SARAH DUSENBERY v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-4154-19
SARAH DUSENBERY,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
_________________________
Argued June 21, 2022 – Decided July 1, 2022
Before Judges Fisher, Vernoia and Firko.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. x-xx4461.
Donald C. Barbati argued the cause for appellant
(Crivelli & Barbati, LLC, attorneys; Donald C. Barbati,
on the briefs).
Thomas R. Hower, Staff Attorney, argued the cause for
respondent (Robert Seymour Garrison, Jr., Director of
Legal Affairs, PFRSNJ, attorney; Thomas R. Hower, on
the brief).
PER CURIAM
Sarah Dusenbery appeals from a final decision of the Board of Trustees
(the Board) of the Police and Firemen's Retirement System (PFRS),denying her
application for an accidental disability retirement pension and awarding her an
ordinary disability pension.1 The Board denied Dusenbery's application for an
accidental disability retirement pension based on its adoption of an
administrative law judge's (ALJ) finding Dusenbery's disability did not result
from a traumatic event that was "undesigned and unexpected" under the standard
established in Richardson v. Board of Trustees, Police & Fireman's Retirement
System, 192 N.J. 189 (2007). We reverse.
Dusenbery had been employed as a corrections officer by the Department
of Corrections for three years when, on August 6, 2016, she suffered injuries
during an incident with an inmate at South Woods State Prison (South Woods).
After removing an inmate from a cell she intended to search, Dusenbery
attempted to conduct a pat-down search of the inmate, first by requiring the
inmate to stand in front of her with his legs spread apart. As Dusenbery began
1
"[A]n accidental disability retirement entitles a member to receive a higher
level of benefits than those provided under an ordinary disability retirement. "
Thompson v. Bd. of Trustees, Teachers' Pension & Annuity Fund, 449 N.J.
Super. 478, 484 (App. Div. 2017), aff'd o.b., 233 N.J. 232 (2018) (quoting
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 43 (2008)).
A-4154-19
2
patting down the inmate, he started moving and Dusenbery ordered him to stop.
The inmate disregarded the orders and continued to move while Dusenbery
attempted to pat him down.
During Dusenbery's efforts to continue the pat down search, the inmate
elbowed Dusenbery in her right temple, causing her to fall to the ground.
Dusenbery immediately felt "searing pain" in her left hip and groin as her body
turned to the right as she fell. After struggling with the inmate for approximately
three minutes, Dusenbery subdued and handcuffed him. Other officers
responded and removed the inmate from the area.
Dusenbery was unable to stand after the incident due to weakness in her
left leg. She reported suffering from pain in her left knee, right foot, right
shoulder, and the right side of her head. She was assisted by another officer to
stand, escorted to the prison infirmary, and later brought to the hospital, where
x-rays were taken of her left hip and right shoulder.
One month later, Dusenbery's personal physician ordered MRIs of her
lumbar spine and left hip. The physician subsequently ordered an MR
arthrogram of her left hip. The doctor diagnosed Dusenbery with a ligament
sprain of the lumbar spine, a right shoulder joint sprain, pain in her right
shoulder and left hip, and trochanteric bursitis of the left hip.
A-4154-19
3
Dusenbery later underwent a functional capacity examination for the
purpose of determining whether she could continue to perform the requirements
of her employment as a corrections officer. Due to the medical issues related to
her hip and lower back, it was determined she was unable to perform all the
duties of a corrections officer. Dusenbery engaged in physical therapy and
sought treatment from another physician, but she was never medically cleared
to return to work.
Dusenbery filed an application with PFRS for an accidental disability
retirement pension. The application sought the pension based on the August 6,
2016 incident at South Woods Prison and also a January 4, 2015 incident at
Albert C. Wagner Correctional Facility (Wagner). The Board denied the
application, finding Dusenbery did not qualify for an accidental disability
retirement pension because she is "not totally and permanently disabled either
mentally or physically from the performance of her regular and assigned duties "
as a result of the two incidents. The Board also found Dusenbery ineligible for
an accidental disability pension because "the incident of January 4, 2015, is not
considered undesigned and unexpected."2
2
The Board did not make a similar finding concerning the August 6, 2016
incident.
A-4154-19
4
Dusenbery appealed from the denial, and the Board referred the matter to
the Office of Administrative Law for a hearing before an ALJ. Following a two-
day hearing, the ALJ issued an initial decision summarizing the evidence, noting
the parties' stipulation of certain facts, and making detailed findings of fact. The
parties stipulated that Dusenbery's initial application for an accidental disability
retirement pension was based on the August 6, 2016 incident at South Woods,
and the application was later amended to include the January 4, 2015 incident at
Wagner. The parties also stipulated that Dusenbery retired from her position as
a corrections officer in 2017.
Based on her review of the evidence, the ALJ found Dusenbery suffered
injuries to her left hip and lower back in a 2013 automobile accident. Dusenbery
was also involved in a 2016 automobile accident, but did not suffer any injuries.
Dusenbery completed the Department of Corrections training academy in
2013 and reported "it was 'the most physical thing [she had] ever done in [her]
life.'" After completing the academy, she became employed by the Department
of Corrections and was assigned to Wagner as a corrections officer.
The ALJ further found that on January 4, 2015, Dusenbery "was injured
when she attempted to open a heavy, metal utility closet door, as part of her
duties" at Wagner. The ALJ explained Dusenbery experienced a "sharp, burning
A-4154-19
5
pain" in her right bicep and right shoulder during the incident, and was examined
and treated at the hospital. Dusenbery underwent three months of physical
therapy, her injuries healed, and she returned to work in May 2015. The ALJ
concluded Dusenbery did not suffer a total and permanent disability as a result
of the January 4, 2015 incident. 3
Dusenbery was later transferred to South Woods where, on August 6,
2016, she was injured during the performance of duties as a corrections officer.
The ALJ found that during the search of cell, Dusenbery removed an inmate and
"began to pat search him." To conduct the pat down search, Dusenbery "had the
inmate stand in front of her with his legs spread," "[s]he placed her left leg in
between the inmate's legs," and she began patting down the inmate with her right
hand. The inmate began moving, and Dusenbery ordered the inmate to stop.
The inmate defied the orders and continued to move as Dusenbery attempted to
conduct the pat down search. The ALJ found the inmate "elbowed [Dusenbery]
in the right temple," and, as she and the inmate fell to the ground, Dusenbery's
3
We do not address the ALJ's determination, which was adopted by the Board
in its final decision, that Dusenbery did not suffer a total and permanent
disability as a result of the January 4, 2015 incident. Dusenbery does not
challenge that determination on appeal. See Drinker Biddle & Reath LLP v.
N.J. Dept. of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011)
(explaining an issue not addressed in a party's merits brief on appeal is deemed
abandoned).
A-4154-19
6
"left foot remained planted and her body turned to the right." The ALJ also
found Dusenbery immediately felt pain in her left hip and groin but, after a three-
minute struggle, she was able to restrain and handcuff the inmate.
The ALJ determined searching inmates was one of Dusenbery's "normal
job responsibilities," and "[p]hysically restraining" inmates is a duty required of
corrections officers. The ALJ further found Dusenbery was in contact
physically with the inmates on a daily basis, and she admitted a corrections
officer requires the ability to physically maintain control of inmates and defend
against assaults by inmates.
The ALJ also determined Dusenbery suffered injuries to her left leg and
hip, right arm and shoulder, and back. Based on the evidence and the testimony
of the parties' respective medical experts, the ALJ determined that, as a result of
Dusenbery's injuries, she "can no longer do her job duties and participate in
household and recreational activities." The ALJ concluded Dusenbery is
permanently and totally disabled from performing the duties of a corrections
officer as a result of the August 6, 2016 South Woods incident. 4 The ALJ
4
The ALJ made detailed findings supporting her conclusion Dusenbery is
totally and permanently disabled as a result of the August 6, 2016 incident. In
sum, the ALJ accepted the expert testimony of Dusenbery's expert concerning
the nature, extent, and causes of her disability, and rejected as not credible the
A-4154-19
7
further found Dusenbery's disability is not the result of her willful negligence
and the traumatic incident that caused her disability occurred during the
performance of her regular or assigned duties, is identifiable as to time and
place, and was caused by a circumstance external to Dusenbery.
The ALJ determined Dusenbery is not entitled to an accidental disability
retirement pension based on a single finding—that the August 6, 2016
"traumatic event" that caused the disability "was not undesigned and
unexpected." The ALJ found the incident was not undesigned and unexpected
because the corrections officer job description required that Dusenbery
physically restrain and interact with inmates, and Dusenbery testified the
academy training was "physically grueling" and a corrections officer's "job is
physical." The ALJ further based her conclusion on evidence Dusenbery "was
specifically trained how to physically and verbally conduct the search of an
inmate," and she used the techniques she was taught "to pat search the inmate."
The ALJ further reasoned the August 6, 2016 incident was not undesigned
and unexpected because "whether [Dusenbery] anticipated that she would be
testimony of PFRS's expert. It is unnecessary to address the conflicting
testimony, or the ALJ's analysis of it, because the Board accepts the ALJ's
determination Dusenbery is totally and permanently disabled, and it awarded her
an ordinary disability retirement pension on that basis.
A-4154-19
8
assaulted by [the] inmate during the search is not dispositive," and Dusenbery
"could certainly [have] anticipated that an inmate would become physically
combative during such a search." The ALJ found a corrections officer "is
required to physically engage with inmates, who may be combative," and
therefore nothing that occurred during the incident "was extraordinary or
unexpected."
The ALJ concluded Dusenbery is not entitled to an accidental disability
retirement pension. Dusenbery and PFRS filed exceptions to the ALJ's decision
and recommendation.
In its final decision, the Board adopted the ALJ's findings, and denied
Dusenbery's application for an accidental disability retirement pension. The
Board found Dusenbery is entitled to an ordinary disability retirement pension
because she "is considered totally and permanently disabled." This appeal
followed.
"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 an "administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For those reasons, "an
appellate court ordinarily should not disturb an administrative agency's
A-4154-19
9
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.
Voorhees 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 administrative action." In re Arenas, 385 N.J.
Super. 440, 443-44 (App. Div. 2006).
"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), overruled on other grounds by Maynard v. Bd. of Trs., Teachers' Pension &
Annuity Fund, 113 N.J. 169 (1988). We review de novo "an agency's interpretation
of a statute or case law." Russo, 206 N.J. at 27.
N.J.S.A. 43:16A-7(a)(1) authorizes an award of an accidental disability
pension to a PFRS member provided
the medical board, after a medical examination of such
member, [certifies] 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
A-4154-19
10
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.
[N.J.S.A. 43:16A-7(a)(1).]
In Richardson, the Court explained that to establish an entitlement to
accidental disability retirement benefits under N.J.S.A. 43:16A-7(a)(1), a
claimant must prove:
1. that [s]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 [or her] usual or any
other duty.
[192 N.J. at 212-13.]
A-4154-19
11
Pertinent here is the requirement that an applicant prove the permanent
disability is the result of a traumatic event that is "undesigned and unexpected."
See ibid. That is because the Board, through its adoption of the ALJ's findings,
determined Dusenbery sustained her burden of proving each of the other
elements necessary for an entitlement to accidental disability benefits, and it
denied her accidental disability benefits solely based on a finding she failed to
prove the event the traumatic event that caused her permanent disability was
undesigned and unexpected.
In Richardson, the PFRS member was a corrections officer who suffered
a permanent disability during a scuffle with an inmate who resisted being
handcuffed. Id. at 193. As the officer reached for his handcuffs, the inmate
"forcefully jerked up from the ground, knocking [the officer] backward,"
causing the officer "to fall back onto his left hand and hyper-extend his wrist."
Ibid. The Court determined the officer's injury satisfied the standard for an
accidental disability retirement pension because, "[w]hile performing the
regular tasks of his job as a corrections officer, subduing an inmate, [he] was
thrown to the floor and hyperextended his wrist." Id. at 214. The wrist injury
resulted in a total and permanent disability.
A-4154-19
12
Here, the pertinent facts are identical to those presented in Richardson.
During the performance of her duties, Dusenbery attempted to conduct a pat
down search of an inmate, who resisted and struck her in the head with his elbow
causing her to fall and suffer injuries that resulted in her total and permanent
disability. In finding the incident was not undesigned and expected, the ALJ
ignored the Court's holding in Richardson.
The ALJ found the traumatic event that resulted in Dusenbery's disability
was not undesigned and unexpected because a correction officer's regular duties
include searching inmates and physically restraining inmates and, as a result,
there is nothing undesigned or unexpected about scuffling with a defiant inmate
and suffering injuries. In Richardson, the Board relied on the same reasoning
employed by the ALJ here, and the Court rejected it. See id. at 213-215.
The Court explained the Board contended "that because subduing an
inmate is part of the anticipated work of a corrections officer and was not
unexpected or unintended, Richardson could not satisfy the traumatic event
standard." Id. at 213. The Court determined the Board's reasoning, which the
ALJ employed here to deny Dusenbery's application for an accidental disability
pension, is founded on "a misreading of the statute, which requires that the
traumatic event occur 'during and as a result of the performance of [the
A-4154-19
13
member's] regular or assigned duties.'" Id. at 213 (quoting N.J.S.A. 43:16A-
7(a)(1)).
The Court further explained that "the fact that a member is injured while
performing his [or her] ordinary duties does not disqualify him [or her] from
receiving accidental disability benefits; some injuries sustained during ordinary
work effort will pass muster and others will not." Id. at 214. The Court observed
that a policeman "shot while pursuing a subject," satisfies the undesigned and
unexpected standard, and, as noted, the Court held that an officer who suffers a
permanent disability when accosted by a resisting inmate satisfies the standard
as well. Ibid. The Court held that the determinative "inquiry is whether, during
the regular performance of his [or her] 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.The ALJ and the Board did not apply the correct legal standard in denying
Dusenbery's application for an accidental disability retirement pension.
Contrary to the ALJ's conclusion, Dusenbery did not fail to satisfy the
undesigned and unexpected standard because she was injured during the regular
performance of her duties in searching the inmate. Like the officer in
A-4154-19
14
Richardson, Dusenbery suffered her disability because she "was thrown to the
floor" as the result on an assault by a defiant and assaultive inmate. Id. at 214.
She did not suffer her disability as "the result of pre-existing disease alone or in
combination with the work"; she suffered her injuries by being launched onto
the ground by the inmate's assault to her head. Under the Richardson standard,
she established the August 6, 2016 incident was undesigned and unexpected.
In sum, the ALJ's legal conclusion, which the Board adopted, that the
traumatic event resulting in Dusenbery's disability was undesigned and
unexpected ignores the Court's holding in Richardson and misapplies the
applicable legal standard. We therefore reverse the Board's final decision
denying Dusenbery's application for an accidental disability retirement pension.
See In re Virtua-West Jersey Hosp., 194 N.J. at 422 (explaining a reviewing court
will reverse a final agency decision based on a misapplication of the law).
Reversed.
A-4154-19
15