Milton Perkins v. Board of Trustees, Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3350-21
MILTON PERKINS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________
Submitted October 30, 2023 – Decided January 10, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of
Treasury, PERS No. xx9049.
Nancy Ann Valentino, attorney for appellant.
Matthew J. Platkin, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Matthew C. Melton, Deputy
Attorney General, on the brief).
PER CURIAM
Milton Perkins appeals from a May 19, 2022 final agency decision by
the Board of Trustees (Board) of the Public Employees' Retirement System
(PERS) finding him ineligible for accidental disability retirement (ADR)
benefits. We affirm.
I.
Perkins was employed as a sheriff's officer for the Cumberland County
Sheriff's Department for nearly fifteen years. On December 18, 2017, Perkins
injured his leg during an annual training class on the use of the monadnock
expandable baton (MEB). The purpose of the class was to teach different
techniques on the use of the expandable baton that included strikes, blocks,
and different maneuvers.
Perkins was transported to the hospital. He was admitted to the
emergency room at 8:25 p.m. and discharged at 3:15 a.m. on December 19,
2017. The emergency department records show Perkins "[r]eport[ed] right calf
pain," that "started acutely yesterday while training." There was "[n]o direct
trauma, but pain [was] moderate and exacerbated by weight bearing." Perkins
further reported that he worked for the "sheriff['s] department and was doing
hand-to-hand combat training. He had his [right] leg extended and felt a pop
in his [right] calf as he was holding his attacker back." Perkins had a torn
right gastrocnemius tendon and was eventually diagnosed with a blood clot in
A-3350-21
2
the leg, which turned into an untreatable blockage and led to two pulmonary
embolisms in the left lung.
In a department incident report prepared two days later, Officer
Giacomelli stated he asked Perkins what happened. According to the report,
Perkins stated that he "[thought] he hit himself in the back of the calf with the
plastic training baton. He heard a 'pop' in the back of his leg when he planted
his foot on the ground during the exercise."
On May 5, 2019, Perkins filed for ADR benefits, claiming he suffered a
work-related injury during the MEB training. Perkins stated he was "engaged
in an expandable baton training exercise" and the "baton suddenly bounced off
the trainer[']s suit and came back towards me." He, however, asserted for the
first time that the "baton struck [him] near [his] right knee and [he] heard a
popping sound" and was "unable to place any pressure on [his] right leg after
the incident." Perkins stated he had a "torn gastroc (sic) which caused [a blood
clot] and other related pulmonary issues including an embolism."
At the Board's September 16, 2020 meeting, the Board denied Perkins's
application for ADR benefits. While the Board determined Perkins was
"totally and permanently disabled from the performance of his regular or
assigned work duties per N.J.S.A. 43:15A-43 and relevant case law," it found
the "incident was not undesigned and unexpected and therefore [did] not
A-3350-21
3
qualify as a traumatic event that would entitle [him] to [accidental disability]."
The Board noted that Perkins's description of the incident in his disability
application was inconsistent with the emergency room records and Officer
Giacomelli's incident report. The Board found the event that caused the
"alleged disability was identifiable as to time and place"; "occurred during and
as a result of Perkins's regular or assigned duties;" the event was "not the
result of Perkins's willful negligence;" and the course of events that transpired
during the incident was "indeterminate due to conflicting evidence in the
record." The Board, nevertheless, determined the incident was "not
undesigned and unexpected." Instead, the Board awarded him ordinary
disability retirement benefits. Perkins appealed, and the matter was transferred
to the Office of Administrative Law (OAL) for a hearing as a contested case.
The administrative law judge (ALJ) conducted a hearing on October 26,
2021. Officer Jesus Nieves testified that he was certified as a MEB instructor
at the time of the incident. According to Nieves, this was the first time that he
put on the "red suit" during the training class. He described the red suit as "a
foam padded suit that cover[ed] [him] from head to toe." He explained that
Perkins performed a "low strike on his leg area." When Perkins struck Nieves
with the baton, it "kicked back," ricocheted off him, "and hit Perkins in his
lower calf muscle area of his right leg area causing him to grunt in pain."
A-3350-21
4
Perkins "immediately stopped" and was instructed to sit down. Nieves stated
that Perkins never dropped or lost his grip on the baton after he hit the red suit .
Nor had he ever seen the baton "snap back" and strike the person engaging in
the exercise.
At the OAL hearing, Perkins testified that Nieves was wearing a
protective suit made of "some type of foam," referred to as the "red man suit."
Perkins "hit the red man suit, [] swung down, and hit [Nieves] on his . . . left
leg." The baton then "bounced back immediately and hit [Perkins] on [his]
right leg" when he was in the process of stepping back. He heard a "pop," and
when he planted his right foot, he realized it could not bear any weight.
The Board did not present any witnesses.
On March 23, 2022, the ALJ issued an initial decision reversing the
Board's denial and recommending approval of Perkins's ADR. Relying on
Richardson v. Bd. of Trs. Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13
(2007), the ALJ concluded Perkins had met his burden of demonstrating that
his disability was the direct result of an undesigned and unexpected traumatic
event. The ALJ determined that the Board's reliance on the emergency room
records and the reporting officer's incident report was improper because those
records were hearsay and could not "form the basis of a decision without a
residuum of other competent, non-hearsay evidence."
A-3350-21
5
The ALJ found Perkins's facts were similar to Moran v. Bd. of Trs.
Police & Firemen's Ret. Sys., 438 N.J. Super. 346, 348 (App. Div. 2014). The
ALJ found "there was a combination of unusual circumstances and they led to
[Perkins's] injury." The ALJ explained that the "[a]nnual baton training [was]
not out of the ordinary[;] however, usage of a training baton in conjunction
with the red suit was." The ALJ concluded "when [Perkins] hit the suit with
the training baton, the baton ricocheted or bounced off the suit[,] which was an
unexpected external force causing injury to [Perkins]."
On May 19, 2022, the Board rejected the ALJ's recommendation and
issued a final administrative determination, reaffirming its denial of Perkins's
application for ADR benefits. In rendering its decision, the Board found that
the ALJ improperly dismissed the emergency room records and Giacomelli's
report concerning the accident as hearsay. The Board reasoned that those
records were admissible and created inconsistencies concerning the accident.
The Board decided that the "use of the suit was not an 'unusual circumstance'"
since both Perkins and Nieves "were familiar with the red man suit on the day
of the 2017 incident." The Board likewise rejected the ALJ's finding that the
suit was "designed" to absorb a blow from a baton rather than repel it , citing a
lack of evidence as to its intended design. Regarding the factual
inconsistencies, the Board reasoned that "under either scenario advanced by
A-3350-21
6
[Perkins], the incident was not undesigned and unexpected and therefore does
not qualify as a traumatic event."
On appeal, Perkins argues the Board erred by: (1) rejecting the ALJ's
finding that the injury was the result of a traumatic event that was undesigned
and unexpected; (2) rejecting the ALJ's decision and finding that Perkins' s
disability was not a combination of unusual circumstances; and (3) considering
the hearsay evidence.
II.
Our "review of a pension board's decision in the fact sensitive matter of
disability retirement benefits is limited." Rooth v. Bd. of Trs., Pub. Emps.'
Ret. Sys., 472 N.J. Super. 357, 364 (App. Div. 2022) (citing Allstars Auto
Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018)). An
agency's action on the merits will be sustained unless that action is arbitrary,
capricious, or unreasonable. In re State & Sch. Emps.' Health Benefits
Comm'ns' Implementation of Yucht, 233 N.J. 267, 279 (2018).
However, an appellate court is not bound by an agency's interpretation of
a statute or its determination of a strictly legal issue outside its charge.
Allstars Auto Grp., Inc., 234 N.J. at 158. Nevertheless, decisions "made by an
administrative agency entrusted to apply and enforce a statutory scheme" are
reviewed "under an enhanced deferential standard." E. Bay Drywall, LLC v.
A-3350-21
7
Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493 (2022). "Such deference
has been specifically extended to state agencies that administer pension
statutes[,]" because "'a state agency brings experience and specialized
knowledge to its task of administering and regulating a legislative enactment
within its field of expertise.'" Piatt v. Police & Firemen's Ret. Sys., 443 N.J.
Super. 80, 99 (App. Div. 2015) (quoting In re Election L. Enf't Comm'n
Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)).
On appeal, the judicial role in reviewing all administrative action is
generally limited to three inquiries:
(1) whether the agency's action violates express or implied
legislative policies, that is, did the agency follow the law; (2)
whether the record contains substantial evidence to support the
findings on which the agency based its action; and (3) 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.
[Allstars Auto Grp., Inc., 234 N.J. at 157 (quoting In re Stallworth,
208 N.J. 182, 194 (2011)).]
PERS provides for both ordinary, N.J.S.A. 43:15A-42, and accidental,
N.J.S.A. 43:15A-46, disability retirement benefits. The principal difference
between ordinary and accidental disability retirement "is that ordinary
disability retirement need not have a work connection." Patterson v. Bd. of
Trs., State Police Ret. Sys., 194 N.J. 29, 42 (2008). Accidental disability
retirees receive significantly greater benefits than those provided to ordinary
A-3350-21
8
disability retirees. Id. at 43 (citing Richardson, 192 N.J. at 193). Thus, an
applicant for disability retirement benefits must show that he or she retired
"due to a total and permanent disability that renders the applicant physically or
mentally incapacitated from performing normal or assigned job duties at the
time the member left employment." N.J.A.C. 17:1-6.4(a); Richardson, 192
N.J. at 212.
Here, it is undisputed that Perkins had become disabled as a result of his
training exercise, resulting in the award of ordinary disability retirement
benefits. At issue is whether Perkins's disability was the result of a traumatic
event. He argues, as he did before the ALJ, that he "suffered an injury that was
undesigned and unexpected." Further, he contends the Board erred in
determining his injury was undesigned and unexpected, comparing his injury
to Moran. We disagree. In Moran, a firefighter injured himself kicking down
a door of a burning building while attempting to rescue those inside. 438 N.J.
Super. 346 at 349-50. We concluded the firefighter's injury was caused by an
undesigned and unexpected event because he faced unusual circumstances,
including the presence of victims inside the burning building, the "truck
company's" delay, and the lack of equipment to break down the door. Id. at
354.
A-3350-21
9
We agree with the Board that the "facts in Moran are inapposite to those
presented here." Unlike in Moran, Perkins's injury occurred in a controlled,
simulated training exercise. In striking Nieves with a baton, Perkins was
"doing exactly what he intended to do," training in the execution of strikes and
blocks with the expandable baton. Given the physical nature of the simulated
training exercise, it is not extraordinary or unforeseeable for an injury to occur.
We also agree with the Board that "under either scenario advanced by []
Perkins, the incident was not undesigned and unexpected." The Board
appropriately applied the traumatic event standard established in Richardson,
and its finding that there was no "combination of unusual circumstances" is
supported by the record. Thus, the Board's decision to deny Perkins's
application for accidental disability retirement benefits was not arbitrary,
capricious, or unreasonable.
We reach a different result regarding the Board's consideration and
additional findings of fact concerning the hospital discharge report and
Giacomelli's incident report. Perkins argues that the Board erred in making
additional findings of fact based upon hearsay evidence consisting of those
reports when the ALJ accorded the evidence little to no weight. We agree.
Parties in administrative proceedings are "not . . . bound by rules of
evidence," N.J.S.A. 52:14B-10(a)(1), and hearsay evidence "shall be accorded
A-3350-21
10
whatever weight the judge deems appropriate," N.J.A.C. 1:1-15.5(a). The
residuum rule provides: "Notwithstanding the admissibility of hearsay
evidence, some legally competent evidence must exist to support each ultimate
finding of fact to an extent sufficient to provide assurances of reliability and to
avoid the fact or appearance of arbitrariness." N.J.A.C. 1:1-15.5(b).
Here, there was no residuum of legal and competent evidence in the
record supporting the hearsay conclusions in the discharge records or the
incident report. There was no testimony provided that gave probative support
to the discharge or incident reports. The ALJ concluded that those documents
"[could not] form the basis of a decision without a residuum of other
competent, non-hearsay evidence." The ALJ properly exercised discretion in
excluding the hearsay evidence and the Board erred in considering and making
additional findings of fact based upon such evidence. Nevertheless, the
Board's consideration of the hearsay did not affect its independent
determination that the event was not traumatic.
Affirmed.
A-3350-21
11