EDWARD ESTOK v. POLICE AND FIREMAN RETIREMENT SYSTEM (2011)

Petitioner Edward Estok, a former corrections officer employed by the New Jersey Department of Corrections (DOC), appeals from the final administrative decision of The Board of Trustees of the Police and Firemen's Retirement System (the Board).   The Board denied petitioner's application for accidental disability retirement benefits but awarded non-accidental disability benefits in connection with injuries petitioner suffered in three separate work-related events.   In doing so, the Board reversed the findings of the administrative law judge, who concluded that petitioner was eligible for accidental disability benefits pursuant to N.J.S.A. 43:16A–7.

We have considered the arguments raised in light of the record and applicable legal standards.   We affirm.

I.

Petitioner was hired by DOC on August 31, 1996, was enrolled in the Police and Firemen's Retirement System (PFRS), and subsequently became a senior corrections officer.   He was injured three times during his employment at the New Jersey State Prison in Trenton.

On June 29, 2004, petitioner tripped on an uneven ledge in a bathroom he was inspecting during a prisoner count and fell to the floor injuring his left knee and lower back.   After initial treatment and several weeks of physical therapy, petitioner returned to work with no restrictions, although he felt his knee “wasn't the same.”   He was required to wear a knee brace, received at least one Cortisone injection and regularly took medication for pain and swelling.

On February 9, 2005, petitioner reinjured his left knee when a bench he was sitting on in the men's locker room broke, causing him to fall.   Following treatment and more therapy, petitioner returned to work after approximately three months without restrictions.   He continued to wear a knee brace and experienced pain, weakness and numbness in the knee, along with a feeling of being “out of balance.”

On October 16, 2005, petitioner was injured while conducting a stairwell inspection at the facility.   As he descended the stairs, his knee buckled and twisted, and he grabbed the handrail to prevent himself from falling down.   Petitioner did not return to work after the incident and ultimately underwent arthroscopic surgery on December 13, 2005.   He returned to work in February 2006, but his knee was “even worse.”   He experienced “severe swelling ․ constant pain, and weakness.”   His knee was “drained” by the orthopedic surgeon on multiple occasions, and petitioner missed two weeks of work “[a]fter the [d]rainage.”   In April 2006, he was no longer able to work, and a second arthroscopic procedure took place on June 30, 2006.

In his operative report following the first surgery, Dr. Glenn M. Zuck diagnosed petitioner with:  grade III and grade IV “chondral lesions” on his patella, grade III lesions on his medial femoral condyle, and grade III lesions on his lateral tibial plateau.   Zuck's second operative report diagnosed petitioner with:  grade IV patellofemoral arthrosis, a grade II chondral lesion in the medial femoral condyle, and hypertrophic synovitis.   Petitioner continued to receive treatments after the second surgery.

On January 18, 2007, petitioner filed an application with PFRS for accidental disability retirement benefits.   On July 10, the Board determined that petitioner was “totally and permanently disabled from the performance of [his] regular and assigned duties as a direct result of the [three] incidents․  However, the Board determined that the incidents ․ [we]re not ․ ‘traumatic events' as detailed by ․ N.J.S.A. 43:16A–7 and relevant case law.”   The Board denied petitioner's application and instead awarded him non-accidental disability retirement benefits effective February 1, 2007.   On August 15, 2007, petitioner appealed the Board's decision and requested that the matter be referred to the Office of Administrative Law (OAL) for a de novo hearing.   While petitioner's appeal was pending, the Board reconsidered his application in light of the Supreme Court's decision in Richardson v. Bd. of Trs., 192 N.J. 189 (2007), which was issued on July 24, 2007.

On September 12, the Board again denied petitioner's application for accidental disability retirement benefits and again awarded only ordinary disability benefits.   However, the Board's rationale was slightly different.   It “determined that [petitioner] [wa]s totally and permanently disabled ․ and his disability [wa]s the direct result of the traumatic events occurring on June 29, 2004, and February 9, 2005․  However, [petitioner's] disability [wa]s not the direct result of the incident of October 16, 2005 and th[at] incident ․ [wa]s not considered a ‘traumatic event.’ ”   On September 19, 2007, petitioner again appealed the Board's decision to the OAL.

A hearing was conducted before the administrative law judge (ALJ) on April 8 and 30, 2009.   Petitioner testified to the events we have described.   He also explained that his position as a corrections officer did not allow reduced duties, and he was expected to perform the full ambit of responsibilities each day.   He also described the limitations on his lifestyle as a result of his injuries.

Petitioner produced David Weiss, a board-certified orthopedic doctor, as his expert.   Weiss opined that the first and second events were traumatically induced and caused problems to petitioner's knee.   Weiss believed that the third incident, which he described as “traumatic,” aggravated the condition.   Weiss further opined that the third incident was not the sole cause of petitioner's disability.   He explained:

I think they all built on one another․  [A]nd that's why my diagnosis had the aggravation of the pre-existing left knee pathology from the worker's compensation injuries,1 so the first two were traumatically induced.   The third was another exacerbation which he went going down the steps where he had that twisting injury, which then further aggravated and accelerated the injuries bringing him to the point where he had to undergo two surgeries.

Weiss opined that as a result of the October 2005 injury, petitioner also suffered a “subluxation” ² of the patella.   Weiss further noted that petitioner evidenced some “patella femoral arthritis,” but was uncertain as to when that developed.   He did note, however, that petitioner had no arthritis before the first incident.   Weiss concluded that petitioner was totally and permanently disabled and that petitioner's injuries were “traumatically induced.”

The Board produced Dr. Benjamin Epstein as an expert in the fields of orthopedics and orthopedic surgery.   Epstein had examined petitioner, issued three reports and concluded he was totally and permanently disabled.   Citing the operative report from petitioner's first surgery, Epstein noted that petitioner suffered from “extensive arthritis underneath his kneecap,” as well as arthritic changes in two other areas of his knee.   He opined, “[t]hese problems ․ have existed before and it was the last incident on the stairwell that brought these to [the] surface to need further aggressive care arthroscopically.”   Epstein noted the second operative report demonstrated that petitioner's knee was undergoing “a degenerative process.”   Epstein believed that petitioner's obesity contributed to the arthritic changes.   Regarding the cause of petitioner's total and permanent disability, Epstein opined:

[H]e sustained a twisting injury to his knee resulting in the ․ aggravation of a preexisting degenerative process that was stable in his knee up until that time.   In addition his weight is a ․ comorbid factor because it adds additional stress to the knee․

Epstein was extensively cross-examined about his various reports.   In his first report, Epstein concluded that petitioner was totally and permanently disabled as a result of the three incidents, but did not specifically mention arthritis as a factor, noting only that petitioner's treating doctor was of the opinion that arthritis had developed in the knee.

Epstein's second report is not in the appellate record, however, he was extensively cross-examined regarding its contents.   In particular, Epstein opined in the report:

There's no doubt that [petitioner] had some form of preexisting degenerative arthritis to the knee.   However, I do agree that in all probability the cumulative traumatic events or more specifically the injury of 10/16/05 materially worsened his left knee internal pathology to the point where he was totally and permanently disabled from the ability to return to his position as a corrections officer.

At the hearing, Epstein claimed that he actually meant to say that he did not agree that the events were cumulative.

In his third report, Epstein concluded that the “single, essential, significant contributing cause to [petitioner's] disability is the pre-existing, degenerative arthritis of his knee.”   Epstein also concluded that any injury petitioner suffered in the last incident was isolated from the first two because petitioner had returned to work and experienced no physical problems.   Epstein acknowledged that his third report was rendered after “a lengthy discussion ․ with the Deputy Attorney General's [DAG] office.”

On June 26, 2009, the ALJ issued a written decision reversing the Board's decision and awarding accidental disability retirement benefits to petitioner.   The ALJ found Weiss more credible than Epstein, and she concluded that petitioner experienced two traumatic injuries which caused his left knee to develop “trauma-caused” arthritis.   The ALJ found that petitioner did not have arthritis prior to the first incident, and that his excessive weight did not damage his knee.   Instead, the “trauma-caused” arthritis made his knee buckle on October 16, 2005, leading to more damage to the same knee in an “unbroken chain of events.”

The DAG filed exceptions to the ALJ's decision and petitioner responded.   At its September 21, 2009 meeting, the Board modified the ALJ's findings of fact and rejected her conclusions of law.

In a written decision dated October 16, the Board noted that while “it is generally bound by the factual findings that turn on the credibility of law witnesses,” “the factual findings in this case are based on expert opinion evidence․”  Citing N.J.S.A. 52:14B–10(c), the Board determined that it was appropriate to modify the ALJ's findings of fact.   After extensively reviewing Weiss' and Epstein's testimony, the Board found:

[T]he incident of October 16, 2005, was not the direct result of [petitioner's] disability and the incident on this date is not undesigned or unexpected and not a result of an external circumstance but it was the result of pre-existing disease that was aggravated or accelerated by the work effort.   Therefore, the third incident did not fall within the statutory requirements of a traumatic event and is hereby modified as part of the [f]indings of [f]act.

The Board rejected the legal conclusions reached by the ALJ. In particular, the Board determined that the ALJ had not addressed whether petitioner's disability was the “direct result” of a traumatic event.   The Board reasoned:

Here, [petitioner] was not totally and permanently disabled as a direct result of the incidents of June 29, 2004 and February 9, 2005 because he was able to work with no restrictions.   The first two incidents are too remote in time to be considered the direct cause of [petitioner's] ultimate disability.   Moreover, the third incident only aggravated and accelerated [petitioner's] pre-existing arthritic condition.   Rather, it is the pre-existing degenerative arthritis of the knee that is the essential, significant, contributing cause of [petitioner's] disability.

The Board also rejected eligibility based upon “a delayed manifestation” of petitioner's injuries.

This appeal followed.

II.

Our review of final actions by an administrative agency is limited.  Bueno v. Bd. of Trs., 404 N.J.Super. 119, 124 (App.Div.2008), certif. denied, 199 N.J. 540 (2009).   We are restricted to four essential inquiries:

(1) whether the agency's decision offends the State or Federal Constitution;  (2) whether the agency's action violates express or implied legislative policies;  (3) whether the record contains substantial evidence to support the findings on which the agency based its action;  and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr.   Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

We also afford “substantial deference to an agency's interpretation of a statute that the agency is charged with enforcing.”  Richardson, supra, 192 N.J. at 196.   We are, however, “ ‘in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.’ ”  Ibid. (quoting In re Taylor, 158 N.J. 644, 658 (1999) (in turn quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

The governing statute at issue provides in relevant part:

(1) Upon the written application by a member in service ․ any member may be retired on an accidental disability retirement allowance;  provided, that the medical board, after a medical examination of such member, shall certify that the member 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 and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him.   The application to accomplish such retirement must be filed within five years of the original traumatic event, but the board of trustees may consider an application filed after the five-year period if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member.

․

(4) Permanent and total disability resulting from a cardiovascular, pulmonary or musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.

[N.J.S.A. 43:16A–7(1), (4).]

As the Richardson Court noted, “our courts have continuously struggled over the meaning of ‘direct result of a traumatic event’ because that language is susceptible to more than one interpretation.”  Richardson, supra, 192 N.J. at 196 (quoting N.J.S.A. 43:16A–7(1) (citations omitted).   The struggle to interpret the statute continues under the particular facts of this case.

The Richardson court identified the appropriate standard to be applied when considering whether petitioner is entitled to accidental disability benefits:

[T]o obtain accidental disability benefits, a member must prove:

1. that he is permanently and totally disabled;

2. as a direct result of a traumatic event that is

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

4. that the disability was not the result of the member's willful negligence;  and

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Richardson, supra, 192 N.J. at 212–13.]

In this case, it is undisputed that petitioner qualified for benefits under prongs 1, 3, 4 and 5 of the Richardson test.   It is prong 2 that is at issue.

“[A] traumatic event is essentially the same as what we historically understood an accident to be—an unexpected external happening that directly causes injury and is not the result of pre-existing disease alone or in combination with work effort.”  Id. at 212 (emphasis added).  “The polestar of the inquiry is whether, during the regular performance of his job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member.”  Id. at 214.

In denying petitioner's application, the Board concluded that the October 2005 stairwell incident was not “undesigned and unexpected and was not caused by circumstances external to the member.”   This conclusion, in our opinion, somewhat conflates two separate standards of a qualifying “traumatic event” under the Richardson test.   In other words, the first inquiry is whether descending the stairs was an “undesigned and unexpected” event;  if not, petitioner does not qualify.   The second inquiry, assuming arguendo the incident was “undesigned and unexpected,” is whether it was “caused by circumstances external to the member.”

Turning to whether petitioner established the October 2005 stairwell incident was a “traumatic event,” we note that the Richardson court clearly stated that a qualifying event can occur “during ordinary work effort.”  Richardson, supra, 192 N.J. at 214.   The Court provided some examples:

A policeman can be shot while pursuing a suspect;  a librarian can be hit by a falling bookshelf while re-shelving books;  a social worker can catch her hand in the car door while transporting a child to court.   Each of those examples is identifiable as to time and place;  undesigned and unexpected;  and not the result of pre-existing disease, aggravated or accelerated by the work.

[Ibid. (emphasis added).]

These are distinguished from other examples used by the Court;

By way of example, a police officer who has a heart attack while chasing a suspect has not experienced a traumatic event.   In that case, the work effort, alone or in combination with pre-existing disease, was the cause of the injury.   However, the same police officer, permanently and totally disabled during the chase because of a fall, has suffered a traumatic event.   Similarly, the gym teacher who develops arthritis from the repetitive effects of his work over the years has not suffered a traumatic event.   His disability is the result of degenerative disease and is not related to an event that is identifiable as to time and place.   On the contrary, the same gym teacher who trips over a riser and is injured has satisfied the standard.

[Id. at 213.]

In Richardson, the Court determined that the petitioner met the standard because “[w]hile performing the regular tasks of his job as a corrections officer, subduing an inmate, Richardson was thrown to the floor and hyperextended his wrist.”  Id. at 214.   In short, the need to subdue the inmate was “undesigned and unexpected,” and the petitioner's injury was caused by a “circumstance external to the member,” i.e., being thrown to the floor during the struggle, causing his wrist to hyperextend.

In this case, petitioner was descending stairs when his knee buckled, causing him to grab onto the handrail for support, and resulting in a twisting of his knee.   He acknowledged that he did not slip or trip upon debris or some other substance on the stairs, nor did he fall during the incident.   The event was not “undesigned and unexpected” because petitioner was doing exactly what he intended to do, i.e., descending the stairs.

To the extent petitioner contends the event was “undesigned and unexpected” because he did not anticipate his knee would buckle, we reject the argument.   Whether an event is “undesigned and unexpected” cannot be judged solely by the result;  it must be examined within the context of what petitioner was doing at the time.   In the example used by the Richardson court cited above, a police officer chasing a fleeing suspect does not intend or expect to suffer a heart attack;  but chasing the suspect in the first instance was neither “undesigned” nor “unexpected,” given his job duties.   However, if the same officer became “totally disabled during the chase because of a fall,” id. at 213, he would qualify since an event, the fall, which was “undesigned and unexpected,” had occurred.  Id. at 212.

Petitioner cites the following passage from Russo v. Teachers' Pension & Annuity Fund, 62 N.J. 142, 154 (1973), for support:

In ordinary parlance, an accident may be found either in an unintended external event or in an unanticipated consequence of an intended external event if that consequence is extraordinary or unusual in common experience.

Petitioner argues that the buckling of his knee was an “unanticipated consequence” of descending the stairs because “[i]n common experience, the inspection of a stairwell would not cause a disabling knee injury.”   In our view, twisting one's knee while ascending or descending stairs is not “extraordinary or unusual in common experience.”  Ibid.

Petitioner has also brought to our attention the unreported decision of our colleagues in Henderson v. Bd. of Trs., Pub. Emps. Ret. Sys., No. A–6176–08 (App.Div. July 30, 2010), and argues it is persuasive because of similar facts.   While we address the decision in greater detail below, we note that Henderson provides no support for petitioner as to this threshold issue, i.e, was the October 2005 stairwell incident a “traumatic event?”

In Henderson, a public employee who had suffered a traumatic injury to his back three years earlier reinjured himself while removing an air conditioner cover and placing it to the side.  Id. (slip op. at 3–4).³  The panel noted, “[a]lthough the event was certainly identifiable as to time and place, it was not ‘undesigned and unexpected’ because Henderson did exactly what he intended to do—remove the cover of the air-conditioning unit and set it to one side as he repaired the unit.”  Id. at 26.   Our colleagues also noted, “[the event] was not caused by a circumstance external to Henderson—he was the actor moving the panel.”  Ibid.

So, too, in this case, petitioner was doing exactly what was intended and expected, i.e., descending the stairs, when his knee buckled.   In sum, petitioner's disability was not the “direct result of a traumatic event that [wa]s ․ undesigned and unexpected, ․ and caused by a circumstance external to” him.  Richardson, supra, 192 N.J. at 212–13.   That conclusion does not end our analysis.

At oral argument before us, petitioner contended that Henderson presented facts most analogous to his situation.   Although our colleagues rejected the petitioner's claim that Henderson had experienced a “traumatic event” during the second incident, the panel awarded accidental disability benefits because the petitioner had “suffered a traumatic injury in 2003 that was the proximate cause of the delayed manifestation of his total permanent disability.”   Henderson, supra, slip op. at 30;   see also N.J.S.A. 43:16A–7(1) (“the board of trustees may consider an application filed after the five-year period if it can be factually demonstrated ․ that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member”).

In this case, however, petitioner never asserted that he was disabled after the first two accidents, and that his symptoms only became manifest after the third incident.   Indeed, his expert testimony was to the contrary.   Weiss concluded that petitioner's injuries “all built on one another” but that he only became totally disabled after the third, stairwell incident.   Finding Weiss' testimony more credible than Epstein's, the ALJ determined that petitioner

suffered two traumatic injuries, which caused the knee to develop arthritis ․ The trauma-caused arthritis, in turn, caused the knee to give way on the stairs, leading to still more damage, in an unbroken chain of events.   This is consistent with the statutory scheme, which allows an application for accidental disability to be filed within five years of the disabling event and even longer if the member can demonstrate delayed manifestation of the disability․  If the full medical consequences of all accident had to be apparent within a few months, then there would be no reason for the provision.

The Board properly rejected this portion of the ALJ's analysis, noting that she had “mis-interpreted the meaning of the statutory scheme.”   Here, petitioner never asserted that his “disability [wa]s due to the [prior two] accident[s],” which resulted in “a delayed manifestation of the disability.”   N.J.S.A. 43:16A–7(1).   The facts presented in this case are distinguishable from Henderson, supra.

Affirmed.

FOOTNOTES

FN1. This was the terminology Weiss used when describing petitioner's first two work-related incidents..  FN1. This was the terminology Weiss used when describing petitioner's first two work-related incidents.

FN2. “[S]ubluxation” is defined as “[a]n incomplete luxation or dislocation;  though a relationship is altered, contact between join surfaces remains.”   Stedman's Medical Dictionary 1693 (26th ed. (1995)..  FN2. “[S]ubluxation” is defined as “[a]n incomplete luxation or dislocation;  though a relationship is altered, contact between join surfaces remains.”   Stedman's Medical Dictionary 1693 (26th ed. (1995).

FN3. The Henderson panel was construing N.J.S.A. 43:15A–43 which uses similar language to define a “traumatic event” in the context of accidental disability benefits for members of the Public Employees' Retirement System..  FN3. The Henderson panel was construing N.J.S.A. 43:15A–43 which uses similar language to define a “traumatic event” in the context of accidental disability benefits for members of the Public Employees' Retirement System.

PER CURIAM