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Nissel v. Board of Trustees of the Public Employees Retirement System

October 30, 2006

KENNETH NISSEL, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from a final decision of the Board of Trustees of the Public Employees Retirement System, TYP-129-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2006

Before Judges Winkelstein and Fuentes.

Petitioner, formerly employed as a custodian by the Voorhees Township Board of Education, was injured on the job on June 16, 2000, when a floor buffing machine he was operating partially lifted into the air and landed on his foot. In an October 30, 2003 opinion, an Administrative Law Judge (ALJ) found that petitioner was entitled to accidental disability benefits. The Board of Trustees, Public Employees Retirement System (the Board), rejected that decision, determining that petitioner had not suffered a traumatic injury, and denied petitioner's claim.

On appeal, we remanded to the Board for reconsideration of its decision in light of the factual findings made by the ALJ. Nissel v. Bd. of Trs. of the Pub. Employees Ret. Sys., No. A-3044-03 (App. Div. Mar. 18, 2005). On remand, the Board accepted the facts as found by the ALJ, but again denied petitioner's claim for accidental disability benefits. We reverse.

At 10:20 p.m. on June 16, 2000, while petitioner was performing his duties as a custodian at the Hamilton Elementary School, he was injured while using an electric floor buffing machine to clean a carpeted area at the main entrance of the school. The buffer weighed between 75 and 100 pounds. It had an adjustable handle that could be raised to a vertical position perpendicular to the floor or lowered to a horizontal position parallel to the floor. Prior to operation, the operator of the buffer would adjust the handle to the desired angle and engage a handle locking device to secure the handle. Before using the machine, the operator would spray a cleaning solution on a small area of the carpet. By pressing a trigger on the handle, the operator would activate a buffing pad on the bottom of the machine. As the machine was used, the pad would spin and absorb cleaning solution, making the machine heavier. Once the operator released the trigger, it would take a second or two for the pad to stop spinning. The machine used by petitioner had malfunctioned on prior occasions, snapping the leg of a desk petitioner estimated to be 500 pounds, and cracking the tile and cinderblock of a wall.

On this occasion, petitioner had been using the machine for approximately eighteen to twenty-five minutes on a thirty to forty-foot section of carpet, when the handle slipped from its locked position and petitioner lost control of the machine. According to petitioner, the machine began moving like a "bucking bronco." He felt "tossed around like a rag doll" as he attempted to hold onto it. As petitioner held the handles of the machine in an attempt to regain control, the rear of the machine raised off of the ground by approximately a foot and landed on petitioner's left foot. The force of the machine's impact knocked him to the ground. He felt immediate pain in his left ankle. He has since undergone three surgeries on his foot and is unable to walk, stand or maneuver without severe pain, swelling, and stiffness. The degree of his disability is not in dispute.

An agency's determination of the facts is entitled to great deference. See S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 483-85 (App. Div. 2002). Courts generally have a limited role to play in reviewing the actions of other branches of government, but can intervene when "'in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.'" Esposito v. Police & Fireman's Ret. Sys., 358 N.J. Super. 112, 122-23 (App. Div. 2003) (quoting In re Musick, 143 N.J. 206, 216 (1996)). The courts will intercede if an agency's bounds exceed its discretion. In re Distribution of Liquid Assets, 168 N.J. 1, 11 (2001).

A member of the Public Employees Retirement System shall be retired on an accidental disability allowance "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." N.J.S.A. 43:15A-43. Benefits for accidental disability are substantially higher than those for ordinary disability, and thus, the eligibility requirements for an accidental disability allowance are more restrictive. Kane v. Bd. of Trs., Police & Firemen's Ret. Sys., 100 N.J. 651, 660 (1985) (discussing N.J.S.A. 43:16A-7, the language of which parallels that of N.J.S.A. 43:15A-43); see also Angiola v. Bd. of Trs., Pub. Employees' Ret. Sys., 359 N.J. Super. 552, 556 (App. Div. 2003) (noting the differences between ordinary and accidental retirement benefits). The Kane Court endeavored to "bring clarification" to the definition of the statutory term "traumatic event." 100 N.J. at 663. The standards set forth in Kane are applicable when interpreting N.J.S.A. 43:15A-43. See Angiola, supra, 359 N.J. Super. 552.

A traumatic event is one that "arises in cases in which a worker involuntarily meets with a physical object or some other external matter and is victim of a great rush of force or power that he himself did not bring into motion." Kane, supra, 100 N.J. at 663. To determine whether a traumatic event has occurred, a worker must demonstrate: (1) that his injuries were not induced by the stress or strain of the normal work effort;

(2) that he met involuntarily with the object or matter that was the source of the harm; and that (3) the source of the injury itself was a great rush of force or uncontrollable power. Ibid.

For example, a firefighter who is gradually worn down over an extended period of time by the heat and flames of a fire suffers an injury that is part of the stress and strain of his duty; he is not entitled to accidental disability benefits. Ibid. The same is true of a firefighter who strains her back carrying a ladder or injures herself retrieving a hose from the fire truck. Ibid. Conversely, a firefighter struck by a falling beam or thrown off of a roof by a sudden explosion or blast of flame suffers an injury from a traumatic event and does qualify for accidental disability benefits. Ibid. The "focus of inquiry is on the event itself rather than the injury"; a showing of a permanent injury alone is not enough to trigger accidental disability benefits. See id. at 663, 664.

The Kane Court differentiated between injuries caused by an external force and injuries caused by the motion of the injured party's own body. Where an officer stepped on an uneven piece of concrete during a routine patrol, shifted his body weight to save himself from falling, and twisted his knee and ankle, the Court found that he had not been injured as a result of a "traumatic ...


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