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Philip Ciallella v. Board of Trustees

July 26, 2011

PHILIP CIALLELLA, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Department of the Treasury, Division of Pensions and Benefits, Docket No. PERS 2-10-227137.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 2011

Before Judges R. B. Coleman and Lihotz.

Petitioner Philip Ciallella appeals from a final decision of the Board of Trustees of the Public Employees' Retirement System (the Board), which denied his application for accidental disability retirement benefits and granted ordinary disability retirement benefits. On appeal, petitioner argues the Board's decision must be reversed, not only because it was arbitrary, capricious, and unreasonable, but also because it misinterpreted the law, leading the Board to the wrong result. We disagree and affirm.

The facts are uncontroverted. Petitioner worked as a utilities laborer for the Borough of Spring Lake Heights (the Borough). On September 7, 2006, petitioner was serving as a borough sanitation worker when he suffered a debilitating injury. Petitioner applied for accidental disability retirement benefits, which are "paid at a higher rate than ordinary disability retirement benefits." Hayes v. Bd. of Tr., Police and Firemen's Ret. Sys., __ N.J. Super. __, __ (App. Div. 2011) (slip op. at 2) (citing Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 43 (2008)). The request was denied by the Board and he appealed. The matter was deemed a contested case and transferred to the Office of Administrative Law for an evidentiary hearing, during which petitioner alone testified.

Petitioner explained certain municipal streets are too narrow to allow a full-sized refuse truck to navigate. In that instance, the driver would stay with the truck and petitioner would drive down the side street in a Cushman, which he described as a small, three wheeled vehicle with a five-foot-high tub on the back.

On the day of the accident, petitioner, who was then age 56, stood five feet, seven inches tall, and weighed one-hundred and fifty-five pounds, was operating the Cushman, which required him "to lift trash cans above his head and dump the trash into the Cushman's tub . . . ." When the tub reached capacity, petitioner returned to the main street and fed the trash into the full-size refuse truck.

Petitioner described the events leading up to his injury. He was collecting garbage as usual when he encountered a trash can that was exceptionally heavy:

I got to that house, I had picked that can up and as I . . . lifted it, [I] started to get it over my head [when] I realized it was quite heavy, and as I went to dump it into the tub, the weight of the can with my hand on the handle, . . . it was that heavy that it had jerked me down, and when it did it yanked my arm down because I still had the handle basically inside the tub, and that's when I felt the pain in my chest, it jerked my arm down real quick because of the weight and lurched me into the vehicle.

Petitioner elaborated, stating his left hand was holding the handle of the trash can and his right hand was supporting the bottom of the can, which he believed weighed about seventy pounds. He stated, "when I got it up I realized how heavy it was, and as I started to tip it[,] the weight took [] my hand that was on the handle and that's what jerked down." As he was jerked down, the weight of the can pushed his "chest area into the side of the Cushman[,]" which was made of hard plastic. Petitioner felt a "quick sharp pain" in his chest area which led him to believe he tore a muscle. Petitioner did not fall to the ground, but ended up leaning against the Cushman.

On cross-examination, he again described the onset of the pain:

A: As I started to tip it into the tub the whole weight of it started to pull the can. I didn't -- I felt the pain and all of a sudden the weight grabbed the can and snapped my arm down.

Q: Okay.

A: And it actually snapped it. I mean, I've picked cans up before and just dumped them. That's not -- this thing actually yanked me like that, pulled my arm down into the can. When I felt that snap and it pulled me into the buggy that's when I had felt the pain in my chest, but it was basically the ...


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