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Dennis v. Board of Trustees

July 11, 2007

ARLENE DENNIS, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Final Administrative Decision of The Board of Trustees, Public Employees' Retirement System, PERS #646345, TYP-06793-2003S.

The opinion of the court was delivered by: Payne, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 17, 2007

Before Judges Kestin, Payne and Lihotz.

Petitioner, Arlene Dennis, appeals from a final decision by respondent, the Board of Trustees, Public Employees' Retirement System (PERS), affirming a grant to her of ordinary disability retirement benefits, pursuant to N.J.S.A. 43:15A-42, but denying accidental disability retirement benefits, pursuant to N.J.S.A. 43:15A-43, on the ground that petitioner's total and permanent injuries, sustained during the course of her work as a school bus driver, were not the result of a "traumatic event" as required by statute. The appeal thus raises the narrow issue of whether, as expressed by the Supreme Court in Kane v. Bd. of Trs., Police and Firemen's Ret. Sys., 100 N.J. 651, 663 (1985), the source of petitioner's injury itself "was a great rush of force or uncontrollable power."

Following an injury occurring on November 8, 2000, petitioner, a member of PERS, sought accidental disability retirement benefits from that system. The Board of Trustees of PERS denied petitioner's application, finding that the accident did not constitute a "traumatic event," but granted petitioner ordinary disability retirement benefits, effective November 1, 2002, finding that petitioner was totally and permanently disabled from the performance of her regular and assigned duties, and that her disability was a direct result of the November 8 incident.

Petitioner appealed, and the matter was referred to the Office of Administrative Law for an evidentiary hearing. Prior to the hearing, PERS stipulated that petitioner had met the first two of Kane's requirements -- that her injuries were not induced by the stress or strain of normal work effort, and that she met involuntarily with the object or matter that was the source of the harm. Ibid. However, following the hearing, the Administrative Law Judge (ALJ) determined in a comprehensive initial decision, as had the PERS Board, that petitioner had failed to meet Kane's third requirement, finding that "the incident of November 8, 2000 does not constitute a traumatic event within the meaning of N.J.S.A. 43:15A-43." Upon further appeal, the Board accepted the finding of the ALJ that the incident of November 8 was not a traumatic event, and it accepted the ALJ's recommendation that accidental disability retirement benefits be denied. This appeal followed, and we reverse. We confine our analysis to the one issue raised in the administrative proceeding: whether a "traumatic event" occurred.

The record of the hearing before the ALJ discloses that, at the time of the event at issue, petitioner was a school bus driver, employed by the Pennsauken Board of Education to transport special needs students, most of whom were autistic, to the private schools to which they had been assigned. On the morning of November 8, petitioner had stopped at the school that "M.," a third-grade student of eight or nine years of age, attended. As was her custom, petitioner was sitting in the driver's seat, handing school bags with her right hand to each student as the student exited the bus. As M. approached the front of the bus, petitioner noticed that he was gaining momentum, while twisting from side to side in a manner that petitioner found to be "peculiar." Petitioner testified that she "wasn't sure exactly what he was doing." As he reached petitioner, according to her testimony, M. "basically turned his back to me and threw himself at me . . . with his shoulder and his back." Petitioner, concerned that M. would injure himself on the dashboard, steering wheel or gear shift, and concerned for her own safety, put up her hands to break M.'s fall. In doing so, petitioner bent back both wrists and suffered an injury to her brachial plexus. M. fell onto petitioner's lap, but then slid to the floor.

In his initial opinion denying accidental disability retirement benefits, the ALJ stated:

The purported "great rush of force" in this case consists of a third grade student who flung himself backward onto petitioner's lap. Petitioner's physical description of M. in no way indicates that he was in any way oversized in comparison to other third graders. Nor is there anything in the record to indicate M. was significantly older, and therefore bigger, than the other third graders.

I FIND that the force generated by the third grader's conduct does not meet the definition of a "great rush of force" or "uncontrollable power," as defined in the case law. Therefore, petitioner has failed to satisfy the third prong of the Kane test.

Receipt of the benefits sought by petitioner requires a showing of permanent and total disability, uncontested here, taking place "as a direct result of a traumatic event occurring during and as a result of the performance of [her] regular or assigned duties. . . ." N.J.S.A. 43:15A-43. The requirement of evidence of a "traumatic event" appears, as well, in connection with statutes providing for accidental disability pension benefits under the State's other two public pension systems: the Police and Firemen's Retirement System, see N.J.S.A. 43:16A-7, and the Teacher's Pension and Annuity Fund, see N.J.S.A. 18A:66-39. Precedent construing the three statutes is thus relevant to the present matter.

What constitutes a "traumatic event" has vexed our courts since the Legislature's adoption of that statutory requirement, in lieu of a prior requirement that an "accident" be the precipitating cause of the disability. See L. 1966, c.67, § 4; see also Maynard v. Bd. of Trs. of the Teachers' Pension and Annuity Fund, 113 N.J. 169, 172-73 (1988); Cattani v. Bd. of Trs., Police and Firemen's Ret. Sys., 69 N.J. 578, 583-84 (1976); and ...


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