Opinion
DOCKET NO. A-0065-11T1
10-03-2012
KRISTINE ZUTELL, Petitioner-Appellant, v. POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Swenson & Doyle, attorneys for appellant (Craig C. Swenson, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS #3-10-38629.
Swenson & Doyle, attorneys for appellant (Craig C. Swenson, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief). PER CURIAM
Kristine Zutell appeals from a final decision of the Board of Trustees, Police and Firemen's Retirement System (Board), denying her application for accidental disability benefits. The Board determined that Zutell did not establish that her disabling condition was a direct result of a traumatic event. We affirm.
The record reflects that Zutell was a county correction officer working the midnight shift on September 3, 2007 at the Bergen County Jail. While running to respond to the report of an inmate assault on another officer at 3:45 a.m., she injured her right knee. By the time Zutell arrived at the scene, the inmate had already been subdued. Zutell reported her injury to her sergeant, who asked if she wished to go to the hospital. Zutell declined, advising that she would try to finish her shift.
Shortly before the end of her shift, Zutell reported to her sergeant that she was not feeling well, and another officer drove her to the hospital. There, Zutell reported that she "felt a pop in my R[ight] knee," while responding to an incident at work. She described pain in her knee, right shoulder and neck. The injury forced Zutell to remain out of work until the end of September when she returned to light duty. She returned to full duty in February 2008.
Zutell applied for accidental disability benefits in August 2008. The Board denied her application in July 2009, granting her an ordinary disability pension. Zutell appealed, and the matter was transferred to the Office of Administrative Law (OAL) for a hearing as a contested case. The OAL hearing was held on April 9, 2011.
The only witness to testify at the hearing was Zutell, who claimed that she slipped and fell while running to assist a fellow officer. On cross-examination, Zutell was forced to admit that none of the four reports of her injury, all of which were prepared within twenty-four hours of its occurrence, mentions a slip and fall. The three reports that describe the incident in any detail all make the same reference to Zutell feeling "a pop" in her right knee. One of these three reports, written in the first-person, bears Zutell's signature. Zutell testified that the signature is a forgery, that she had not prepared any of the reports of her injury, and that she had not used the word "pop" in reporting her injury to her superiors.
Zutell also testified on cross-examination that she had undergone surgery on her right knee in February 2005 and January 2007. A report by her treating physician, prior to her first surgery, notes that Zutell complained of frequent buckling of her knee. A post-surgical follow-up by the same doctor reports that Zutell "felt something pop on the outside of her knee," while exercising following knee surgery.
The administrative law judge (ALJ) denied Zutell's application for accidental disability benefits on June 10, 2011. The ALJ found that Zutell had not suffered any mishap at work, but was merely running to respond to a code "when her knee gave way or popped." None of the contemporaneous documents describe any evidence of a slip and fall or other mishap, and Zutell did not produce any evidence corroborating her contention of a slip and fall. The ALJ also found that Zutell's knee having given out while performing her duties on September 3, 2007, could not be deemed wholly unexpected in light of her two prior knee surgeries. Finally, the ALJ found that Zutell's work effort merely aggravated her pre-existing knee condition. The Board adopted the ALJ's findings of fact and conclusions of law on July 12, 2011. This appeal followed.
Zutell argues on appeal that the Board erred in adopting the ALJ's finding that she did not satisfy the requirements for accidental disability benefits. Specifically, she contends that the incident of September 3, 2007 was a qualifying traumatic event.
Our role in reviewing the decision of an administrative agency is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a strong presumption of reasonableness to an agency's exercise of its statutorily delegated responsibility, City of Newark v. Natural Res. Council, 82 N.J. 530, 539 cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to its fact finding. Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 29 (1995) (Handler, J., dissenting). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Our public pension systems are "bound up in the public interest and provide public employees significant rights which are deserving of conscientious protection." Zigmont v. Bd. of Trs., Teachers' Pension & Annuity Fund, 91 N.J. 580, 583 (1983). Because pension statutes are remedial in character, they are liberally construed and administered in favor of the persons intended to be benefited thereby. Klumb v. Bd. of Educ, 199 N.J. 14, 34 (2009).
Against this backdrop, we consider the question presented by this appeal. In order to qualify for an ordinary disability retirement, a member must satisfy the requirements of N.J.S.A. 43:16A-6(1), which provide that the member must be mentally or physically incapacitated for the performance of usual duty and of any other duty the member's department would assign and that such incapacity is likely to be permanent. To be eligible for the enhanced benefit of an accidental disability pension, the member must further show 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[.]" N.J.S.A. 43:16A-7(1).
In Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), the Supreme Court determined that an individual seeking accidental disability benefits under N.J.S.A. 43:16A-7(1) must establish:
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,3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
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);
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, supra, 192 N.J. at 212-13.]
Here, there is no question as to Zutell's disability, as demonstrated by the Board's having granted her ordinary disability retirement benefits. The sole issue was whether Zutell's disability was the result of a traumatic event. Zutell argues that she testified that her injury was a direct result of an identifiable, unanticipated mishap in the form of a slip and fall, and that the Board failed to present any witness to contradict her description of the event.
It is obvious, however, that the ALJ rejected Zutell's testimony as incredible, finding that none of the reports in the record documenting the incident refers to a slip and fall, including one bearing Zutell's signature. Although Zutell asserts the signature is a forgery, she presented no proof to support such a claim. Zutell also testified that she did not tell her superiors that her knee had "popped" as documented in the reports prepared at the time of the incident. She admitted, however, to having used that exact word to describe the injury to emergency room personnel within hours of the incident. The same description appears in Zutell's medical records detailing knee problems pre-dating this injury. The ALJ's determination as to Zutell's credibility is entitled to deference. In re Taylor, 158 N.J. 644, 656-57 (1999).
Moreover, the ALJ found that Zutell did not meet her burden under Richardson to prove that the incident was unexpected or caused by a circumstance external to the member. The Court in Richardson determined that the Legislature sought to prohibit a member disabled by a pre-existing condition, "alone or in combination with work effort," from collecting accidental disability benefits. Richardson, supra, 192 N.J. at 210. Unrefuted evidence in the record demonstrated that Zutell suffered from a pre-existing knee injury requiring two prior surgeries and resulting in frequent episodes of the knee buckling, "popping," and giving way. The ALJ concluded on the basis of such evidence that Zutell did not carry her burden under Richardson because her injury was precipitated by the normal work effort of running to respond to a code, and the internal and not unexpected event, in light of her pre-existing knee injury, of her knee "popping" and giving way. Richardson, supra, 192 N.J. at 212.
Upon review, we find no basis to suggest the Board's adoption of the ALJ's findings was arbitrary or capricious. The ALJ's findings were fully supported by substantial credible evidence in the record. Accordingly, there is no basis to alter the Board's conclusion denying Zutell's application for accidental disability retirement benefits. In re Young, 202 N.J. 50, 70 (2010).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION