DERICK VEERDEN VS. BOARD OF TRUSTEES, ETC. (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-3241-19
DERICK VEERDEN,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,
Respondent-Respondent.
_____________________________
Submitted May 11, 2021 – Decided June 16, 2021
Before Judges Gilson and Gummer.
On appeal from Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, Docket No. 3-10-05549.
Limsky Mitolo, attorneys for appellant (Marcia J.
Mitolo, of counsel and on the briefs).
Robert Seymour Garrison, Jr., Director of Legal
Affairs, PFRSNJ, attorney for respondent (Thomas R.
Hower, Staff Attorney, on the brief).
PER CURIAM
Appellant Derick Veerden, a former Hudson County Corrections officer,
appeals from an April 14, 2020 final administrative determination by the Board
of Trustees of the Police and Firemen's Retirement System (Board), which
denied his application for accidental disability retirement benefits. Appellant
argues that the Board erred in finding that the incident that caused his physical
injuries was not "undesigned and unexpected." Discerning no basis to disagree
with the Board's findings, we affirm.
I.
From 1996 to 2018, appellant was employed as a corrections officer with
the Hudson County Department of Corrections. On August 16, 2016, he injured
his back while working when he went to assist a fellow officer break up a fight
between two inmates.
In December 2017, appellant applied for accidental disability retirement
benefits. The Board granted him ordinary disability but denied his appl ication
for accidental disability. Appellant administratively appealed and the matter
was transferred for an evidentiary hearing before the Office of Administrative
Law. An Administrative Law Judge (ALJ) conducted a hearing on May 31,
2019. Appellant and a fellow corrections officer, who was appellant's work
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partner, testified at the hearing and the ALJ reviewed various documents,
including reports on the incident.
Most of the material facts were not in dispute. On August 16, 2016,
appellant was performing his normal duties of working with his partner, Officer
Korey Wright, to transport immigration detainees from the Hudson County
Correctional Facility to court hearings in New York. After appellant and Wright
secured the inmates they were going to transport in a bullpen, another officer
arrived in the area escorting two other inmates. That officer requested Wright's
assistance to take handcuffs off the inmates. As the handcuffs were being
removed, the two inmates began to fight. Appellant intervened to assist Wright
and the other officer.
Appellant testified that he pulled the inmate off Wright and he "guessed"
that he may have fallen backwards and hit concrete or a bench. He also testified
that he then pushed one of the inmates into another cell and locked the door. In
the contemporaneous report appellant wrote and submitted concerning the
incident, he does not mention hitting his back on a bench or concrete.
After hearing the testimony, the ALJ found that:
At the time [appellant] was in the bullpen with the
secured inmates and Wright went to . . . the bullpen with
[the other officer's] inmates and removed the handcuffs
from one of the inmates. The uncuffed inmate began
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fighting the other inmate with Wright between them.
[Appellant] went to assist Wright by pulling one of the
inmates off Wright. He pulled the inmate back and
either "flung" the inmate into another bullpen or banged
his back before securing the inmate in another cell.
After locking the door[,] petitioner began to feel
spasms in his back. It is not disputed that petitioner
injured his back during the course of his scuffle with
the inmate.
The ALJ then concluded that there was no evidence of an "unexpected
happening" and, thus, appellant failed to establish that the incident that caused
his injury was a traumatic event, which is a necessary finding to qualify for
accidental disability retirement benefits. In making that conclusion, the ALJ
noted that physically restraining unruly inmates was a regular part of appellant's
job duties.
Appellant filed exceptions with the Board and after reviewing the record,
the Board adopted the ALJ's decision. Accordingly, the Board granted ordinary
disability but denied accidental disability retirement benefits. Appellant appeals
from the Board's decision.
II.
On appeal, appellant argues that the Board ignored the credible evidence
that his injury was caused by an "unexpected happening" and he is, therefore,
entitled to accidental disability retirement benefits. Appellant also argues that
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the Board and the ALJ misconstrued the governing law. We find no merit in
either argument.
Our review of an administrative agency determination is limited. In re
Carter, 191 N.J. 474, 482 (2007). We will sustain a board's decision "unless
there is a clear showing that it is arbitrary, capricious, or unreasonable, or that
it lacks fair support in the record." Russo v. Bd. of Trs., Police and Firemen's
Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28
(2007)). Under this standard our scope of review is guided by three major
inquiries: (1) whether the agency's decision conforms with relevant law; (2)
whether the decision is supported by substantial credible evidence in the record;
and (3) whether in applying the law to the facts, the administrative "agency
clearly erred in reaching" its conclusion. In re Stallworth, 208 N.J. 182, 194
(2011) (quoting Carter, 191 N.J. at 482-83).
We are not bound by an agency's statutory interpretation or other legal
determinations. Russo, 206 N.J. at 27 (quoting Mayflower Sec. Co. v. Bureau
of Sec., 64 N.J. 85, 93 (1973)). Nevertheless, we accord "substantial deference
to the interpretation given" by the agency to the statute it is charged with
enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996)
(citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). "Such deference has
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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)).
A claimant seeking accidental disability retirement benefits must prove
five elements:
1. that he [or she] 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.
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[Richardson v. Bd. of Trs., Police & Firemen's Ret.
Sys., 192 N.J. 189, 212-13 (2007); see also N.J.S.A.
43:15A-43.]
To be traumatic, an event must be "undesigned and unexpected."
Richardson, 192 N.J. at 212. "The polestar of the 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." Id. at
214.
The central issue in this case is whether appellant suffered an injury
because of an "undesigned and unexpected" event. The Board accepted the
factual findings made by the ALJ. The ALJ, in turn, found that there was no
evidence of an unexpected happening. In making that finding, the ALJ found
that corrections officers routinely intervened in breaking up fights among
inmates.
Consequently, the more focused issue was whether appellant's
intervention in the fight between the two inmates constituted an "undesigned
and unexpected" traumatic event. The ALJ did not credit appellant's testimony
that he fell backwards and hit the concrete floor or a bench. Instead, the ALJ
found that appellant had failed to sustain his burden. In making that finding, the
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ALJ relied on the incident reports, which did not mention or refer to appellant
falling and striking his back either on the concrete floor or a bench. In particular,
the ALJ noted that appellant's own written report of the event, which he prepared
on the day of the incident, did not reference appellant hitting his back on
concrete or a bench.
That determinative factual finding is supported by substantial credible
evidence in the record. In his incident report, appellant stated that
I noticed [Wright] uncuff inmate [H] who was standing
in cell 113: At that time [inmate H] attacked [inmate
T] who was still handcuff[ed]. I immediat[e]ly ran over
and assisted [Wright] in trying to separate the two
inmates. At that time[,] [inmate H] bit [Wright] on his
right hand, while helping separate the two inmates I
hurt my back.
Given our limited scope of review, we discern no basis to disagree with the
factual findings made by the Board or its legal conclusion that appellant had not
established that he was entitled to accidental disability retirement benefits.
Appellant argues that a surge of force caused him to fall and strike a metal
bench or concrete floor with one of the inmates on top of him. He then argues
that the Board and ALJ ignored his credible testimony.
In making this argument, appellant seeks to have us reject the Board's
factual findings and accept his testimony. That is not our role. Although the
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ALJ and Board did not expressly find that appellant was not credible, the ALJ
and Board both found that there was no credible evidence that a surge of force
caused appellant to fall and strike his back.
Appellant also argues that the Board and ALJ misconstrued the governing
law. The governing law is well-established. To qualify for accidental disability
retirement benefits, the petitioner must establish that a traumatic event occurred
while the petitioner was performing his or her regular or assigned duties. Id. at
213. Our Supreme Court has made clear that the "work effort itself . . . cannot
be the traumatic event." Id. at 211 (emphasis omitted).
Pulling two inmates apart and pushing one of them into a cell is not a
traumatic event; rather, it is part of appellant's work responsibilities. The ALJ
and Board did not find that there was an unexpected surge of force causing
appellant to fall and strike his back either on metal, concrete, or a bench.
Consequently, we do not discern that either the ALJ or the Board misconstrued
the governing law. Instead, the Board and ALJ did not accept the factual
contentions made by appellant.
Affirmed.
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