The opinion
NOT FOR PUBLICATION WITHOUT THE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-0809-23
LOBO ANDREWS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
__________________________
Argued November 14, 2024 – Decided January 10, 2025
Before Judges Marczyk and Paganelli.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. xx7801.
Samuel M. Gaylord argued the cause for appellant
(Szaferman Lakind Blumstein & Blader, attorneys;
Samuel M. Gaylord, on the brief).
Jakai Jackson, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Sookie Bae-Park, Assistant Attorney
General, of counsel; Jakai Jackson, on the brief).
PER CURIAM
Petitioner Lobo Andrews appeals from the October 19, 2023 Board of
Trustees (Board) of the Public Employees' Retirement System's (PERS) denial
of his application for accidental disability retirement benefits. Petitioner
contends the injury to his left shoulder occurred when he was restraining a
violent patient at the Ann Klein Forensic Center (AKFC) and constituted an
"undesigned and unexpected" event entitling him to an accidental disability
pension. The Board denied petitioner's claim, finding the injury was not
undesigned and unexpected. Following our review of the record and the
applicable legal principles, we reverse.
I.
We derive the following facts from petitioner's testimony and other
evidence presented at the hearing before the Administrative Law Judge (ALJ).
Petitioner testified he worked for AKFC, "a facility for the criminally insane,"
as a Senior Medical Security Officer for fifteen years, prior to ending his
employment following the incident. He noted a typical work day would include
"mak[ing] a count," "do[ing] medication[,] and tak[ing his patients] to
rehabilitation throughout the day" while "spend[ing] . . . a lot of time . . . on the
unit itself."
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On February 23, 2017, petitioner testified a "stat call" came in over the
loudspeaker for a "patient that was out of control." He ran to the incident and
"tr[ied] to get the patient down and into a net restraint" with other officers, which
involved "get[ting the patient's] arms inside the holes [of the net] and strap[ping]
the net on top of the patient [and] onto the bed" "[t]o keep [the patient] from
harming themselves."
Petitioner had prior experience with these calls, and it was part of his
responsibilities to respond. However, he explained this call was different
because the patient was "extremely combative." Petitioner recounted the patient
"kicking," "biting," "throwing punches and fighting." He characterized the
altercation as "like a . . . wrestling match." He recalled the incident lasting
fifteen to twenty minutes and "definitely" longer than normal. Petitioner
"attempt[ed] to keep the patient's legs down" while the other officers attempted
to restrain the patient. During the incident, petitioner sustained "several strong
kicks and knees" "into the shoulder."
After injuring his shoulder, petitioner indicated he followed AKFC's
procedures by completing an incident report before he sought medical attention.
Petitioner testified he reported to a nurse and supervisor on the scene and
eventually was transported to the hospital. Petitioner underwent surgery to his
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shoulder and did not return to his employment at AKFC. He received workers'
compensation benefits.
Petitioner stated he gave the Board's doctor a history of his injury that
matched "[his] description of accidental disability" "provided in the [original]
incident report[s]." Lastly, petitioner agreed that "the sort of uniqueness of this
particular incident [was] . . . the extended period of time and the tenacity at
which the patient was fighting, [which] . . . [made] this different than other
incidents that [he had] responded to."
On cross-examination, petitioner acknowledged he had completed
incident reports in the past but never had to modify one based on information
becoming available post-incident. He conceded he had restrained more than 100
patients in the past and that "every time [he] responded to a call, the patient
would be in different stages of agitation," with some patients being harder than
others to get into a restraint.
Petitioner was then asked to review the original incident reports prepared
around the time of the incident. The first report, dated February 23, 2017, read:
"While in process of restraining a patient and putting them in the net restraint,
[petitioner] hurt [his] left shoulder." He admitted to informing Hamilton
Physical Therapy Services on March 1, 2017, where he received treatment post-
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injury, that while he "restrain[ed] a [patient, he] sustained an impact injury to
[his] left shoulder." Petitioner also testified regarding his visits with Princeton
Orthopedics Associates, where a doctor's report noted petitioner "injured [his]
shoulder while restraining a patient." Confronted with further medical reports,
petitioner noted the reports showed the same general description of his injury to
his left shoulder.
In his "Application for Disability Retirement," petitioner characterized the
incident as an "assault." He acknowledged he never used that word before to
describe the incident. Petitioner testified the discrepancy occurred because "[he]
was in a lot of pain and [he] just needed to get some medical treatment" at the
time he completed the incident report. He further explained there was no
difference in being injured while getting assaulted by a patient as opposed to
being injured while restraining a patient. He testified "it's all tied in together"
in this situation.
Petitioner subsequently applied for accidental disability retirement
benefits. The Board denied the application, concluding the accident did not meet
the undesigned and unexpected requirement. 1 Petitioner appealed, and the
1
The Board determined petitioner was permanently disabled from a rotator cuff
injury and labrum tear and awarded him ordinary disability retirement benefits.
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matter was transferred to the Office of Administrative Law for a hearing before
an ALJ.
The ALJ determined petitioner "displayed a subjective recollection of the
[i]ncident, and his testimony essentially confirmed the facts as laid out by
respondent." The ALJ noted petitioner's testimony that the patient was
"extremely combative and thrashing about." However, the ALJ indicated
"nobody referred to the [i]ncident as an 'assault,' including petitioner, until he
submitted his version of the [i]ncident when filing his [accidental disability]
application." The ALJ found the other reports solely mentioned an injury and
"failed to describe an assault." Moreover, he noted petitioner "testified that the
patient was kicking at all the personnel and that he had not been a targeted victim
of a specific attack."
The ALJ concluded "[t]he injury to petitioner's left shoulder was the result
of petitioner performing his regular duties in a normal fashion," that
"[r]estraining patients was part of [petitioner's] regular job duties," that
"[petitioner] had dealt with restraining unruly patients more than one hundred
times," and that "[r]estraining unruly patients was so typical an occurrence that
the facility had established policies for such situations." The ALJ ultimately
denied the application for accidental benefits holding the incident "cannot be
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considered undesigned or unexpected" because it was part of petitioner's usual
job duties.
On October 19, 2023, the Board adopted the ALJ's decision. Thereafter,
petitioner appealed.
II.
Petitioner argues the Board improperly determined that he is not entitled
to an accidental disability pension because the incident causing his disability
was undesigned and unexpected.
We are cognizant that appellate review of an administrative agency's final
determination is limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
206 N.J. 14, 27 (2011). Our courts generally "recognize that agencies have
'expertise and superior knowledge . . . in their specialized fields.'" Hemsey v.
Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223 (2009) (alteration
in original) (quoting In re License Issued to Zahl, 186 N.J. 341, 353 (2006)).
"[A]n appellate court ordinarily should not disturb an administrative
agency's determinations or findings unless there was a clear showing that[:] (1)
the agency did not follow the law; (2) the decision was arbitrary, capricious, or
unreasonable; or (3) the decision was not supported by substantial evidence." In
re Virtua-W. Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422
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(2008). "The burden of demonstrating that the agency's action was arbitrary,
capricious[,] or unreasonable rests upon the person challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.
2006).
Even so, "in reviewing agency actions, an appellate court is 'in no way
bound by the agency's interpretation of a statute or its determination of a strictly
legal issue.'" Hemsey, 198 N.J. at 224 (quoting In re Carter, 191 N.J. 474, 483
(2007)). "While we must defer to the agency's expertise, we need not surrender
to it." N.J. Chapter of Nat'l. Ass'n of Indus. & Off. Parks v. N.J. Dep't of Env't
Prot., 241 N.J. Super. 145, 165 (App. Div. 1990). We do not automatically
accept an agency's interpretation of a statute or a regulation, and we review
strictly legal questions de novo. Bowser v. Bd. of Trs., Police & Firemen's Ret.
Sys., 455 N.J. Super. 165, 170-71 (App. Div. 2018).
Petitioner contends "the Board erred in applying an unduly restrictive
notion of an 'undesigned and unexpected' event to [petitioner]'s . . . incident[,]
misconstruing Richardson [2] and reaching a decision at odds with the legislative
intent in adopting the 'traumatic event' standard." He asserts the Legislature did
not intend "to make it generally more difficult for injured employees to obtain
2
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007).
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an accidental disability pension[;]" instead, it "intended to weed out disabilities
stemming from a member's pre-existing medical condition, even if the condition
was exacerbated by a work incident."
Moreover, petitioner argues "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." He contends the key inquiry is whether during the
regular performance of his job an unexpected happening—not the result of a
pre-existing injury or disease—occurred and resulted in the permanent and total
disability. He maintains this case "mirrors" Moran v. Board of Trustees, Police
& Firemen's Retirement System, 438 N.J. Super. 346 (App. Div. 2014), "in that
despite being trained and having restrained patients in the past[,] this incident
was unique due to the nature of the patient and the assault" because petitioner
"never had a patient who was this combative."
The Board counters there is sufficient evidence in the record "to support
the Board's decision that [petitioner] failed to show that his injury was the result
of a traumatic event" where the ALJ "found[] none of the [patient's] kicks were
targeted at [petitioner]; rather[,] [petitioner] was struck in the shoulder while the
patient was flailing about . . . ." The incident cannot be described as "undesigned
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and unexpected" because petitioner's injury occurred while he performed "his
regular duties in a normal fashion."
The Board argues petitioner's testimony confirmed that "restraining
unruly patients was part of his regular job duties, that he had restrained patients
hundreds of times . . . and that nobody referred to the incident as an 'assault,'
including [petitioner], until he submitted his disability application. " It argues
petitioner's claims differ from the examples provided by the Court in Richardson
because, while "the Court found them to be examples of accidents that could
occur during ordinary work efforts and would qualify for accidental disability
retirement benefits," here "[petitioner] was aware of the ongoing risk of being
hit inadvertently during his attempt to restrain the patient's legs."
N.J.S.A. 43:15A-43(a) provides accidental disability retirement benefits
may be obtained "if [an] employee 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." Our Supreme Court in Richardson clarified
the phrase "result of a traumatic event" applicable to N.J.S.A. 43:15A-43(a) by
providing a list of five elements a claimant seeking accidental disability
retirement benefits must satisfy. 192 N.J. at 212-13. The list includes:
1. that [the member] is permanently and totally
disabled;
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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.
[Ibid.]
"Thus, a member who is injured as a direct result of an identifiable,
unanticipated mishap has satisfied the traumatic event standard." Id. at 213.
In Richardson, the petitioner, a corrections officer, was injured while
attempting to subdue an inmate. Id. at 214. He was knocked back during the
incident causing him to "fall . . . onto his left hand and hyper-extend his wrist."
Id. at 193. The petitioner filed for accidental disability retirement benefits, and
the Board denied the application because it determined "[the petitioner] did not
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suffer a traumatic event as required by the statute." Id. at 194. Similarly, "the
ALJ determined that the January incident did not constitute a traumatic event[]
because [the petitioner]'s response was part of the ordinary duties of a
corrections officer." Ibid. "The Board adopted that decision," and "the
Appellate Division affirmed, adding that, in its view, [the petitioner]'s injury
also did not satisfy the great-rush-of-force prong of the traumatic event
standard." Ibid.
The Supreme Court reversed, concluding the Board "misread[]" the statute
in determining that "subduing an inmate is part of the anticipated work of a
corrections officer and was not unexpected or unintended." Id. at 213. Instead,
the Court stressed the statute's requirement that the traumatic event "occur
'during and as a result of the performance of [the member's] regular or assigned
duties.'" Ibid. (alteration and emphasis in original). That is, a traumatic event
under the statute can occur during ordinary work effort, and the Court identified
the following examples: "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 the car door while transporting a child to court.
Each of those examples is . . . undesigned and unexpected" and "[t]hus, each
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meets the traumatic event standard." 3 Id. at 214. The Court in Richardson noted
the "polestar" of the inquiry as being "whether, during the regular performance
of [the petitioner's] 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." Ibid. As discussed below,
the facts here are not materially different from Richardson.
Our case law has instructed that a member "who experiences a horrific
event which falls within his [or her] job description and for which he [or she]
has been trained will be unlikely to pass the 'undesigned and unexpected' test."
Russo, 206 N.J. at 33. Nonetheless,
Russo should not be construed to mean that the inquiry
regarding whether an event is "undesigned and
unexpected" is resolved merely by reviewing the
member's job description and the scope of his or her
training. In a given case, those considerations may
3
The Court discussed other situations to provide guidance. For example, "a
police officer who has a heart attack while chasing a suspect has not experienced
a traumatic event" where "work effort, alone in combination with pre-existing
disease, was the cause of the injury." Id. at 213. Whereas "the same police
officer, permanently and totally disabled during the chase because of a fall[] has
suffered a traumatic event." Ibid. Likewise, "the gym teacher who develops
arthritis from the repetitive effects of his work over the years has not suffered a
traumatic event" as "[h]is disability is the result of degenerative disease and is
not related to an event that is identifiable as to time and place." Ibid. "On the
contrary, the same gym teacher who trips over a riser and is injured has satisfied
the standard." Ibid.
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weigh strongly for or against an award of accidental
disability benefits. To properly apply the Richardson
standard, however, the Board and a reviewing court
must carefully consider not only the member's job
responsibilities and training, but all aspects of the event
itself. No single factor governs the analysis.
[Mount v. Bd. of Trs., Police and Firemen's Ret. Sys.,
233 N.J. 402, 427 (2018) (emphasis added).]
Applying these principles, we determine the Board erred in adopting the
ALJ's initial decision denying petitioner's application for accidental disability
retirement benefits. The ALJ took issue with petitioner's characterization of the
incident as an "assault" in his application for disability retirement, when he had
previously noted in the incident report that he "hurt [his] left shoulder"
attempting to restrain a patient. It appears this largely formed the basis for the
denial of petitioner's application. However, petitioner's testimony was
unrefuted, and the ALJ does not suggest his description of the altercation was
inaccurate.
Whether petitioner initially characterized the altercation as an assault is
not germane, as the ALJ accepted the testimony that the patient petitioner was
attempting to restrain was combative. Whether described as an assault or being
forcefully kicked while attempting to restrain a patient, petitioner's version of
the incident was analogous to the facts in Richardson. Moreover, the ALJ noted
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that petitioner "testified that the patient was kicking at all the personnel and that
he had not been a targeted victim of a specific attack." That petitioner had not
been a specific target of an attack does not mean the incident was not
"undesigned and unexpected."
We conclude the facts here are closely aligned with the facts in
Richardson, where the Supreme Court granted accidental disability benefits to a
corrections officer injured while attempting to handcuff a violent individual in
the course of his duties. 192 N.J. at 214-15. Petitioner here was likewise
attempting to restrain a combative patient during a fifteen-to-twenty-minute
struggle while being repeatedly kicked in the shoulder. The "uniqueness" of this
altercation for petitioner stemmed from the "extended period of time" needed to
restrain the patient and the "tenacity" with which the patient was fighting.
Because the Board erred in its application of the law to the factual
circumstances presented here, we reverse the Board's decision and remand for
the Board to grant petitioner's application and award petitioner accidental
disability retirement benefits.
Reversed and remanded for proceedings in accordance with this opinion.
We do not retain jurisdiction.
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