James Moran v. Board of Trustees, Police and Firemen's Retirement System

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1041-13T1
JAMES MORAN,
APPROVED FOR PUBLICATION
Petitioner-Appellant,
November 25, 2014
v.
APPELLATE DIVISION
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
_____________________________
Argued October 15, 2014 - Decided November 25, 2014
Before Judges Reisner, Koblitz and Haas1.
On appeal from the Board of Trustees, Police and
Firemen's Retirement System, PFRS #3-10-44221.
John D. Feeley argued the cause for appellant
(Feeley & LaRocca, LLC, and The Blanco Law Firm,
LLC, attorneys; Pablo N. Blanco, of counsel and
on the brief).
Eileen S. DenBleyker, Senior Deputy Attorney
General, argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General, of
counsel; Nels J. Lauritzen, Deputy Attorney
General, on the brief).
1
Judge Haas did not participate in oral argument. However, with
consent of counsel he has joined in this opinion. R. 2:13-2(b).
The opinion of the court was delivered by
REISNER, P.J.A.D.
James Moran, a firefighter, heroically saved two victims
from a burning building by kicking in the building's front door.
Although Moran suffered disabling injuries in this incident, the
Board of Trustees of the Police and Firemen's Retirement System
(Board) denied his application for an accidental disability
retirement pension. Applying Richardson v. Board of Trustees,
Police and Firemen's Retirement System, 192 N.J. 189, 212-13
(2007), the Board found that Moran's disability was not due to a
traumatic event within the meaning of N.J.S.A. 43:16A-7, because
the incident was "not 'unexpected and undesigned.'" We disagree
and reverse.
I
A.
As background, it is helpful to begin with the pension
statute, as construed in Richardson. Entitlement to an
accidental disability pension requires proof that, "during and
as a result of" performing "his regular or assigned duties," a
member suffered a disabling injury "as a direct result of a
traumatic event." N.J.S.A. 43:16A-7(1). To put these terms in
context, we quote the statute's proof requirements:
the member is permanently and totally
disabled as a direct result of a traumatic
2 A-1041-13T1
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.
[Ibid.]
In Richardson, the Court clarified the meaning of the term
"traumatic event," stating 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." Richardson, supra,
192 N.J. at 212. The Court found that in using the term
"traumatic event," the Legislature did not mean generally to
raise the bar for injured employees to qualify for accidental
disability pensions. Id. at 210-11. Rather, the Legislature
intended "to excise disabilities that result from pre-existing
disease alone or in combination with work effort from the sweep
of the accidental disability statutes and to continue to allow
recovery for the kinds of unexpected injurious events that had
long been called 'accidents.'" Id. at 192. In making that
point, the Court noted that "some of our cases failed to
recognize that critical limitation in purpose and persisted in
3 A-1041-13T1
the entirely wrong notion that the term traumatic event was
intended, in itself, to more significantly narrow the meaning of
accident." Id. at 210-11.
The Court then set forth the factors a pension system
member must prove to obtain accidental disability benefits:
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 (emphasis added).]
Prior to Moran's administrative hearing, the parties
stipulated that Moran met all of the above-cited criteria,
except one. They disagreed as to whether the incident that
caused his disability "was undesigned and unexpected."
4 A-1041-13T1
B.
Undisputed evidence at the hearing established that
firefighting duties were divided between two different units,
each of which would arrive at a fire in a different fire truck. 2
Breaking into burning buildings was not Moran's normal unit
assignment. He was part of an "engine company" whose role was
to "take[] the hoses into the [burning] building . . . and put[]
out the fire." A different unit, the "truck company," was
responsible for forcing entry into a burning structure and
rescuing any occupants. The truck company carried various
special equipment specific to those functions. The two units
were supposed to respond to a fire scene at the same time.
At about 2:00 a.m., Moran's engine company responded to a
fire in what was reported to be a vacant, boarded-up house.
Hence, no one expected that it would be necessary to rescue
anyone inside. Instead, the plan was to mount a "defensive
attack" to keep the fire from spreading to other buildings.
When Moran started fighting the fire, the truck company had not
yet arrived on the scene. Moran stated that when he arrived, he
observed a "heavy, heavy body of fire" in the building, and his
2
At the Office of Administrative Law hearing, most of the facts
were stipulated. Moran testified briefly, as did a fire captain
who had been present at the fire. The Board presented no
witnesses.
5 A-1041-13T1
captain called "emphatically for a truck company for the
building."
As Moran was unrolling the hose toward the building, which
was engulfed in flames, he unexpectedly heard screams from
people trapped inside the structure. He testified that a truck
company would have had special equipment, such as a "[h]ydraulic
ram, a battering ram, [and a] haligon tool with an ax." He
testified that he had none of those tools with him and typically
would not have them. But, because he heard people screaming
inside the building, he used his "shoulder, leg and back" to
break down the door. He testified that the door "was well
fortified, but [he] eventually did" break through it.
Although his fire training involved using tools such as a
"hydraulic ram" to break down doors, not forcing entry with his
body, Moran testified that if he had not opened the door, the
people inside would have died. He also testified that, but for
the unexpected presence of the victims in the burning building,
and the unexpected absence of the truck company, he would not
have tried to open the door.
A fire captain, who was present at the scene as Moran's
commanding officer, corroborated Moran's testimony. On cross-
examination, the fire captain stated that the only tool the
engine company had on its truck which the truck company would
6 A-1041-13T1
also have had was an "ax." However, he stated that the ax was
not available to Moran when this emergency presented itself,
because Moran "was grabbing the hose line at the time which [was
what] he was supposed to be doing."
The Board presented no evidence to contradict Moran's
proofs that he encountered an unexpected life-and-death
emergency for which he was carrying no tools. The Board did not
present testimony from any other firefighter that, faced with
the same situation, he or she would have gone back to the truck
and looked for an ax, leaving the fire victims to their fate in
the meantime. Nor did the Board present evidence that the ax on
the truck was even the appropriate tool to use in breaking down
a fortified door.
In a lengthy opinion, the administrative law judge (ALJ)
found both Moran and the fire captain to be credible witnesses.
The ALJ found that the incident involved an unexpected situation
which required Moran to respond in a manner unanticipated by his
training and experience.
[P]etitioner was dispatched to a burning,
purportedly vacant house as a member of the
fire department's engine company that
advances hoses to extinguish fires and
relies upon the truck company to provide
access and perform search-and-rescue
operations. Quite unexpectedly, as
petitioner performed his assigned duties and
prepared an external defensive attack to
contain the raging blaze, he heard voices
7 A-1041-13T1
from within the boarded building. Also
unexpectedly, and contrary to standard
procedure, the truck company was not on the
scene. For the first time in his ten-year
career as a firefighter, he was confronted
with a raging fire in a purportedly vacant
house that actually had occupants trapped
inside, and the fire squad that provides
access and performs rescue operations was
unpredictably absent. But for that sudden
and emergent circumstance, he would not have
used and injured his body in entering the
building.
Relying on Richardson, the ALJ rejected the Board's
argument that the incident was not undesigned or unexpected
because it resulted from Moran's intentional act of breaking
down the door. The ALJ reasoned that Moran was responding to a
"sudden and emergent circumstance" that required him to respond
with unanticipated extreme physical exertion, causing his
injury.
In its decision, the Board adopted the ALJ's factual
findings. However, the Board rejected his legal conclusions,
reasoning that "[s]imply kicking in a door or intentionally
using one's back to force entry does not constitute an
'unexpected happening,' as Mr. Moran's very intent in partaking
in these happenings would necessarily render such happenings to
be expected."
The Board also reasoned that, according to the Civil
Service job description, a fire fighter's job duties included
8 A-1041-13T1
rescuing people and, hence, Moran "did intentionally perform a
duty within the scope and performance of his regular duties for
which he had been specifically trained."
Here, the work activity itself was not
undesigned or unexpected. Mr. Moran was
disabled as a direct result of performing
the work he intentionally set out to do.
When he heard screams from inside the
building, he intentionally slammed his body
against a door in order to force it open.
These facts do not lend themselves to any
unexpected activity or accident. . . . Mr.
Moran's disabling injury, while unfortunate,
was caused by ordinary and intended, if
dire, work effort -- not by an undesigned
and unexpected external mishap.
II
On this appeal, we defer to the agency's factual findings,
but we owe no deference to its legal conclusions, "particularly
when 'that interpretation is inaccurate or contrary to
legislative objectives.'" Russo v. Bd. of Trs., Police &
Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (quoting G.S. v.
Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J.
161, 170 (1999)). In this case, we are persuaded that in
denying accidental disability benefits to a firefighter whose
heroic response to an undesigned and unexpected traumatic event
left him disabled, the Board has misconstrued Richardson and
9 A-1041-13T1
reached a result at odds with the legislative intent in adopting
the "traumatic event" standard.3
As previously noted, the 1964 amendments to the disability
pension statute were not intended to make it generally more
difficult for injured employees to obtain an accidental
disability pension. Richardson, supra, 192 N.J. at 210-11.
Rather, the amendments were intended to weed out disabilities
stemming from a member's pre-existing medical condition, even if
the condition was exacerbated by a work incident. Id. at 211.
Thus, a firefighter with a heart condition could not collect an
accidental disability pension for a disabling heart attack
suffered while fighting a fire, and a custodian likewise is not
entitled to such benefits if he suffers a heart attack while
performing his janitorial duties. See Cattani v. Bd. of Trs.,
Police & Firemen's Ret. Sys. 69 N.J. 578, 586-87 (1978); Russo
v. Teacher's Pension & Annuity Fund, 62 N.J. 142, 154 (1973).
3
This is not the first time the Board's cramped view of the
Richardson standards has resulted in an unjustified denial of
benefits. See Russo, supra, 206 N.J. at 26-27 (rejecting
Board's denial of benefits to a police officer, who suffered
emotional trauma after being unexpectedly called upon to rescue
five victims); Brooks v. Bd. of Trs., Public Emps.' Ret. Sys.,
425 N.J. Super. 277, 283-84 (App. Div. 2012) (rejecting the
Board's conclusion that a teacher did not suffer an "undesigned
and unexpected" accident because "he should have anticipated the
dangers involved" in helping students carry a heavy object).
10 A-1041-13T1
In this case, the Board determined that Moran's injury did
not qualify him for an accidental disability pension because it
occurred while he was conducting one of his expected work-
related duties, rescuing fire victims. The Board further
reasoned that what occurred was not an "accident" because Moran
intended to throw his body against the door. We conclude that
the Board's decision misread Richardson, misapplied the statute,
and took an unduly narrow view of what constitutes an
"unexpected and undesigned" traumatic event.
We harken back to Richardson, in which the Board made a
similar error in denying an application from a corrections
officer injured during a scuffle with an inmate:
The Board contends that because
subduing an inmate is part of the
anticipated work of a corrections officer
and was not unexpected or unintended,
Richardson cannot satisfy the traumatic
event standard. That is a misreading of the
statute, which requires that the traumatic
event occur "during and as a result of the
performance of [the member's] regular or
assigned duties." To be sure, when the
"normal stress and strain" of the job
combines with a pre-existing disease to
cause injury or degeneration over time, a
traumatic event has not occurred. See
Cattani, supra, 69 N.J. at 585; Russo,
supra, 62 N.J. at 151. That is quite
different from saying that a traumatic event
cannot occur during ordinary work effort.
Indeed it can. A policeman can be shot
while pursuing a suspect; a librarian can be
hit by a falling bookshelf while re-shelving
books; a social worker can catch her hand in
11 A-1041-13T1
the car door while transporting a child to
court. Each of those examples is
identifiable as to time and place;
undesigned and unexpected; and not the
result of pre-existing disease, aggravated
or accelerated by the work. Thus, each
meets the traumatic event standard. So long
as those members also satisfy the remaining
aspects of the statute, including total and
permanent disability, they will qualify for
accidental disability benefits.
In sum, the fact that a member is
injured while performing his ordinary duties
does not disqualify him from receiving
accidental disability benefits; some
injuries sustained during ordinary work
effort will pass muster and others will not.
The polestar of the inquiry is whether,
during the regular performance of his 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 213-14 (alteration in original)
(final emphasis added).]
We agree with the ALJ that in this case the traumatic event
must be viewed with a wider lens than the one the Board applied.
The undesigned and unexpected event here was the combination of
unusual circumstances that led to Moran's injury: the failure of
the truck unit to arrive, and the discovery of victims trapped
inside a fully engulfed burning building, at a point when Moran
did not have available to him the tools that would ordinarily be
12 A-1041-13T1
used to break down the door.4 As a result, he was forced to
carry out his paramount duty to rescue fire victims, by manually
kicking in the door. Had he not responded immediately to break
down the door, the victims would have died. That was Moran's
unrebutted, credible testimony.
While this was not a classic "accident" in the sense that
the house did not collapse on Moran, nor did he trip while
carrying a fire hose, it was clearly an unexpected and
undesigned traumatic event that resulted in Moran's suffering a
disabling injury while performing his job. Viewed in context,
the injury was also caused by an event, or series of events,
"external" to Moran. Richardson, supra, 192 N.J. at 212-13; see
Brooks, supra, 425 N.J. Super. at 283. By analogy, had Moran
become hopelessly trapped by fire on an upper floor of the
house, and saved himself by jumping out a window thereby
suffering disabling injuries, he would not be disqualified for
benefits because he "intentionally" jumped.
Nor was this a situation in which Moran should have
expected to find himself. We acknowledge that in Russo, supra,
206 N.J. at 33, the Court reasoned that an ambulance squad
4
We reject the Board's backhanded criticism of Moran, in
referring to his "deviating" from his training in failing to use
the ax on the truck. The Board presented no testimony at the
hearing to dispute the captain's assertion that the ax was not
available to Moran at the time he needed it.
13 A-1041-13T1
member disabled by emotional trauma after coming upon a horrible
auto accident "will not satisfy Richardson's 'undesigned and
unexpected' standard because that is exactly what his training
has prepared him for." Ibid. However, this case is different.
The Board, having adopted the ALJ's factual findings, was
obligated to render its legal conclusions based on those
findings. In this case, the ALJ found that Moran's training had
not prepared him to break into burning buildings without the
battering rams and other specialized equipment used by the truck
company. Indeed, there was no evidence to the contrary.
Further, as the ALJ found, no equipment was available to Moran
at the moment he had to make the life-or-death decision that
confronted him. Nothing in the history of the pension statute,
as exhaustively reviewed in Richardson, suggests that the
Legislature would have intended to deny Moran an accidental
disability pension in these circumstances.
Accordingly we reverse the Board's decision and remand with
direction to grant Moran an accidental disability pension.
14 A-1041-13T1