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Fairweather v. Public Employees' Retirement System

November 29, 2004


On appeal from a Final Decision of the Board of Trustees, Public Employees' Retirement System.

Before Judges Axelrad, R.B. Coleman and Holston, Jr.*fn1

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).


Argued: November 4, 2004

Petitioner, Delores Fairweather, appeals from the final administrative action of the Board of Trustees of the Public Employees' Retirement System (Board) that denied her application for accidental disability retirement benefits. She sustained the injuries that served as the basis for her claim when a frightened mental patient, who she was trying to evacuate from a burning cottage, jerked his hand away from hers and they slid down the icy steps to the ground. As a result of the fall, petitioner sustained serious and permanent injuries. The Board found petitioner to be permanently disabled and awarded her ordinary disability retirement benefits under N.J.S.A. 43:16A-6.

It held, however, that the injuries did not result from a"traumatic event" as required by N.J.S.A. 43:15A-43, and denied petitioner accidental disability retirement benefits. We reverse.

Following the initial denial of her application by the Board, petitioner requested a hearing and the matter was transmitted to the Office of Administrative Law (OAL) as a contested case. The parties stipulated that petitioner was permanently and totally disabled as a direct result of the incident which occurred during the performance of her assigned duties. See N.J.S.A. 43:15A-43. Disposition of the case therefore turned on whether the incident met the traumatic event prong of N.J.S.A. 43:15A-43.*fn2 Administrative Law Judge (ALJ) Metzger conducted a hearing on June 10, 2003, at which petitioner and her supervisor, Joyce Miles, testified.

The facts adduced at the hearing were either stipulated or undisputed. On January 30, 2000, petitioner was a Residential Living Specialist at the Trenton Psychiatric Hospital, where she had been employed for three years. She had direct care responsibilities for seven low-functioning mentally ill residents of cottage #9. That evening a fire alarm sounded in cottage #9. Petitioner observed fire and smoke coming from a window. After evacuating and taking a headcount of the patients, petitioner was unable to account for"Patient G." Another patient reported that he was at the back of the building.

Petitioner went to the back of the cottage and observed the patient standing at the back door, trying to open it. Three steps and a landing led to this door and the area was covered with snow and ice. According to petitioner, the patient was delirious and began telling her that the voices in his head were talking to him, that the voices had told him to set the fire, and that he did not set the fire. Petitioner attempted to calm the patient and encourage him to leave the area with her because the building was on fire. However, the patient did not move. Petitioner then went up the three steps to the landing. She put her hand out to the patient and told him to come with her. The patient then took her hand and they both started down the stairs.

As petitioner was about to take her first step from the top of the landing, the patient suddenly hesitated, turned away from her and jerked his hand from her hand, causing her to lose her balance. They both slid down the three steps to the ground. The patient fell next to her. The patient was about 5'5" tall and weighed 200 pounds. Petitioner helped the patient up and walked him to the front of the building. Shortly thereafter, petitioner began to feel pain in her lower back and right knee. She saw the doctor on duty at the facility and then went to the hospital. She never returned to work.

In his June 24, 2003 decision, the ALJ concluded that the incident was a traumatic event and recommended that petitioner be awarded accidental disability retirement benefits. More specifically, the ALJ found that petitioner met the three-prong test of Kane v. Board of Trustees, Police and Fireman's Retirement System, 100 N.J. 651, 663 (1985), to constitute a requisite traumatic event: that the injury (1) was not induced by normal work strain, (2) was involuntary, and (3) originated from"a great rush of force or uncontrollable power." As to the first two prongs, the ALJ found"[t]hough attending to patients was a normal part of [petitioner's] day, this did not include sliding down icy steps. Neither did petitioner come voluntarily to the source of her injury within the meaning of the cases, as her actions were necessary to escort the patient to safety." (citation omitted).

The ALJ also found the third Kane prong to be satisfied"when the patient jerked his hand away from petitioner, causing her to lose balance and slide uncontrollably on ice down three steps to an injury that permanently disabled her." The ALJ systematically distinguished the present case from the slip and fall cases which have been held insufficient to meet the"great rush of force" test, stating:

Although this situation has elements in common with the slip and fall cases that have been held not to meet the"great rush of force" test, Maynard v. Board of Trustees of Teachers Pension and Annuity Fund, 113 N.J. 169 (1988) and Ciecwisz v. Board of Trustees of Police and Firemen's Retirement System, 113 N.J. 180 (1988), there are distinguishing characteristics here.

Petitioner found herself in the midst of an emergency with a delirious patient. As the patient jerked away from her, he threw them both off balance and they both slid down the icy steps to the ground. The typical ...

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