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In re Benbrook

December 11, 2009

IN THE MATTER OF DANIEL BENBROOK.


On appeal from the Board of Trustees, Police and Firemen's Retirement System, No. 3-10-33509.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 16, 2009

Before Judges Rodríguez and Reisner.

Daniel Benbrook appeals from an August 12, 2008 decision of the Board of Trustees of the Police and Firemen's Retirement System (Board), rejecting his claim for accidental disability benefits. We affirm.

I.

Benbrook, a police officer, applied for accidental disability retirement benefits in January 2006.*fn1 The Board found him to be totally and permanently disabled from performing his police duties and awarded him ordinary disability retirement benefits. However, the Board denied his claim for accidental disability retirement, concluding that he did not satisfy N.J.S.A. 43:16A-7, which requires that an employee be "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." (Emphasis added).*fn2

Benbrook appealed and was granted an administrative hearing. With the parties' consent, the assigned administrative law judge (ALJ) bifurcated the hearing, first considering whether Benbrook suffered a traumatic event.

At the first hearing, there was no dispute that Benbrook was injured during an incident on July 12, 2002 in which he attempted to pull a suspect off a motorcycle. According to Benbrook, when he stopped the suspect and ordered him to get off the motorcycle, the suspect, who was about 6 feet 3 inches tall and weighed about 250 pounds, hit him in the throat, and then hit him in the shoulder. Nonetheless, Benbrook, who was 6 feet 5 inches tall and weighed 280 pounds, was able to grab the suspect's arm and hold him until backup officers arrived. In his testimony, Benbrook confirmed that neither he nor the suspect fell during the incident. However, the suspect continued to flail his body while Benbrook was holding onto him.

After hearing this evidence, the ALJ determined that Benbrook had suffered a traumatic event, in that he had been "the subject of an unprovoked attack" by a suspect. The ALJ then held a second hearing to address whether Benbrook's disability was a direct result of the traumatic event. The evidence at that hearing consisted of additional testimony from Benbrook, plus videotaped de bene esse depositions from the parties' medical experts.

At this hearing, Benbrook testified that when he was about twelve years old, he had pins inserted in his upper legs to address a condition known as "slipped epiphysis." The pins were removed when he was fourteen, and he had no problems with his legs thereafter. He had lived a very active life, including playing high school sports and semi-professional football, serving in the military, and serving as a police officer for twelve years. During all that time, he had no problems with his hip or his back, until after the July 2002 incident. On cross-examination, he acknowledged that after the incident, he had been diagnosed with osteoarthritis of the right hip and a spinal condition known as spondylolisthesis.

Benbrook presented videotaped testimony from his treating orthopedic surgeon, Dr. John Michael Tozzi. Dr. Tozzi did not submit an expert report and his testimony was limited to his treatment and diagnosis of Benbrook. Dr. Tozzi began treating Benbrook in September 2006. Benbrook told Tozzi that during the July 2002 incident, he felt "significant pain and discomfort in his hip with a pop." Benbrook reported that after the incident, he had "unremitting and unbearable" pain in his right hip. Tozzi's diagnosis at that time was as follows:

[I]t is my opinion that this gentleman has an underlying degenerative process. He suffered a traumatic injury with bleed into his capsule, possible small microfracture within the femoral head . . . I will have to state that this is an exacerbation of his underlying pathology, but this is certainly related to his injury as of July 12th, 2002.

Tozzi knew that Benbrook had "hip pathology" as a child, which was addressed by inserting pins. He testified that Benbrook had "an underlying degenerative process secondary to having [that] procedure." On cross-examination, he agreed this degenerative condition was "osteoarthritis." However, because Benbrook had been able to live an active life and had been "totally asymptomatic up until the time of the [2002] injury," Tozzi opined that "this [injury] was the major factor in the cause for his need for further ...


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