On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Justices Sullivan, Clifford, Schreiber, Handler and Pollock. For affirmance -- Justice Pashman. The opinion of the Court was delivered by Handler, J. Pashman, J., dissenting.
[83 NJ Page 164] This appeal presents the same question which was determined this day in the case of Gerba v. Board of Trustees of the Public Employees' Retirement System, 83 N.J. 174 (1980). At issue is the entitlement of a public employee to an accidental disability retirement pension pursuant to N.J.S.A. 43:15A-43 under the Public Employees' Retirement System (PERS), N.J.S.A.
43:15A-1 et seq. In the Gerba decision we resolved such a question in the context of a claim that a physical disability was attributable to both an employment-related traumatic event and an underlying physical disease. The same circumstances are present in this case. Consequently, resolution of this appeal is governed by our decision in Gerba v. Board of Trustees, PERS, supra.
Appellant-respondent William Korelnia ("respondent" or "Korelnia") was enrolled in the Public Employees' Retirement System (PERS), effective May 1, 1959, while employed as a toll collector for the New Brunswick Parking Authority. He later became a safety inspector for the New Jersey Highway Authority, inspecting and replacing as necessary fire extinguishers and oxygen tanks at the various plazas and restaurants along the Garden State Parkway. Replacing empty or nearly empty fire extinguishers and oxygen tanks entailed lifting and carrying them manually to his station wagon, transporting them to the vendor, lifting and removing them from the station wagon upon arrival at the vendor, lifting them back into the station wagon after being refilled or recharged, transporting them back to the plazas or restaurants from which they had been removed, and then lifting them again from the station wagon and replacing them in their proper locations. The fire extinguishers (and presumably the oxygen tanks as well) weighed approximately between 17.5 and 75 pounds each and were of various dimensions. Thus, considerable lifting and bending were involved in Korelnia's job as safety inspector. Another function of respondent's job as safety inspector was to oversee the work performance of other employees in each of the five "districts" along the parkway where maintenance machinery was located.
While performing his duties as safety inspector on August 18, 1976, respondent suffered a back injury which is the subject of the claim herein. But prior thereto, on June 1, 1972, he had also suffered an injury to "[t]he same section of [his] spine." For this earlier back condition respondent in 1972 had received
periodic injections of muscle relaxant for approximately two months; he received no further back treatment after the discontinuation of these injections up until the August 18, 1976 injury. Respondent described the condition of his lower back during this four-year interim (1972-1976) as "stay[ing] the same," and as not hampering his work performance (including the lifting of the fire extinguishers and oxygen tanks). As for other unrelated maladies, respondent had suffered a heart attack in 1960 and had had a gall bladder operation in 1974. He had also missed a good deal of work time in 1976 prior to the back injury because of influenza (three weeks) and viral pneumonia (six weeks).
As noted, the injury on which respondent's disability pension claim was based occurred on August 18, 1976. He had transported several carbon dioxide fire extinguishers to the vendor, Kemp Fire Extinguisher Company of Paterson, for recharging. In lifting the last of the recharged extinguishers back into the station wagon, respondent slipped and dropped the approximately forty-pound cylinder. In the words of Korelnia, "I was loading [the extinguisher] onto the station [wagon] and I slipped, I jumped back away from the extinguisher not to get hit and I smacked my spine [lumbosacral area] on the tailgate of the station wagon."
Respondent, in pain, remained stationary either seated in or on the car for "awhile" (estimated by respondent to be fifteen to twenty minutes) after which time he picked up the dropped extinguisher, placed it in the station wagon, and returned to his home office. The impact of respondent's back with the station wagon did not cause bleeding or a breaking of the skin and respondent did not seek immediate medical attention or treatment. Back at his home base Korelnia reported the incident to his supervisor who advised him to "wait and see" with respect to medical treatment. Respondent worked the next day, August 19, including a round-trip drive to Cape May in excess of 240 miles.
Korelnia, still in considerable pain by his own recounting, after reporting to work the next morning consulted (by appointment obtained for him by his ...