On appeal from the Board of Trustees of the Public Employees' Retirement System.
King, Simpson and Scalera. The opinion of the court was delivered by King, P.J.A.D.
This appeal is taken from the denial of accidental disability retirement benefits under N.J.S.A. 43:15A-43.*fn1 The Board of Trustees of PERS denied the application, finding appellant permanently and totally disabled as a result of "pre-existing long-standing arthritis" and thus confirming the conclusions of the administrative law judge who had recommended denial of benefits. We disagree as a matter of law and reverse.
Martin Petrucelli, age 51, worked for the State's Department of Environmental Protection (DEP) as an Environmental Compliance Investigator I when he was injured in the fall which is the basis of this accidental disability claim. His job was to investigate sewage treatment plants, pumping stations, industrial waste treatment plants and other sanitary facilities being constructed throughout New Jersey. The work was physically very taxing. Petrucelli conducted manhole inspections in which he would walk anywhere from two to three miles, lifting 25 to
30 manhole covers each weighing between 100 and 200 pounds, and crawl ten to 35 feet underground, often dragging heavy equipment, in order to conduct various tests on the interceptor lines. His duties also included the testing of potable water which required going into the water treatment plants and descending many series of stairs to reach the source of the water where he took samples and ran field analyses of its quality.
Petrucelli had worked for the State since 1963, first for the Department of Transportation and then, since 1971, for DEP. Prior to working for the State, Petrucelli had owned a tavern for six years, worked as a brick layer and a stone mason, and served in the Army for three years. He had never suffered any injury to or problem with his back nor experienced any type of anxiety or depression prior to his accident. Petrucelli is married with two children, an avid fisherman and hunter before the accident who enjoyed bowling, skiing and snowmobiling with his family. In sum, his work was strenuous and his life was physical.
On October 28, 1981 Petrucelli was instructed to conduct an on-site inspection of a new treatment facility under construction in Berkeley Heights. He arrived at the facility at about 8 a.m. and checked in at the engineer's office. His co-worker did not arrive and Petrucelli conducted the inspection alone. At about 3 p.m. that afternoon, Petrucelli entered the main operations building to inspect recently completed work in that area. He entered a stairwell which descended into the facility's partial flume pit area, an artificial channel used for conducting water. The stairwell had been substantially completed but lacked permanent railings and protective shields as well as non-skid strips on the steps themselves. A temporary railing consisting of a 2 by 4 supported by two 4 by 4 posts was in place on either side of the steps.
As Petrucelli began to descend the nine steps leading to an open landing approximately 20 feet above the partial flume pit,
he slipped on some loose granular material on the second step. Attempting to regain his balance, his foot sought the third step but he landed on a loose 4 by 4 piece of timber laying across the step which resulted in a skate-board like skid of his right foot. Petrucelli fell face-first down the nine-step stairwell in spread-eagle fashion. He said that hitting the landing wall "felt like a cannon had exploded" in his head, rendering him semi-conscious. He was unable to catch his breath and was bleeding from the mouth. Lying on the open landing he began to fear that he would pass out and fall into the water below. His legs were very stiff, but he managed to crawl back up the stairs. Reaching the top, he found his legs completely paralyzed and he simply lay there gasping until he was discovered some 15 minutes later.
Petrucelli was taken by ambulance to the Trauma Center of Overlook Hospital in Union. He received emergency treatment, was x-rayed and released after six hours with instructions to obtain a follow-up exam with his family doctor. The x-ray report issued by Overlook Hospital at the time of Petrucelli's emergency admission revealed narrowing of disc space at C-5/C-6, hypertrophic changes seen anteriorly at C-5/C-6, degenerative changes of the thoracic spine, grade I spondylolisthesis at the L-5/S-1 level, a narrow disc space at that level also and hypertrophic changes anteriorly at L-4/L-5. The report further noted that no fractures were found in Petrucelli's cervical or thoracic spine and that his chest, right hip, left ribs and left clavicle appeared normal.
After conferring with his family doctor the following day, Petrucelli was referred to John Patrick Mullen, M.D., a board certified orthopedic surgeon. Petrucelli was treated by Dr. Mullen and his associate, Dr. John J. Ialeggio for severe spasm on the right side with bilateral sciatic notch on the right with a positive sciatic notch on the right. Petrucelli spent two weeks in traction at Easton Hospital in November and was still under his doctor's ...