Lobo Andrews v. Board of Trustees, Etc.

• Court: New Jersey Superior Court Appellate Division
• Decided: January 10, 2025
• Docket: A-0809-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0809-23

LOBO ANDREWS,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent. __________________________

Argued November 14, 2024 – Decided January 10, 2025

Before Judges Marczyk and Paganelli.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. xx7801.

Samuel M. Gaylord argued the cause for appellant (Szaferman Lakind Blumstein & Blader, attorneys; Samuel M. Gaylord, on the brief).

Jakai Jackson, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Jakai Jackson, on the brief). PER CURIAM

Petitioner Lobo Andrews appeals from the October 19, 2023 Board of

Trustees (Board) of the Public Employees' Retirement System's (PERS) denial

of his application for accidental disability retirement benefits. Petitioner

contends the injury to his left shoulder occurred when he was restraining a

violent patient at the Ann Klein Forensic Center (AKFC) and constituted an

"undesigned and unexpected" event entitling him to an accidental disability

pension. The Board denied petitioner's claim, finding the injury was not

undesigned and unexpected. Following our review of the record and the

applicable legal principles, we reverse.

I.

We derive the following facts from petitioner's testimony and other

evidence presented at the hearing before the Administrative Law Judge (ALJ).

Petitioner testified he worked for AKFC, "a facility for the criminally insane,"

as a Senior Medical Security Officer for fifteen years, prior to ending his

employment following the incident. He noted a typical work day would include

"mak[ing] a count," "do[ing] medication[,] and tak[ing his patients] to

rehabilitation throughout the day" while "spend[ing] . . . a lot of time . . . on the

unit itself."

A-0809-23 2 On February 23, 2017, petitioner testified a "stat call" came in over the

loudspeaker for a "patient that was out of control." He ran to the incident and

"tr[ied] to get the patient down and into a net restraint" with other officers, which

involved "get[ting the patient's] arms inside the holes [of the net] and strap[ping]

the net on top of the patient [and] onto the bed" "[t]o keep [the patient] from

harming themselves."

Petitioner had prior experience with these calls, and it was part of his

responsibilities to respond. However, he explained this call was different

because the patient was "extremely combative." Petitioner recounted the patient

"kicking," "biting," "throwing punches and fighting." He characterized the

altercation as "like a . . . wrestling match." He recalled the incident lasting

fifteen to twenty minutes and "definitely" longer than normal. Petitioner

"attempt[ed] to keep the patient's legs down" while the other officers attempted

to restrain the patient. During the incident, petitioner sustained "several strong

kicks and knees" "into the shoulder."

After injuring his shoulder, petitioner indicated he followed AKFC's

procedures by completing an incident report before he sought medical attention.

Petitioner testified he reported to a nurse and supervisor on the scene and

eventually was transported to the hospital. Petitioner underwent surgery to his

A-0809-23 3 shoulder and did not return to his employment at AKFC. He received workers'

compensation benefits.

Petitioner stated he gave the Board's doctor a history of his injury that

matched "[his] description of accidental disability" "provided in the [original]

incident report[s]." Lastly, petitioner agreed that "the sort of uniqueness of this

particular incident [was] . . . the extended period of time and the tenacity at

which the patient was fighting, [which] . . . [made] this different than other

incidents that [he had] responded to."

On cross-examination, petitioner acknowledged he had completed

incident reports in the past but never had to modify one based on information

becoming available post-incident. He conceded he had restrained more than 100

patients in the past and that "every time [he] responded to a call, the patient

would be in different stages of agitation," with some patients being harder than

others to get into a restraint.

Petitioner was then asked to review the original incident reports prepared

around the time of the incident. The first report, dated February 23, 2017, read:

"While in process of restraining a patient and putting them in the net restraint,

[petitioner] hurt [his] left shoulder." He admitted to informing Hamilton

Physical Therapy Services on March 1, 2017, where he received treatment post-

A-0809-23 4 injury, that while he "restrain[ed] a [patient, he] sustained an impact injury to

[his] left shoulder." Petitioner also testified regarding his visits with Princeton

Orthopedics Associates, where a doctor's report noted petitioner "injured [his]

shoulder while restraining a patient." Confronted with further medical reports,

petitioner noted the reports showed the same general description of his injury to

his left shoulder.

In his "Application for Disability Retirement," petitioner characterized the

incident as an "assault." He acknowledged he never used that word before to

describe the incident. Petitioner testified the discrepancy occurred because "[he]

was in a lot of pain and [he] just needed to get some medical treatment" at the

time he completed the incident report. He further explained there was no

difference in being injured while getting assaulted by a patient as opposed to

being injured while restraining a patient. He testified "it's all tied in together"

in this situation.

Petitioner subsequently applied for accidental disability retirement

benefits. The Board denied the application, concluding the accident did not meet

the undesigned and unexpected requirement. 1 Petitioner appealed, and the

1 The Board determined petitioner was permanently disabled from a rotator cuff injury and labrum tear and awarded him ordinary disability retirement benefits. A-0809-23 5 matter was transferred to the Office of Administrative Law for a hearing before

an ALJ.

The ALJ determined petitioner "displayed a subjective recollection of the

[i]ncident, and his testimony essentially confirmed the facts as laid out by

respondent." The ALJ noted petitioner's testimony that the patient was

"extremely combative and thrashing about." However, the ALJ indicated

"nobody referred to the [i]ncident as an 'assault,' including petitioner, until he

submitted his version of the [i]ncident when filing his [accidental disability]

application." The ALJ found the other reports solely mentioned an injury and

"failed to describe an assault." Moreover, he noted petitioner "testified that the

patient was kicking at all the personnel and that he had not been a targeted victim

of a specific attack."

The ALJ concluded "[t]he injury to petitioner's left shoulder was the result

of petitioner performing his regular duties in a normal fashion," that

"[r]estraining patients was part of [petitioner's] regular job duties," that

"[petitioner] had dealt with restraining unruly patients more than one hundred

times," and that "[r]estraining unruly patients was so typical an occurrence that

the facility had established policies for such situations." The ALJ ultimately

denied the application for accidental benefits holding the incident "cannot be

A-0809-23 6 considered undesigned or unexpected" because it was part of petitioner's usual

job duties.

On October 19, 2023, the Board adopted the ALJ's decision. Thereafter,

petitioner appealed.

II.

Petitioner argues the Board improperly determined that he is not entitled

to an accidental disability pension because the incident causing his disability

was undesigned and unexpected.

We are cognizant that appellate review of an administrative agency's final

determination is limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,

206 N.J. 14, 27 (2011). Our courts generally "recognize that agencies have

'expertise and superior knowledge . . . in their specialized fields.'" Hemsey v.

Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223 (2009) (alteration

in original) (quoting In re License Issued to Zahl, 186 N.J. 341, 353 (2006)).

"[A]n appellate court ordinarily should not disturb an administrative

agency's determinations or findings unless there was a clear showing that[:] (1)

the agency did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence." In

re Virtua-W. Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422

A-0809-23 7 (2008). "The burden of demonstrating that the agency's action was arbitrary,

capricious[,] or unreasonable rests upon the person challenging the

administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.

2006).

Even so, "in reviewing agency actions, an appellate court is 'in no way

bound by the agency's interpretation of a statute or its determination of a strictly

legal issue.'" Hemsey, 198 N.J. at 224 (quoting In re Carter, 191 N.J. 474, 483

(2007)). "While we must defer to the agency's expertise, we need not surrender

to it." N.J. Chapter of Nat'l. Ass'n of Indus. & Off. Parks v. N.J. Dep't of Env't

Prot., 241 N.J. Super. 145, 165 (App. Div. 1990). We do not automatically

accept an agency's interpretation of a statute or a regulation, and we review

strictly legal questions de novo. Bowser v. Bd. of Trs., Police & Firemen's Ret.

Sys., 455 N.J. Super. 165, 170-71 (App. Div. 2018).

Petitioner contends "the Board erred in applying an unduly restrictive

notion of an 'undesigned and unexpected' event to [petitioner]'s . . . incident[,]

misconstruing Richardson [2] and reaching a decision at odds with the legislative

intent in adopting the 'traumatic event' standard." He asserts the Legislature did

not intend "to make it generally more difficult for injured employees to obtain

2 Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007). A-0809-23 8 an accidental disability pension[;]" instead, it "intended to weed out disabilities

stemming from a member's pre-existing medical condition, even if the condition

was exacerbated by a work incident."

Moreover, petitioner argues "the fact that a member is injured while

performing his ordinary duties does not disqualify him from receiving accidental

disability benefits; some injuries sustained during ordinary work effort will pass

muster and others will not." He contends the key inquiry is whether during the

regular performance of his job an unexpected happening—not the result of a

pre-existing injury or disease—occurred and resulted in the permanent and total

disability. He maintains this case "mirrors" Moran v. Board of Trustees, Police

& Firemen's Retirement System, 438 N.J. Super. 346 (App. Div. 2014), "in that

despite being trained and having restrained patients in the past[,] this incident

was unique due to the nature of the patient and the assault" because petitioner

"never had a patient who was this combative."

The Board counters there is sufficient evidence in the record "to support

the Board's decision that [petitioner] failed to show that his injury was the result

of a traumatic event" where the ALJ "found[] none of the [patient's] kicks were

targeted at [petitioner]; rather[,] [petitioner] was struck in the shoulder while the

patient was flailing about . . . ." The incident cannot be described as "undesigned

A-0809-23 9 and unexpected" because petitioner's injury occurred while he performed "his

regular duties in a normal fashion."

The Board argues petitioner's testimony confirmed that "restraining

unruly patients was part of his regular job duties, that he had restrained patients

hundreds of times . . . and that nobody referred to the incident as an 'assault,'

including [petitioner], until he submitted his disability application. " It argues

petitioner's claims differ from the examples provided by the Court in Richardson

because, while "the Court found them to be examples of accidents that could

occur during ordinary work efforts and would qualify for accidental disability

retirement benefits," here "[petitioner] was aware of the ongoing risk of being

hit inadvertently during his attempt to restrain the patient's legs."

N.J.S.A. 43:15A-43(a) provides accidental disability retirement benefits

may be obtained "if [an] 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." Our Supreme Court in Richardson clarified

the phrase "result of a traumatic event" applicable to N.J.S.A. 43:15A-43(a) by

providing a list of five elements a claimant seeking accidental disability

retirement benefits must satisfy. 192 N.J. at 212-13. The list includes:

1. that [the member] is permanently and totally disabled;

A-0809-23 10 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.

[Ibid.]

"Thus, a member who is injured as a direct result of an identifiable,

unanticipated mishap has satisfied the traumatic event standard." Id. at 213.

In Richardson, the petitioner, a corrections officer, was injured while

attempting to subdue an inmate. Id. at 214. He was knocked back during the

incident causing him to "fall . . . onto his left hand and hyper-extend his wrist."

Id. at 193. The petitioner filed for accidental disability retirement benefits, and

the Board denied the application because it determined "[the petitioner] did not

A-0809-23 11 suffer a traumatic event as required by the statute." Id. at 194. Similarly, "the

ALJ determined that the January incident did not constitute a traumatic event[]

because [the petitioner]'s response was part of the ordinary duties of a

corrections officer." Ibid. "The Board adopted that decision," and "the

Appellate Division affirmed, adding that, in its view, [the petitioner]'s injury

also did not satisfy the great-rush-of-force prong of the traumatic event

standard." Ibid.

The Supreme Court reversed, concluding the Board "misread[]" the statute

in determining that "subduing an inmate is part of the anticipated work of a

corrections officer and was not unexpected or unintended." Id. at 213. Instead,

the Court stressed the statute's requirement that the traumatic event "occur

'during and as a result of the performance of [the member's] regular or assigned

duties.'" Ibid. (alteration and emphasis in original). That is, a traumatic event

under the statute can occur during ordinary work effort, and the Court identified

the following 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 . . . undesigned and unexpected" and "[t]hus, each

A-0809-23 12 meets the traumatic event standard." 3 Id. at 214. The Court in Richardson noted

the "polestar" of the inquiry as being "whether, during the regular performance

of [the petitioner's] 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." Ibid. As discussed below,

the facts here are not materially different from Richardson.

Our case law has instructed that a member "who experiences a horrific

event which falls within his [or her] job description and for which he [or she]

has been trained will be unlikely to pass the 'undesigned and unexpected' test."

Russo, 206 N.J. at 33. Nonetheless,

Russo should not be construed to mean that the inquiry regarding whether an event is "undesigned and unexpected" is resolved merely by reviewing the member's job description and the scope of his or her training. In a given case, those considerations may

3 The Court discussed other situations to provide guidance. For example, "a police officer who has a heart attack while chasing a suspect has not experienced a traumatic event" where "work effort, alone in combination with pre-existing disease, was the cause of the injury." Id. at 213. Whereas "the same police officer, permanently and totally disabled during the chase because of a fall[] has suffered a traumatic event." Ibid. Likewise, "the gym teacher who develops arthritis from the repetitive effects of his work over the years has not suffered a traumatic event" as "[h]is disability is the result of degenerative disease and is not related to an event that is identifiable as to time and place." Ibid. "On the contrary, the same gym teacher who trips over a riser and is injured has satisfied the standard." Ibid.

A-0809-23 13 weigh strongly for or against an award of accidental disability benefits. To properly apply the Richardson standard, however, the Board and a reviewing court must carefully consider not only the member's job responsibilities and training, but all aspects of the event itself. No single factor governs the analysis.

[Mount v. Bd. of Trs., Police and Firemen's Ret. Sys., 233 N.J. 402, 427 (2018) (emphasis added).]

Applying these principles, we determine the Board erred in adopting the

ALJ's initial decision denying petitioner's application for accidental disability

retirement benefits. The ALJ took issue with petitioner's characterization of the

incident as an "assault" in his application for disability retirement, when he had

previously noted in the incident report that he "hurt [his] left shoulder"

attempting to restrain a patient. It appears this largely formed the basis for the

denial of petitioner's application. However, petitioner's testimony was

unrefuted, and the ALJ does not suggest his description of the altercation was

inaccurate.

Whether petitioner initially characterized the altercation as an assault is

not germane, as the ALJ accepted the testimony that the patient petitioner was

attempting to restrain was combative. Whether described as an assault or being

forcefully kicked while attempting to restrain a patient, petitioner's version of

the incident was analogous to the facts in Richardson. Moreover, the ALJ noted

A-0809-23 14 that petitioner "testified that the patient was kicking at all the personnel and that

he had not been a targeted victim of a specific attack." That petitioner had not

been a specific target of an attack does not mean the incident was not

"undesigned and unexpected."

We conclude the facts here are closely aligned with the facts in

Richardson, where the Supreme Court granted accidental disability benefits to a

corrections officer injured while attempting to handcuff a violent individual in

the course of his duties. 192 N.J. at 214-15. Petitioner here was likewise

attempting to restrain a combative patient during a fifteen-to-twenty-minute

struggle while being repeatedly kicked in the shoulder. The "uniqueness" of this

altercation for petitioner stemmed from the "extended period of time" needed to

restrain the patient and the "tenacity" with which the patient was fighting.

Because the Board erred in its application of the law to the factual

circumstances presented here, we reverse the Board's decision and remand for

the Board to grant petitioner's application and award petitioner accidental

disability retirement benefits.

Reversed and remanded for proceedings in accordance with this opinion.

We do not retain jurisdiction.

A-0809-23 15