ADAM TOOPS VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1611-16T1
ADAM TOOPS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,
Respondent-Respondent.
________________________________
Argued April 19, 2018 – Decided July 18, 2018
Judges Simonelli, Haas and Gooden Brown.
On appeal from the Board of Trustees, Police
and Firemen's Retirement System, Docket No.
3-10-049816.
Patrick P. Toscano, Jr., argued the cause for
appellant (The Toscano Law Firm, LLC,
attorneys; Patrick P. Toscano, Jr., on the
brief).
Robert S. Garrison, Jr., Deputy Attorney
General, argued the cause for respondent
(Gurbir S. Grewal, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Robert S. Garrison, Jr., on the
brief).
PER CURIAM
Adam Toops appeals from a December 6, 2016 final decision of
the Board of Trustees of the Police and Firemen's Retirement System
(Board), denying his application for accidental disability
retirement benefits. In so doing, the Board adopted the factual
findings of the Administrative Law Judge (ALJ) establishing that
Toops suffered disabling injuries in a 2009 incident, but rejected
the ALJ's legal conclusion that Toops' disability was due to a
traumatic event within the meaning of N.J.S.A. 43:16A-7. Because
we agree with the Board, we affirm.
As background, N.J.S.A. 43:16A-7(1) authorizes an award of
accidental disability benefits to a Police and Firemen's
Retirement System (PFRS) member provided 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.
In Richardson v. Board of Trustees, Police and Firemen's
Retirement System, 192 N.J. 189 (2007), the Court clarified the
meaning of the term "traumatic event," and set forth a five-pronged
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standard mandating that a pension system member seeking accidental
disability benefits 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.
[Id. at 212-13.]
In November 2013, Toops, then a police officer, applied for
accidental disability retirement benefits based on injuries he
sustained on July 22, 2009, while "climbing over fences and
structures[,]" "searching for armed robbers" in the area. In the
application, Toops stated that while "attempting to climb over
[the] last fence[,]" his "right arm went numb" and he "had severe
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pain." Toops later sought medical treatment, was diagnosed with
a cervical disc herniation at C5-C6 with radiculopathy, and
underwent epidural injections and surgeries, resulting in a
permanent orthopedic disability.
On December 9, 2014, the Board denied Toops' application for
accidental disability benefits based on the July 22, 2009 incident
and an unrelated January 18, 2011 incident.1 Initially, the Board
found "no evidence" of Toops' involvement in a July 22, 2009
incident. The Board then determined that although Toops
established some of the necessary elements under Richardson for
accidental disability benefits in connection with the January 18,
2011 incident, Toops was eligible for ordinary disability benefits
only because "the medical documentation provided indicate[d] that
his disability [was] the result of a pre-existing disease alone
or a pre-existing disease that [was] aggravated or accelerated by
the work effort." Toops filed an administrative appeal and the
matter was transmitted to the Office of Administrative Law (OAL)
as a contested case.
During the OAL hearing conducted on November 30, 2015, Toops
testified that he had been employed by the Montclair Police
1
The January 18, 2011 incident involved Toops slipping and falling
on ice in the parking lot of the Montclair Police Department. He
sustained injuries to his neck, right shoulder blade, and right
arm.
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Department for approximately fourteen years, beginning in 2000.
He spent the first thirteen years as a patrol officer and then was
promoted to a detective. At approximately 3:00 p.m. on July 22,
2009, while wearing courtroom attire rather than tactical
clothing,2 Toops was directed along with all other officers to
assist West Orange police in apprehending armed robbery suspects
who fled into their jurisdiction. Toops responded with another
detective, James Milano. Once at the scene, Toops was provided a
bullet-proof vest and began canvassing the area.
The radio transmissions led Toops and Milano through
backyards, climbing approximately thirty fences in search of the
suspects. When Toops attempted to climb one fence in particular,
which he described as a six-foot chain link fence, he "slipped on
it several times trying to follow [Milano]." Toops eventually
navigated over the fence by using his body, shoulder, and neck.
However, once he got over the fence, he experienced "extreme pain"
in his arm and explained to Milano that, due to the pain, he could
not continue the search. At that point, Toops returned to
headquarters and sought medical treatment for his injuries a few
weeks later. Although Toops did not initially submit an injury
2
Toops testified that he was not in uniform and was wearing
normal dress shoes.
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report,3 Milano submitted a report to the department and to the
Board, confirming Toops' account.
At the hearing, the parties stipulated to Toops being 75%
disabled. The parties also stipulated to the contents of a January
2014 e-mail sent to the Division of Pensions by Captain Scott
Roberson, in his capacity as the head of the Montclair Police
Department's Internal Affairs, discrediting Toops' account. The
email indicated that contrary to departmental procedures, there
were no incident or injury reports evidencing Toops' involvement
in or sustaining an injury as a result of the pursuit.
On cross-examination, Toops explained that his name did not
specifically appear in the incident report because the entire
Detective Bureau responded, and his injury report was ultimately
filed internally within the Detective Bureau, not with Roberson.
Toops testified further that Roberson did not respond to the scene
at the time in question and was biased against him because he
disregarded Roberson's directive not to file a workers'
compensation claim for the injury. Toops explained that he had
to file a workers' compensation claim because his private insurance
would not cover surgeries for work-related injuries. In addition,
3
Toops explained that he did not submit an injury report because
he initially believed the pain stemmed from an unrelated prior
injury.
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Toops was cross-examined on other injuries he had sustained while
he was a police officer, including the January 18, 2011 incident
and a November 29, 2001 injury he sustained in a house fire, for
which he submitted an application for disability retirement
benefits in January 2005 that was later withdrawn.
In his initial decision issued on January 4, 2016, the ALJ
found Toops' testimony to be "extremely credible and consistent
with other supporting documentation, including Milano's submission
to the . . . Board[.]" The ALJ rejected Roberson's account as
"not credible" and "not based on any first-hand knowledge of
whether Toops was involved in the incident of July 22, 2009."
Thus, the ALJ found "strong evidence in the record" that Toops
"suffered an injury while performing a canvas . . . in response
to a call for assistance . . . as part of his duties, which left
him disabled."
Next, relying on Moran v. Board of Trustees, Police and
Firemen's Retirement System, 438 N.J. Super. 346, 354 (App. Div.
2014) and Brooks v. Board of Trustees Public Employees Retirement
System, 425 N.J. Super. 277 (2012), the ALJ determined that "there
was clearly an accident or external event, . . . which caused the
injury to [Toops]." The ALJ explained that Toops sustained the
injury "while and from performing exactly the task he undertook
and intended to perform: searching an area for suspects of an
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armed robbery." According to the ALJ, "[w]hile the injury was
certainly an unanticipated consequence, it appears to be an
unanticipated consequence of strenuous work activity" and was the
result of an accidental occurrence. Citing Richardson, the ALJ
concluded that because "the incident of July 22, 2009, which caused
[Toops'] disability . . . was undesigned and unexpected[,]" Toops
"met his burden in demonstrating eligibility for accidental
disability retirement benefits." Accordingly, the ALJ recommended
reversing the Board's denial and awarding Toops accidental
disability retirement benefits.
PFRS filed exceptions and the Board remanded the matter to
the ALJ for additional fact-finding. Specifically, the Board
found the ALJ's credibility determination of Roberson to be
"flawed" because the ALJ never heard Roberson's testimony, despite
his availability. In addition, the Board remanded for "medical
testimony on behalf of Toops to establish and allocate causation
of disability related to the July 22, 2009, incident."
On June 21, 2016, the ALJ conducted a second hearing during
which Roberson testified via Skype without objection. Roberson
stated that based on the paperwork he had in his possession, there
was no documentation that showed Toops was injured in the July
2009 incident, contrary to departmental protocol requiring the
submission of an injury report within twenty-four hours of
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sustaining an injury. He admitted, however, that Toops was not
under his command, and that he was aware that Milano had witnessed
the injury and that Toops had filed a workers' compensation claim
as a result of the 2009 incident.
On November 2, 2016, the ALJ issued an initial decision on
the remand, finding that because "Roberson's testimony was based
solely on the documentation which 'should' have been submitted,"
rather than "first-hand knowledge[,]" it "did not provide any
tangible light on whether the event of July 22, 2009 happened."
"[L]eft with the credible testimony of Toops, supported by Milano's
documentation[,]" the ALJ reiterated his prior findings and
determined that "the conclusion made in the previous [i]nitial
[d]ecision regarding the fact that the incident did occur . . .
remain[ed] unchanged." As to the medical testimony, the ALJ noted
that PFRS conceded that if the Independent Medical Examiner were
to testify, he would confirm that Toops was 75% disabled as a
result of the July 22, 2009 incident, thereby obviating the need
for medical testimony.
On December 6, 2016, after considering the ALJ's November 2,
2016 initial decision as well as the exceptions filed by the
parties, the Board adopted the ALJ's factual findings that the
July 2009 incident occurred and that 75% of Toops' total and
permanent disability was directly attributable to the 2009
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incident. However, the Board rejected the ALJ's legal conclusion
"that the incident was undesigned and unexpected" and determined
that Toops was not entitled to accidental disability retirement
benefits under the criteria established in Richardson. The Board
explained that "the work activity itself was not undesigned or
unexpected, but was in fact strenuous work effort similar to
Cattani [v. Board of Trustees, Police and Firemen's Retirement
System, 69 N.J. 578 (1976)] and did not include an external event."
The Board elaborated further that
Toops was performing his normal job duties by
climbing a six-foot-tall fence in search of a
suspect when he suddenly felt pain in his
neck, right shoulder and body. Pursuing
suspects was a core duty of his employment,
and one that is included within the job
description for a police officer. . . .
Similar to [Cattani] dragging hoses that were
too heavy for him, . . . Toops was over
exerting himself while he was attempting to
climb the fence. As a result of his physical
exertions, he was injured performing the
ordinary duties of his employment and is not
eligible for [a]ccidental disability
retirement [benefits].
This appeal followed.
On appeal, Toops argues that the "Board acted arbitrarily,
capriciously, and unreasonably in concluding that Toops' July 22,
2009 incident was not 'undesigned and unexpected'" under
Richardson. Specifically, Toops asserts "the Board ignored
critical facts of record in concluding that 'Toops was engaged in
10 A-1611-16T1
the normal work effort of climbing a fence' when he was injured[,]"
and "misinterpreted the meaning of 'undesigned and unexpected'"
in "characteriz[ing] Toops' work activity on July 22, 2009 as
ordinary strenuous work effort." According to Toops, as a
detective, it was "not part of his ordinary or daily job duties
to participate in manhunts or suspect chases or to scale . . .
fences." Toops argues that the Board's reliance on Cattani "was
seriously misplaced" as "[t]his case is more like Moran . . . ."
We disagree.
"Our review of administrative agency action is limited."
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,
27 (2011). Reviewing courts presume the validity of the
"administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014)
(citation omitted). For those reasons, "an appellate court
ordinarily should not disturb an administrative agency's
determinations or findings unless there is 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-West Jersey
Hosp. for a Certificate of Need, 194 N.J. 413, 422 (2008). "The
burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the
11 A-1611-16T1
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44
(App. Div. 2006) (citations omitted).
"[T]he test is not whether an appellate court would come to
the same conclusion if the original determination was its to make,
but rather whether the factfinder could reasonably so conclude
upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)
(quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App.
Div. 1985)). "Where . . . the determination is founded upon
sufficient credible evidence seen from the totality of the record
and on that record findings have been made and conclusions reached
involving agency expertise, the agency decision should be
sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J.
174, 189 (1980) (citation omitted). That said, appellate courts
review de novo an agency's interpretation of a statute or case
law. Russo, 206 N.J. at 27.
Toops challenges the Board's rejection of the ALJ's
determination that he was entitled to accidental disability
retirement benefits. Indeed, an agency's authority to reject and
modify an ALJ's initial decision is limited. Specifically,
pursuant to N.J.A.C. 1:1-18.6(b),
[t]he order or final decision rejecting or
modifying the initial decision shall state in
clear and sufficient detail the nature of the
rejection or modification, the reasons for it,
the specific evidence at hearing and
12 A-1611-16T1
interpretation of law upon which it is based
and precise changes in result or disposition
caused by the rejection or modification.
We are satisfied, however, that the Board comported with this
legal mandate in its December 6, 2016 decision rejecting the ALJ's
legal conclusion, and correctly determined that Toops' disability
was not the direct result of a traumatic event that was undesigned
or unexpected as contemplated in Richardson, but instead the result
of strenuous work effort similar to Cattani.
In Richardson, the Court explained, that 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." 192 N.J. at 212. "In
ordinary parlance, an accident may be found either in an unintended
external event or . . . an unanticipated consequence of an
intended external event if that consequence is extraordinary or
unusual in common experience." Id. at 201 (quoting Russo, 62 N.J.
at 154). The Court described "[t]he polestar of the inquiry" as
"whether, during the regular performance of [one's] job, an
unexpected happening, not the result of pre-existing disease alone
or in combination with the work, . . . occurred and directly
resulted in the permanent and total disability of the member."
Id. at 214.
13 A-1611-16T1
In Cattani, the Court reiterated its prior determination that
a "'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. The Court concluded that where the disability was
the end result of a pre-existing medical condition, "work effort
alone whether unusual or excessive, cannot be considered a
traumatic event, even though it may have aggravated or accelerated
the pre-existing disease." Ibid.There, Cattani, a firefighter, responded to a fire, removed
five lengths of heavy hoses from the engine, and dragged the hoses
into place in order to extinguish the fire. Id. at 580-81. At
the time, the fire department was undermanned and required those
on duty to perform additional firefighting duties. Ibid. After
the fire was extinguished, Cattani returned to the firehouse and
became temporarily paralyzed in his arms and legs. Id. at 581.
Ten days later, he began having recurring episodes and was
diagnosed with a basilar artery occlusion secondary to a pre-
existing condition of atherosclerosis and hyperlidemia. Ibid.Cattani filed for accidental disability retirement benefits.
Id. at 582. The medical proofs demonstrated that his underlying
disease was aggravated by the added strain and effort exerted
during the event in question. Ibid. The Board determined that
14 A-1611-16T1
Cattani had not experienced a traumatic event and that his
condition was the result of his pre-existing disease. Id. at 583.
We reversed on the ground that the unusual and excessive work
effort itself was the traumatic event. Ibid. The Supreme Court
reversed our decision and reinstated the Board's decision,
reasoning that the aggravation of pre-existing disease by any kind
of work effort, usual or unusual, was not a traumatic event within
the meaning of the statute. Id. at 586.
Here, we agree with the Board that, like Cattani, scaling
fences while searching for suspects was clearly within the realm
of Toops' duties as a police officer, notwithstanding the fact
that he had been promoted to detective. He presented no evidence
that this search was unusual or outside the scope of his
employment, only that as a detective he was dressed in courtroom
attire rather than tactical clothing. He also failed to show that
his injury occurred due to some external event other than his
strenuous work effort. The fence did not collapse or exhibit any
type of defect, but rather, through Toops' own physical exertion
of trying to lift himself over the fence, he sustained a permanent
and disabling injury. We agree with the Board that sustaining an
injury under these circumstances was not intended by the
Legislature to be considered a traumatic event, entitling Toops
to accidental disability retirement benefits.
15 A-1611-16T1
Toops' reliance on Moran is misplaced. In Moran, we found
an undesigned and unexpected event where a "combination of unusual
circumstances . . . led to [the member's] injury[.]" 438 N.J.
Super. at 354. Moran, a firefighter, was responding to a report
of a fire in a vacant residence. Id. at 350. Moran was part of
the "engine company," the unit responsible for transporting fire
hoses into buildings to extinguish fires, not rescue victims. Id.
at 349. A separate unit, the "truck company," was responsible for
forcing entry into a burning structure and rescuing any occupants
therein. Ibid. Moran's unit arrived at the scene before the
truck company and discovered victims trapped inside the burning
building. Id. at 350. Because they expected the building to be
vacant, Moran's unit did not have the equipment necessary to break
into the building. Ibid. As a result, Moran had to use his body
to break down the door and rescue the victims, sustaining a
disabling injury in the process. Ibid.
The Board denied Moran's application for accidental
disability retirement benefits because his injury "occurred while
he was conducting one of his expected work-related duties, rescuing
fire victims." Id. at 353. The Board also concluded the incident
was not an accident because Moran intentionally threw his body
against the door. Ibid. We reversed the Board. Ibid. Although
Moran did not suffer a "classic 'accident' in the sense that the
16 A-1611-16T1
house did not collapse on Moran, nor did he trip while carrying a
fire hose," we found "the combination of unusual circumstances
that led to Moran's injury" was an undesigned and unexpected event.
Id. at 354. The fact that Moran intentionally broke down the door
did not disqualify him from accidental disability retirement
benefits because his injury was the result of "an event, or series
of events, 'external' to [him]." Ibid. (quoting Richardson, 192
N.J. at 212-13).
The circumstances presented here are clearly distinguishable
from Moran, where the member "encountered an unexpected life-and-
death emergency for which he was carrying no tools[,]" requiring
him to "forc[e] entry with his body," resulting in him suffering
a disabling injury. Id. at 350-51. On the contrary, as a police
officer, Toops' training and responsibilities undoubtedly
encompassed engaging in foot pursuits for suspects. We therefore
affirm substantially for the reasons articulated in the Board's
December 6, 2016 decision.
Affirmed.
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