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Kristine Zutell v. Police and Firemen's Retirement System

October 3, 2012

KRISTINE ZUTELL, PETITIONER-APPELLANT,
v.
POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS #3-10-38629.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 12, 2012

Before Judges Simonelli and Accurso.

Kristine Zutell appeals from a final decision of the Board of Trustees, Police and Firemen's Retirement System (Board), denying her application for accidental disability benefits. The Board determined that Zutell did not establish that her disabling condition was a direct result of a traumatic event. We affirm.

The record reflects that Zutell was a county correction officer working the midnight shift on September 3, 2007 at the Bergen County Jail. While running to respond to the report of an inmate assault on another officer at 3:45 a.m., she injured her right knee. By the time Zutell arrived at the scene, the inmate had already been subdued. Zutell reported her injury to her sergeant, who asked if she wished to go to the hospital. Zutell declined, advising that she would try to finish her shift.

Shortly before the end of her shift, Zutell reported to her sergeant that she was not feeling well, and another officer drove her to the hospital. There, Zutell reported that she "felt a pop in my R[ight] knee," while responding to an incident at work. She described pain in her knee, right shoulder and neck. The injury forced Zutell to remain out of work until the end of September when she returned to light duty. She returned to full duty in February 2008.

Zutell applied for accidental disability benefits in August 2008. The Board denied her application in July 2009, granting her an ordinary disability pension. Zutell appealed, and the matter was transferred to the Office of Administrative Law (OAL) for a hearing as a contested case. The OAL hearing was held on April 9, 2011.

The only witness to testify at the hearing was Zutell, who claimed that she slipped and fell while running to assist a fellow officer. On cross-examination, Zutell was forced to admit that none of the four reports of her injury, all of which were prepared within twenty-four hours of its occurrence, mentions a slip and fall. The three reports that describe the incident in any detail all make the same reference to Zutell feeling "a pop" in her right knee. One of these three reports, written in the first-person, bears Zutell's signature. Zutell testified that the signature is a forgery, that she had not prepared any of the reports of her injury, and that she had not used the word "pop" in reporting her injury to her superiors.

Zutell also testified on cross-examination that she had undergone surgery on her right knee in February 2005 and January 2007. A report by her treating physician, prior to her first surgery, notes that Zutell complained of frequent buckling of her knee. A post-surgical follow-up by the same doctor reports that Zutell "felt something pop on the outside of her knee," while exercising following knee surgery.

The administrative law judge (ALJ) denied Zutell's application for accidental disability benefits on June 10, 2011. The ALJ found that Zutell had not suffered any mishap at work, but was merely running to respond to a code "when her knee gave way or popped." None of the contemporaneous documents describe any evidence of a slip and fall or other mishap, and Zutell did not produce any evidence corroborating her contention of a slip and fall. The ALJ also found that Zutell's knee having given out while performing her duties on September 3, 2007, could not be deemed wholly unexpected in light of her two prior knee surgeries. Finally, the ALJ found that Zutell's work effort merely aggravated her pre-existing knee condition. The Board adopted the ALJ's findings of fact and conclusions of law on July 12, 2011. This appeal followed.

Zutell argues on appeal that the Board erred in adopting the ALJ's finding that she did not satisfy the requirements for accidental disability benefits. Specifically, she contends that the incident of September 3, 2007 was a qualifying traumatic event.

Our role in reviewing the decision of an administrative agency is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a strong presumption of reasonableness to an agency's exercise of its statutorily delegated responsibility, City of Newark v. Natural Res. Council, 82 N.J. 530, 539 cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to its fact finding. Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 29 (1995) (Handler, J., dissenting). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Our public pension systems are "bound up in the public interest and provide public employees significant rights which are deserving of conscientious protection." Zigmont v. Bd. of Trs., Teachers' Pension & Annuity Fund, 91 N.J. 580, 583 (1983). Because pension statutes are remedial in character, they are liberally construed and administered in favor of ...


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