July 26, 2011
PHILIP CIALLELLA, PETITIONER-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 snapping down from the weight that came down, that's when I felt something go.
Q: But didn't you just also say that you felt the pain and then . . . your arms started to go? I mean, that's what I'm curious about. It seems like -- were there . . . two moments of pain?
A: No, it was one moment. As I got it here and I started dumping it, it yanked this arm down, that's when I felt the pain in my chest, when it snapped me around.
After the injury, he drove the Cushman to the municipal refuse truck and asked the driver to call for first aid. Petitioner was taken to the hospital for x-rays and the next day he saw the appointed workers' compensation physician, who recommended conservative treatment including two weeks of physical therapy. At the conclusion of the two-week period, petitioner reported his pain persisted, so an MRI was ordered, the results of which were non-specific. The diagnostic conclusion was petitioner suffered a muscle strain and chest contusion. Further physical therapy was ordered over two months. Petitioner continued to experience tenderness and instability. A bone scan revealed he had a fractured sternum.*fn1
Petitioner underwent surgery to repair the injury; a titanium plate was inserted into his chest to stabilize the sternum while the bones healed. Thereafter, petitioner could not work and was restrained from lifting anything heavier than fifteen pounds.
The ALJ rendered his written initial decision on May 14, 2010. He found petitioner "was injured on September 7, 2006 when the undesigned and unexpected force of an overweight garbage can caused petitioner's chest to severely impact the rear of his Cushman vehicle." See N.J.S.A. 43:15A-43 (requiring proof of a traumatic event causing a disabling injury to qualify for accidental retirement disability). The ALJ further found petitioner was permanently and totally disabled resulting from "an external circumstance and not the result of any pre-existing disease or condition." From these findings, the ALJ concluded petitioner "met his burden and satisfied the standard set forth in Richardson v. Board of Trustees, Police and Firemen's Retirement System, [192 N.J. 189 (2007)] and is therefore entitled to accidental disability retirement benefits."
The State filed exceptions to the ALJ's findings and conclusions. The Board reviewed the matter and on August 19, 2010, modified the ALJ's factual findings and rejected his conclusion. Addressing causation, the Board stated:
The evidence and [p]petitioner's credible testimony indicate that in the act of lifting, when tipping the heavy garbage can, [p]petitioner became aware the can was too heavy and attempted to avoid injury by dropping it, but was injured anyway. Petitioner alleges no injury from the impact of hitting the tub, and admits his left hand was not injured. Petitioner was injured by his ordinary, though strenuous, work effort. Further, other than [his] testimony, there is nothing in the record to support the ALJ's determination that [p]petitioner fractured his sternum when hitting the Cushman vehicle.
Applying the applicable legal standards to these modified facts, the Board concluded there was nothing "undesigned" or "unexpected" about petitioner's work activity on the day in question:
[P]petitioner admits that there was nothing out of the ordinary about the way he was working on the day of his disabling injury. He testified that he did not know the weight limit imposed by the township, and it was his regular, conscious practice to lift whatever residents put out if he could do so. Unlike some very heavy cans that [p]petitioner normally could not have lifted at all, the can he lifted on September 7, 2006, while heavy, could in fact be lifted.
The Board concluded the incident was not a traumatic event, as required by N.J.S.A. 43:15A-43, but "caused by [p]petitioner's own action of picking up a heavy trash can and lifting it over his head, thus the injuries sustained were not caused by an external circumstance." The Board reasoned:
[Petitioner]'s ordinary, if strenuous, work effort was too much for him on that particular day. Like Cattani [v. Board of Trustees, Police and Firemen's Retirement Systems, 69 N.J. 578 (1976)], he appears to have been disabled by strenuous work effort that did not involve an external event. But under Richardson, supra, disability based on work effort alone does not entitle a disabled member to an accidental disability retirement.
Our limited review is guided by well-settled principles. Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't. of Envtl. Prot., 191 N.J. 38, 48 (2007). We are obliged to afford substantial deference to decisions of state administrative agencies. Cooper Univ. Hosp. v. Jacobs, 191 N.J. 125, 140 (2007); St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 13-15 (2005). Generally, "[a] strong presumption of reasonableness attaches to the actions of administrative agencies." In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). We do not substitute our judgment for that of the agency. Div. of Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 183 (2007).
When a factfinding error is alleged, our review determines whether sufficient credible evidence exists in the record from which the findings made could reasonably have been drawn. Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006). This review encompasses "the proofs as a whole" and takes into account "the agency's expertise where such expertise is a pertinent factor." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will not upset the ultimate determination of an administrative agency unless it is shown to be arbitrary, capricious or unreasonable, or to have violated legislative policies expressed or implied in the enabling legislation.
Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 N.J. 215, 223-24 (2009). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Nonetheless, we are not bound by an agency's decision on a question of law. Thurber v. City of Burlington, 191 N.J. 487, 502 (2007). Even though we afford substantial deference to an agency's interpretation of the statute it is charged with enforcing, R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999), "we still reverse where the decision is 'plainly unreasonable.'" Hayes, supra, slip op. at 11 (quoting Stevens v. Bd. of Trs., 294 N.J. Super. 643, 652 (App. Div. 1996)).
An agency may "reject or modify findings of fact, conclusions of law or interpretations of agency policy in the [ALJ's initial] decision, but shall state clearly the reasons for doing so." N.J.S.A. 52:14B-10(c). See also Hayes, supra, slip op. at 11. If the agency rejects or modifies findings based on the credibility of any witness, it must specifically inform the parties of the reasons for disagreement and make new or modified findings supported by the record. N.J.S.A. 52:14B- 10(c). We note "there remains a 'particularly strong need for careful appellate review' where an agency's factual findings are contrary to those of the ALJ." Hayes, supra, slip op. at 11 (quoting In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001)).
Consequently, our role in reviewing a final decision of an administrative agency is limited to four inquiries: (1) whether the agency's decision comports with federal and state constitutional requirements; (2) whether the agency's action is supported by express or implied legislative policies; (3) whether the factual findings that provide a foundation for the agency's decision are based on substantial evidence; and (4) whether the legislative policies, when applied to the facts, show that the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. In re Taylor, 158 N.J. 644, 656 (1999). Keeping these principles in mind, we examine the issues presented on appeal.
Petitioner seeks reversal of the Board's denial of benefits, maintaining he has met all the requirements of N.J.S.A. 43:15A-43, which provides, in pertinent part:
A member who has not attained age 65 shall . . . be retired by the board of trustees, 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, on an accidental disability allowance.
There is no dispute that petitioner is totally and permanently disabled, or that he suffered an accidental injury on September 7, 2006, which occurred during his regular employment. Disagreement centers on whether what occurred sufficiently constituted a traumatic event, as required by the statute.
Our determination is guided by prior Supreme Court determinations. In Cattani, supra, the Court suggested "[t]he phrase 'traumatic event' would ordinarily involve a mishap or accident involving the application of some kind of external force to the body or the violent exposure of the body to some external force." 69 N.J. at 586. Thereafter, various decisions considered the same question, reaching somewhat inconsistent results.
In Richardson, supra, the Court set forth "a course correction" reviewing the statute's history and amendments, as well as the twists and turns of prior case law, to define the applicable considerations when assessing a traumatic event for purposes of accidental disability retirement. 192 N.J. at 210. Expounding on the misdirected prior attempts at statutory interpretation, the Court declared the Legislature's intention in amending the statute was served best by the test determined in Cattani, which encompassed within the scope of traumatic events "ordinary mishaps, including lacerations, trips, and falls" that "can occur during usual work effort." Id. at 211-12. "Thus, a member who is injured as a direct result of an identifiable, unanticipated mishap has satisfied the traumatic event standard." Id. at 213.
The Court has also addressed the statute's "direct result" requirement, holding "[t]he word 'direct' connotes relative freedom from remoteness, whether in terms of time, intervention of other contributive causes or the like, or a combination of such factors." Gerba v. Bd. of Trs., Pub. Employees' Ret. Sys.,
83 N.J. 174, 186 (1980) (quoting Titman v. Bd. of Trs., Teachers' Pension & Annuity Fund, 107 N.J. Super. 244, 247 (App. Div. 1969)). Therefore, a traumatic event is the direct cause of permanent and total disability if it is "the essential significant or substantial contributing cause of the disability." Id. at 187.
Petitioner challenges the Board's rejection of the ALJ's findings that he suffered a traumatic event causing his permanent disability, and suggests its findings were inadequate. We disagree.
The Board rejected the ALJ's "medical conclusion" that petitioner was injured as a result of his body striking the Cushman and that his disabling injury was caused by impact with the Cushman. Specifically, the Board disregarded the ALJ's conclusion because it was unsupported "by sufficient, competent and credible evidence in the record." N.J.S.A. 52:14B-10(c).
In expressing its modified findings, the Board stated: (1) the "evidence and [petitioner]'s credible testimony indicate that in the act of lifting, when tipping the heavy garbage can, he became aware the can was too heavy and attempted to avoid injury by dropping it, but was injured anyway," and (2) petitioner "felt pain when he tipped the can and was jerked to the side by its unusually heavy weight."
A review of petitioner's statements on direct and cross-examination supports these findings. When testifying before the ALJ, petitioner described his work actions as ordinary and normal. He did not advance, as he does on appeal, that his injury resulted from striking the Cushman. He specifically asserted his injury occurred when tipping the can into the Cushman's tub. Petitioner testified the can "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 . . ." Also, when petitioner submitted his January 30, 2008 letter to the Division of Pensions and Benefits, he did not mention contact with the Cushman as the cause of his disability, but instead stated: "The 'traumatic event' was the weight of the can which hurled my body in such a manner as to cause the injury."
We find the Board properly discharged its duty by clearly expressing the reasons for setting aside the ALJ's factual findings and in reaching its own determinations. Further, we determine the Board's findings are grounded in the record and not arbitrary, capricious or unreasonable. N.J.S.A. 52:14B-10(c). See also Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
The Board's observation that petitioner had not alleged an injury resulted from the impact of hitting the side of the Cushman, or provided medical evidence tying his fractured sternum to contact with the Cushman, was based on the testimonial and documentary evidence offered in the evidentiary hearing. Petitioner stated he was hurt as he dumped the heavy can, not while attempting to lift it or in striking the Cushman. These modified factual findings support the Board's resultant conclusion that "there was nothing 'undesigned' or 'unexpected' about the work activity itself in this case."
Petitioner also directs our review to a previous board determination, approving an accidental disability retirement application of a garbage collector who was injured when he attempted to pick up an unexpectedly heavy garbage can. Montani v. Pub. Emp. Ret. Sys., OAL DKT. No. 03236-08. In Montani, the petitioner attempted to lift a trash can that weighed well over one-hundred pounds. He lifted the can a few inches off of the ground when he heard a "pop" and felt a burning sensation in his lower back, resulting in a disabling back condition. The Board distinguished the facts in Montani's from the present matter, stating:
[Petitioner] herein testified that he felt pain after the weight of the can jerked him to one side. He had already lifted the can up off the ground, without noticing any extraordinary weight, and over his head. It was at this point, that he lost control of the can and the weight of the can caused him to twist.
Petitioner argues this attempted distinction is erroneous, urging there is virtually no difference in the facts of the two cases. We are not persuaded.
The chief distinction between this matter and the facts presented in Montani is causation. In Montani, the petitioner picked up a trash can as he normally would and was immediately injured because the can weighed over one-hundred pounds. Here, petitioner picked up the trash can as he normally would, successfully lifted it over his head, but was injured as he tipped the can's contents into the Cushman. As the Board found, petitioner's disabling injury stemmed from his routine "strenuous work effort," not from a traumatic event or the involvement of "an external event." Accidental disability retirement benefits may not be awarded for an injury resulting from the performance of strenuous work. Cattani, supra, 69 N.J. at 630.
We decline to disturb the Board's final decision denying petitioner's request for accidental disability retirement benefits in favor of ordinary disability retirement.