On appeal from a Final Administrative Determination of the Board of Trustees, Public Employees' Retirement System.
Petrella, Dreier and Ashbey. The opinion of the court was delivered by Dreier, J.A.D.
Petitioner appeals from the denial of his accidental retirement benefits claim by respondent, Board of Trustees of the New Jersey Public Employees' Retirement System (Board). This is the second time this case is before us. As we noted in our earlier unpublished opinion, petitioner suffered an on-the-job injury five months and five days short of his 65th birthday, but did not file an application for accidental disability retirement benefits until December 7, 1982 when he was four months and 14 days beyond his 65th birthday. The Board refused even to issue him the requisite forms to file his claim. We reversed and directed that the Board accept the application nunc pro tunc as of the day the original request had been made. On remand, the Board was to determine whether the statute
was intended to apply to the kind of case where an employee is traumatically injured a short time before age 65, undergoes 'a number of surgical procedures' and, when they are ineffectual to correct the injury, is diagnosed as permanently and totally disabled at a time after he attained age 65.
We remanded the matter for a hearing before an administrative law judge and instructed the Board
to determine the legislative intent and to give a fair and practical interpretation with reference to the purposes of the retirement act. . . .
In April 1986 the Board denied the application commenting that although the application had been filed "out of time," it would comply with the direction of the Appellate Division and entertain the merits. It then determined that the accident was not a traumatic event within the meaning of N.J.S.A. 43:15A-43, and that petitioner was not totally and permanently disabled as a result of the incident. The matter was then heard by an administrative law judge as a contested case. After evidentiary hearings in January 1987, the administrative law judge issued his recommended decision on issues other than the age qualification.
The judge found in favor of petitioner on both the question of traumatic event and total and permanent disability as a result of the trauma. The Board, however, on review of the recommended decision rejected the administrative law judge's recommendations regarding both the disability and the character of the event; it further ruled that petitioner's application was barred by the age restriction of N.J.S.A. 43:15A-43. While we recognize the Board's expertise in matters submitted to its jurisdiction, we are constrained to disagree both with the Board's interpretation of the governing statute and with its factual determinations based upon our view of the applicable legal standards defining a traumatic event and total disability. See Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 93 (1973), and Campbell v. Dept. of Civil Service, 39 N.J. 556, 562 (1963).
Petitioner was employed as a custodian for the Bergenfield Board of Education since December 1976 and was enrolled in the Public Employees' Retirement System (PERS) in June 1977. One of the usual school-custodian duties performed by petitioner was sweeping floors with a push broom, the base of which was approximately three feet long with attached hair bristles. The accident occurred as petitioner was hanging the broom on a bracket near a shelf. In his words:
The broom turned in my hand and it came back. It bounced off the shelf. I turned my head and the edge of the broom caught my eye across my eye.
THE COURT: Which part of the broom caught you across the eye?
THE WITNESS: The bristles on the broom.
Elsewhere in the transcript petitioner stated:
Q. Did you have time or did you try to do anything to avoid the brush bouncing back and having the bristles hit you in the eye?
A. Well, I bucked. I moved my head back, I moved my head, but I turned it in my hand and it just caught the edge of my eye. I tried to move away from it, but I guess I didn't move fast enough.
Q. Did you move backwards before or after the bristles got you in the eye?
A. When the broom hit the shelf and it came back, I moved my head as I seen it coming because I couldn't get out of the way. In fact, the broom, as it came back, I moved my head and it just caught my eye.
After the accident, petitioner was sent home for the day. Although he tried to work the next day, he had to stop work because his eye had completely closed. He was unsuccessfully operated on three times, and he never returned to work after the third operation. At the hearing in November 1986 petitioner stated that he had lost the sight in his right eye and was unable to drive a car. He had to wear sunglasses at all times, even indoors, due to light sensitivity. The eye continually burned and watered, causing headaches. He lacked peripheral vision and could not see a child or anyone who came up to him on his right side to cross in front of him. He was unable to climb ladders or use tools, and lifting placed a strain on the right side of his face further aggravating the condition to his eye. He lacked the ability to judge distance properly and felt helpless. He could not do what he was supposed to do and could not go to work.
Petitioner's expert testified that there was a total loss of vision in petitioner's right eye allowing him to see shadows only. He stated that the eye impairment was caused by the broom episode, noting that as a result of earlier cataract operations his eyes were more susceptible to trauma than normal eyes would have been. The doctor further testified that although petitioner may be physically capable of performing some of the duties of a custodian, his age and emotional response to his condition, combined with the chronic inflammation of the eye and lack of vision, caused petitioner to be unable to perform the duties of a custodian. As to the physical mechanics of the injury the doctor ...