, who had examined respondent in January 1977 on behalf of the Division of Pensions. The record contained the Disability Evaluation of Dr. Kruger prepared on behalf of the State's Division of Pensions in which the doctor concluded that the two work-related episodes "while not actually causing his disability, contributed to the underlying condition or contributed to the symptoms produced by the underlying condition and leading to his present state of being totally and permanently disabled." At the hearing Dr. Kruger characterized Gerba as "permanently disabled for a lot of different jobs because of the arthritis in his neck and back . . .." Nevertheless, Gerba was not, in Dr. Kruger's opinion, unable to work as a security guard so long as cold and damp conditions were avoided. Dr. Kruger's diagnosis was that Gerba's "continuing difficulty [was] due to arthritis in his neck and lower back" and that the "basic direct cause of [his relative] permanent and total disability" was "[h]is arthritis in his neck and back." Dr. Kruger further opined that neither the 1964 nor the 1973 injury contributed to the progression of respondent's arthritis since "trauma does not cause or stimulate arthritic changes."

The report of Dr. LaPilusa, which was also admitted into evidence, contained a diagnosis of cervical and lumbar arthritis and expressed the view that the 1964 trauma could have been an aggravating factor with respect to Gerba's permanent and total disability. In addition, the record contained the report of Dr. Jack Sall, who had examined Gerba on July 18, 1977 in connection with his claim for workers' compensation. Dr. Sall found that the sum total of his disabilities, including residuals of a crush injury to the right hand with a resultant right shoulder capsulitis and synovitis, a crush injury to the right foot and ankle, a right inguinal hernia, and a residual of a lumbodorsal strain, resulted in 100% disability under appropriate workers' compensation standards.

The Division of Pensions hearing officer's report recommended affirmation of the denial of Gerba's application for accidental disability retirement. The Board of Trustees, in ruling on the appeal, adopted the hearing officer's recommendation and affirmed its initial denial of claimant's application. Respondent appealed pro se to the Appellate Division which, in an unreported per curiam opinion, reversed the Board's determination and remanded with direction that Gerba be awarded the requested accidental disability pension. The court found that both accidents suffered by Gerba, i.e., the 1964 landfill accident and the 1973 municipal garage accident, were "traumatic event[s]" within the meaning of N.J.S.A. 43:15A-43 as interpreted by Cattani v. Board of Trustees, PFRS, supra, and that Gerba's disability, found to be full and permanent, was a direct result "from the combined effect of [these] traumatic event[s] and a preexisting [osteoarthritic] disease." PERS filed a petition for certification which was granted on May 30, 1979. 81 N.J. 276 (1979).

II

The statutory provision which enables a public employee who is a member of PERS to retire upon an accidental disability is N.J.S.A. 43:15A-43. Such disability must be total and permanent and must be a "direct result" of a work-related traumatic event in order to justify the increased retirement benefits awarded with an accidental disability.*fn1 The precise language articulating this standard is as follows:

A member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application or the application of one acting in his behalf, be retired by the board of trustees, if said employee is 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, on an accidental disability allowance. [ N.J.S.A. 43:15A-43 (emphasis added).]

N.J.S.A. 43:15A-43 also contains this additional language:

Permanent and total disability resulting from a cardiovascular, pulmonary or 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.

The significance of this rather painstaking dual definition of an "accidental disability" for PERS pension retirement purposes emerges from a review of its history. The Public Employees' Retirement System (PERS) was created by statute in 1954. L. 1954, c. 84. That legislative act, then entitled the Public Employees' Retirement-Social Security Integration Act (L. 1954, c. 84, § 84), read with respect to accidental disabilities as follows:

A [PERS] member who has not attained age 70 shall . . . be retired by the [PERS] board of trustees, if said employee is disabled as a result of personal injuries sustained in or from an accident arising out of and in the course of his employment, on an accidental disability allowance. [ L. 1954, c. 84, § 43 (emphasis added).]

The key consideration in evaluating accidental disability retirement claims under the original statute was thus whether the alleged disability was the result of an "accident arising out of and in the course of [the employee's] employment."

This language virtually duplicated that found in the statute governing workers' compensation. N.J.S.A. 34:15-1. It is not surprising, therefore, that in the early applications of the accidental disability provisions of PERS, the courts were influenced strongly by developments in the workers' compensation field. In Roth v. Board of Trustees, PERS, 49 N.J. Super. 309, 317 (App.Div.1958), for example, an action to recover PERS accidental death benefits, the court followed the broad standards for employment-relation in the workers' compensation field. It held

that accidental benefits, as opposed to "ordinary" benefits, were allowable because an underlying fatal disease was "activated" by an employment injury. This approach, paralleling workers' compensation law, was followed by courts dealing with like provisions for accidental disability retirement benefits in other state pension systems. E.g., Getty v. Prison Officers' Pension Fund, 85 N.J. Super. 383, 390 (App.Div.1964); Fattore v. PFRS, 80 N.J. Super. 541, 549 (App.Div.1963), certif. den. 41 N.J. 245 (1963); Kochen v. Consolidated Police & Firemen's Pension Fund Comm'n, 71 N.J. Super. 463, 477 (App.Div.1962); see also Ackerman, "Justice Francis and Workmen's Compensation," 24 Rutgers L.Rev. 458, 473 n. 91 (1970).

The uncritical application of workers' compensation standards to the public pension field was questioned in some cases. In Wagner v. Board of Trustees, PERS, 87 N.J. Super. 498, 505 (App.Div.1965), certif. den. 45 N.J. 300 (1965), the court, stressing that the distinction between the systems had been obfuscated by the Roth court and others, found "it clear that the Legislature . . . [had] intended the word 'accident,' in N.J.S.A. 43:15A-43, to comprehend an identifiable accidental incident, or a mishap, or a series of such untoward events, as contrasted with a gradual deterioration. . . ." In McGee v. Board of Trustees, PERS, 45 N.J. 576, 578-579 (1965), this Court, in applying the accidental disability provision of the PERS act, held that no accidental disability pension could be granted with respect to a heart attack superimposed upon an arteriosclerotic heart condition or disease because such an occurrence was not an "accident arising out of and in the course of [claimant's] employment."

In 1966 the accidental disability provisions of the PERS statute were amended and changed fundamentally. The amendment deleted the terminology that the disability simply be a "result" of injuries from an employment "accident," substituting instead the current requirements that the disability, total and permanent in nature, constitute the "direct result," not of an accident, but rather of a "traumatic event" which itself must "occur[ ] during and as a result of the performance of [the

employee's] regular or assigned duties . . .." L. 1966, c. 67, § 4. Additionally, the 1966 amendment provided for the further exclusionary or limiting qualification that a disability "resulting" from a certain "condition," viz., "cardiovascular, pulmonary or musculo-skeletal," that is not itself a "direct result" of such a "traumatic event," does not constitute an "accidental" disability. Ibid. This concerted legislative effort to effect a basic change in the standards for awarding accidental disability retirement pensions is underscored by the identical amendments enacted with respect to the accidental disability pensions provided in other major state pension systems, e.g., L. 1964, c. 241, § 4 and L. 1967, c. 250, § 7 (revising N.J.S.A. 43:16A-7) (Police & Firemen's Retirement System (PFRS)); L. ...


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