Daniel L. Duran v. Board of Trustees, Etc. ( 2023 )

NOT FOR PUBLICATION WITHOUT THE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-2482-21
DANIEL L. DURAN,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
____________________________
Argued November 8, 2023 – Decided December 19, 2023
Before Judges Whipple and Enright.
On appeal from the Board of Trustees of the Police
and Firemen's Retirement System, Department of the
Treasury, PFRS No. xx9095.
Samuel Michael Gaylord argued the cause for
appellant (Szaferman Lakind Blumstein & Blader, PC,
attorneys; Samuel Michael Gaylord, on the brief).
Thomas R. Hower, Staff Attorney, argued the cause
for respondent (Nels J. Lauritzen, Deputy Director of
Legal Affairs, attorney; Thomas R. Hower, on the
brief).
PER CURIAM
Petitioner Daniel Duran was denied Accidental Disability (AD)
retirement benefits by the Board of Trustees of the Police and Firemen's
Retirement System of New Jersey (PFRS). He appeals from that decision.
Petitioner worked as a police Sergeant for the Rutgers University Police.
He was also part of the Firearms Interdiction Team as a liaison officer for the
Newark Police Department (Newark PD). On October 12, 2014, while
working with the Newark PD, he received a call about a fleeing suspect.
Specifically, petitioner reported that while attempting to apprehend a
suspect, the suspect collided with him causing petitioner to crash onto the
pavement sustaining injuries to his left knee and leg. In the hospital, he
underwent emergency surgery for a fractured tibial plateau and dislocation.
He had three surgeries in total and argues he has not recovered from this injury
and can no longer perform the functions and tasks of a police officer.
On September 19, 2019, petitioner filed for Accidental and Ordinary
Disability benefits. On June 9, 2020, PFRS denied petitioner's AD application
pursuant to N.J.S.A. 43:16A-7. PFRS found petitioner totally and permanently
disabled from the performance of his regular and assigned job duties. PFRS
also found that the event occurred during—and as a result of—petitioner's
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regular or assigned duties, thus the disability was not undesigned and
unexpected. Petitioner was granted Ordinary Disability. He appealed the
decision and had the matter transferred to the Office of Administrative Law
(OAL).
The Administrative Law Judge (ALJ) held an evidentiary hearing
wherein petitioner testified about the injury causing event. Petitioner asserted
it was not normal for him to be ignored when yelling at a suspect to "stop."
Although chasing suspects was something he anticipated as part of being a
police officer, this event was unique because ordinarily during a foot pursuit,
he would be behind the fleeing suspect. Here, the suspect was perpendicular
to him, which petitioner argued was unusual.
On February 18, 2022, the ALJ issued their Initial Decision (ID). The
ALJ rejected petitioner's application because petitioner did not meet the
"undesigned or unexpected" test outlined in Richardson v. Board of Trs.,
Police and Firemen's Ret. Sys. 192 N.J. 189, 212 (2007). In their findings of
fact, the ALJ accepted the PFRS's determination that the incident was
identifiable to a time and place, and "occurred during and as a result of
[p]etitioner's regular and assigned duties and was also not the result of
[p]etitioner's willful negligence." The ALJ found the event was not
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"undesigned and unexpected" as the contact "occurred in the normal course of
the pursuit and apprehension of the suspect."
The ALJ relied on the Richardson test: A traumatic event is one where
an "unexpected external happening that directly causes injury [occurs] and is
not the result of a pre-existing disease alone or in combination with work
effort." Richardson, 192 N.J. at 212. The ALJ stated the injury is expected as
"in the dangerous performance of one's duties, an anticipated action, an
apprehension of a suspect, can involve physical exertion which can result in an
injury." Therefore, the petitioner did not meet his burden to establish the
incident as an undesigned and unexpected event.
On March 16, 2022, PFRS considered petitioner's exhibits, the ALJ's ID
and exceptions filed by PFRS's counsel. PFRS noted the exceptions filed,
adopted the ID by the ALJ, and denied petitioner's application for AD
retirement benefits. This appeal followed.
Our review of an administrative agency action is limited. Russo v. Bd.
of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). An agency's
decisions will be reversed if we find the decision to be "arbitrary, capricious,
or unreasonable, or [] not supported by substantial credible evidence in the
record as a whole." In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v.
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Rahway State Prison, 81 N.J. 571, 579 (1980)). The party challenging the
validity of the administrative decision bears the burden of proving that the
decision was "arbitrary, unreasonable or capricious." Boyle v. Riti, 175 N.J.
Super. 158, 166 (App. Div. 1980).
Under N.J.S.A. 43:16A-7(a), AD will be granted if "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." To obtain AD benefits, petitioner 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, 192 N.J. at 212-13 (emphasis added).]
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The issues here are whether: (1) petitioner suffered the injury because
of an "undesigned and unexpected" event and (2) there is sufficient evidence to
support that there was no unexpected happening.
Given our limited standard of review, we discern no basis to disagree
with the factual findings made by ALJ—which were adopted by PFRS—or
PFRS's legal conclusion that petitioner had not established he was entitled to
Accidental Disability retirement benefits. Petitioner argues his case is like
Richardson, Moran v. Bd. of Trs., Police & Firemen's Ret. Sys., 438 N.J.
Super. 346 (App. Div. 2014), and Brooks v. Bd. of Trs., Pub. Employees Ret.
Sys., 425 N.J. Super. 277 (App. Div. 2012).
We disagree. In Richardson, a corrections officer was injured while
attempting to subdue an inmate. 192 N.J. at 193. The officer straddled the
inmate to hold him down. Ibid. The inmate continued to kick, punch, and
throw his body around, and eventually pulled himself loose. Ibid. The inmate
then forcefully jerked up from the ground and knocked the officer backward,
injuring him. Ibid. The Court concluded the officer's injury was caused by a
traumatic event because the event "was (a) identifiable as to time and place;
(b) unexpected and undesigned; and (c) not caused by a pre-existing condition
. . . alone or in combination with work effort." Id. at 214-15.
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In Moran, a firefighter was injured after kicking down a door to a
burning building because he heard voices yelling from inside. 438 N.J. Super.
at 350. The firefighter was part of the "engine company" that brought hoses to
burning buildings and not part of the "truck company" that brought equipment
used to forcibly enter those buildings. Id. at 349. The "truck company" was
running late so the firefighter attempted to rescue the people inside the
building despite not having the proper equipment. Id. at 354. The firefighter's
injury was caused by an undesigned and unexpected event because the
firefighter 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. Ibid.
In Brooks, a school custodian suffered a shoulder injury while he and a
group of students were moving a 300-pound weight bench. 425 N.J. Super. at
279-80. The custodian was injured when the students dropped the bench.
Ibid. We reversed the PERS Board's determination that the event was not
undesigned and unexpected because moving the bench was not part of the
custodian's regular job duties and the students who he was attempting to help
suddenly dropped it. Id. at 283.
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This case is distinguishable from Richardson, Moran, and Brooks. We
agree with the trial court the injury did not result from an unexpected
happening nor was the traumatic event undesigned. PFRS's finding that
petitioner's injury was not the direct result of a traumatic event that was
undesigned and unexpected was supported by credible evidence in the record
and not arbitrary, capricious, or unreasonable.
The fact that the suspect did not stop when being told to do so and used
his shoulder when he collided with petitioner was not an unusual external
event like the occurrence in Richardson, Moran, and Brooks. Petitioner was
performing an activity he had been trained for and was taught how to perform.
Petitioner acknowledged chasing suspects is part of the job and are
typically part of the petitioner's regular or assigned duties. Even though the
resulting injury may be traumatic in that it led to broken bones and various
surgeries, it is not undesigned and unexpected, because it was caused by
ordinary work effort that is a common experience to officers who are expected
to apprehend fleeing suspects. See Gable v. Bd. of Trs., 115 N.J. 212, 223
(1989).
Based on our review, the ALJ correctly applied Richardson and its
progeny.
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Affirmed.
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