Orlando Torres v. Board of Trustees, Etc.

NOT FOR PUBLICATION WITHOUT THE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-1710-23

ORLANDO TORRES,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES'

RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________

Argued December 3, 2025 – Decided February 12, 2026

Before Judges Paganelli and Jacobs.

On appeal from the Board of Trustees of the Public

Employees' Retirement System, Department of the

Treasury, PERS No. xx0098.

Samuel M. Gaylord argued the cause for appellant

(Szaferman Lakind Blumstein & Blader PC, attorneys;

Samuel M. Gaylord, on the brief).

Yi Zhu, Deputy Attorney General, argued the cause for

respondent (Matthew J. Platkin, Attorney General,

attorney; Sookie Bae-Park, Assistant Attorney General,

of counsel; Yi Zhu, on the brief).

PER CURIAM

Petitioner Orlando Torres appeals from a final agency decision by the

Board of Trustees, Public Employees Retirement System (Board), finding he

was not entitled to accidental disability retirement (ADR) benefits under

N.J.S.A. 43:15A-43(a). Based on our careful review of the record and the

applicable law, we affirm.

We glean the relevant facts and procedural history from the record. At

the time of the incident at issue, Torres was employed as a Juvenile Detention

Officer (JDO) for over seventeen years. The Administrative Law Judge (ALJ)

described the incident as follows:

On April 7, 2019, Torres was working the day

shift in residence unit C-2, which housed six or seven

juveniles. A code was called regarding a fight in

residence unit C-1.[*] After ensuring the residents of

C-2 were locked back in their rooms, Torres ran to unit

C-1 and saw two residents fighting and Officer Anissa

Simmons trying to pull one of the two away. Torres

pulled the other resident away; the resident resisted,

their feet became tangled, and they fell together to the

floor. Both Torres'[s] knees "slammed" on the cement

floor (which was covered with a light carpet). . . . He

held the resident down until other officers came.

__________

[*]

Torres described a "code" as a signal of trouble with

the juvenile residents to which all officers are required

to respond.

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[(Footnote omitted).]

Because of injuries sustained to his right knee, Torres was found to be

"totally and permanently disabled." The Board granted ordinary disability

retirement benefits to Torres but denied him ADR benefits. Torres "requested a

hearing, and . . . th[e] matter was transmitted to the Office of Administrative

Law . . . as a contested case." The ALJ held hearings over three days and

permitted post-hearing briefs after the parties received the transcripts.

The ALJ heard testimony from Torres, David Weiss, D.O., and Jeffrey

Lakin, M.D. Dr. Weiss was "qualified as an expert in orthopedics and as an"

Independent Medical Examiner (IME). He presented testimony on behalf of

Torres. Dr. Lakin "was qualified as an expert in orthopedics and orthopedic

surgery" and presented testimony on behalf of the Board.

The ALJ found Torres "was credible when he described his job and job

training, his physical condition prior to the incident, and the physical limitations

after the incident which led him to an early retirement." However, "[w]hile he

tried to say that it was unusual . . . for only two JDOs to respond to the fight

between residents, [Torres] admitted that two JDOs were enough to handle this

incident and that is not an uncommon occurrence."

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Further, the ALJ found Torres had "changed his story since 2019." The

ALJ noted Torres "told medical professionals at the time of the incident that he

struck his right knee on the wall" and "[h]e told Dr. Weiss at his IME that he

struck his knee on the wall."

However, Torres "stated at the hearing that he slammed both his knees on

the ground." Further, Torres "stated that shortly after the incident, he 'felt some

throbbing' in both knees." The ALJ concluded that "[f]alling to the floor is

consistent with tripping." "However, if he fell on both knees to the floor, and

both knees were initially 'throbbing[,]'[] but the right knee only was drained of

fluid, and only the right knee developed disabling pain, . . . Dr. Lakin is correct,

the existing arthritis in the right knee was exacerbated by the incident."

(Emphasis omitted).

The ALJ stated it was "within the province of the finder of facts to

determine the credibility, weight, and probative value of the expert testimony."

The ALJ noted, Dr. Weiss "concluded that the incident of April 7, 2019, was the

direct cause of [Torres]'s disability," while Dr. Lakin "concluded that pre-

existing arthritis, aggravated by the April 7, 2019[] incident, was the cause of

Torres'[s] disability."

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The ALJ found both experts "to be credible, competent witnesses."

However, the ALJ determined, "Dr. Lakin's conclusions f[ou]nd support in the

medical records of Torres'[s] treating physician . . . and Dr. Weiss disagree[d]

with" the treating physician. Indeed, the ALJ found "Dr. Weiss did not have the

benefit of [the treating physician's] medical treatment notes when he wrote his

report, and those notes focus on arthritis as the cause of [Torres]'s ongoing knee

pain." The ALJ concluded "[i]n contrast, Dr. Lakin's conclusions are supported

by Torres'[s] medical history and medical records, as well as the opinion of . . .

the treating physician."

The ALJ found Torres had sustained a right knee injury, in approximately

1989. The knee required surgery. In approximately 2001, Torres was hired as

a JDO. During his employment, Torres "worked twelve-hour shifts and

overtime without physical limitations" and never sought medical care "for any

issues related to his right knee."

Further, "[b]reaking up fights between residents . . . was a regular part of

the job of a JDO." Indeed, Torres "was trained for such situations, understood

the risks involved, and was aware that other JDOs had been injured in similar

situations." Moreover, while "[t]ypically, . . . all available officers respond to a

code, . . . Torres testified, not all fights between residents require five or six

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officers and it [wa]s not unusual for two officers to resolve a situation before a

full complement of officers arrive. . . ."

In addition, the ALJ found "Torres did not lack preparation, training or

equipment . . . nor was he injured as a result of unforeseen action (or inaction)

by third parties." Instead, "Torres 'was doing exactly what he intended –

restraining juvenile residents and breaking up a fight.'" Indeed, "[b]reaking up

fights between residents was not an unusual occurrence; [Torres] had been

trained in how to conduct physical restraints and he used this training

frequently."

Moreover, the ALJ found:

During the incident of April 7, 2019, [Torres]

struck his knees on the wall or the floor sufficient to

require medical attention. Twenty-three days after the

incident, an MRI was performed on [his] right knee,

which showed arthritis. The experts agree that the

arthritis shown by the April 30, 2019[] MRI did not

develop in twenty-three days.

While any injuries to [Torres]'s left knee healed,

his right knee required surgery, which was performed

in July 2019. The surgery did not fully address the

condition of [Torres]'s right knee; shortly after, Torres

was deemed totally and permanently disabled from the

performance of the duties of a JDO.

The ALJ further determined:

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6

Even if . . . [she] were to conclude that the injury

suffered by [Torres] on April 7, 2019, was the

substantial cause of his disability, it would not be

enough because the incident in which [Torres] was

injured was not undesigned and unexpected and,

therefore, does not meet the . . . [appropriate] standard.

. . . Torres has not shown by a preponderance of the

credible evidence in the record that the incident of April

7, 2019, was the direct cause of his total and permanent

disability and Torres has not shown by a preponderance

of the credible evidence in the record that the incident

of April 7, 2019, was undesigned and unexpected.

The ALJ affirmed the Board's denial of Torres's application for ADR benefits

and dismissed his appeal. The Board adopted the ALJ's decision in a January

18, 2024 final agency decision.

On appeal, Torres contends: "The pivotal legal issue . . . is whether or not

the April 7, 2019 incident was an 'undesigned and unexpected event.'" He argues

"the Board erred in applying an unduly restrictive notion of an 'undesigned and

unexpected' event." Torres acknowledges "he was trained on the policies and

procedures of the institution" and "that he had responded to other incidents in

his [seventeen] years as a JDO" but asserts this time "he tripped attempting to

restrain the inmate." Torres contends "[i]t is the unexpected tripping" that

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allows him to "meet[] the '[u]ndesigned and [u]nexpected' Richardson [1]

requirement."

In addition, Torres contends he "has demonstrated that his disability was

substantially caused by the . . . incident." Torres argues he "is not required to

prove that the incident was the sole cause of his permanent disability[;] rather

he is only required to provide proof that the incident was the substantial

contributing cause of his permanent disability." Torres concedes "[t]he outcome

of this case turns on the credibility of the medical experts."

Our review of an agency determination is limited. Allstars Auto Grp., Inc.

v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018). An appellate court

"may not substitute its own judgment for the agency's, even though the court

might have reached a different result." In re Stallworth, 208 N.J. 182, 194

(2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). An administrative

agency's determination "will be sustained unless there is a clear showing that it

is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 369, 380

(2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

1

Richardson v. Bd. of Trs., Police & Firemen's Retirement System, 192 N.J.

189, 212-13 (2007).

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27 (2011)). We "review[] agency decisions under an arbitrary and capricious

standard." Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465,

475 (2019). "The burden of demonstrating that the agency's action was

arbitrary, capricious or unreasonable rests upon the [party] challenging the

administrative action." Lavezzi v. State, 219 N.J. 163, 171 (2014) (alteration in

original) (quoting In re J.S., 431 N.J. Super. 321, 329 (App. Div. 2013)).

Our review is limited to the following inquiries:

(1) whether the agency's action violates express or

implied legislative policies, that is, did the agency

follow the law;

(2) whether the record contains substantial evidence to

support the findings on which the agency based its

action; and

(3) whether in applying the legislative policies to the

facts, the agency clearly erred in reaching a conclusion

that could not reasonably have been made on a showing

of the relevant factors.

[Allstars Auto Grp., 234 N.J. at 157 (quoting In re

Stallworth, 208 N.J. at 194).]

In reviewing an agency's decision, we "must be mindful of, and deferential

to, the agency's 'expertise and superior knowledge of a particular field.'" Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

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However, we review an agency's interpretation of the law de novo. Russo, 206

N.J. at 27.

To establish entitlement to ADR benefits, under N.J.S.A. 43:15A-43(a),

an applicant 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.]

Here, our focus is on Richardson's requirements concerning whether

Torres's "traumatic event" was "undesigned and unexpected" and whether it was

"caused by a circumstance external" to him. See ibid.

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Satisfaction of the "undesigned and unexpected" factor requires an event

"extraordinary or unusual in common experience" and not "[i]njury by ordinary

work effort." Id. at 201 (emphasis omitted) (quoting Russo v. Tchrs.' Pension

& Annuity Fund, 62 N.J. 142, 154 (1973)). "The polestar of the inquiry is

whether, during the regular performance of [the member's] job, an unexpected

happening . . . occurred and directly resulted in the permanent and total disability

of the member." Id. at 214. "[W]hen all that appears is that the employee was

doing his [or her] usual work in the usual way," the "undesigned or unexpected"

element is not satisfied. Id. at 201 (emphasis omitted) (quoting Russo, 62 N.J.

at 154).

"[A]n employee who experiences a horrific event which falls within his

job description and for which he has been trained will be unlikely to pass the

'undesigned and unexpected' test." Russo, 206 N.J. at 33; see Thompson v. Bd.

of Trs., Tchrs.' Pension & Annuity Fund, 449 N.J. Super. 478, 503 (App. Div.

2017) (noting "a member's training must be considered").

Nevertheless, the Court has stated that its "comment about training in

Russo, 206 N.J. at 33[,] 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. "

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Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 427 (2018)

(citation reformatted). While,

[i]n a given case, those considerations may weigh

strongly for or against an award of accidental disability

benefits. To properly apply the Richardson standard,

. . . 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.

[Ibid.]

In Richardson, "[t]he only contested issue was whether th[e] incident

constituted a traumatic event." 192 N.J. at 214. There, the petitioner "was

employed as a corrections officer for the South Woods State Prison." Id. at 193.

The petitioner responded to "an emergency signal" regarding "an inmate

violently resist[ing] being handcuffed." Ibid. "Two witnesses testified

concerning the issue of whether such violent resistance [wa]s . . . part of the

normal course of a corrections officer's duties. Both attested that it was not."

Id. at 194. The petitioner "contend[ed] that such violent resistance [wa]s not

part of the stress and strain of a corrections officer's normal work effort." Ibid.

The Supreme Court held, in part, that "[g]iven . . . [its] discussion of work effort,

[the petitioner] satisfied the accidental disability statute." Id. at 214.

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In Russo, the petitioner was

a newly-minted police officer, with no psychiatric

history, completely untrained and unequipped for

firefighting, was ordered into a burning building and,

with his fellow officers, bravely rescued three of the

four occupants. The intensity of the fire terrified and

disoriented [the petitioner], singed his uniform, and

sent him to the hospital overnight for smoke inhalation.

One person in the house, who cried out for help . . .,

could not be reached because of the fire's ferocity and

perished. Thereafter, the victim's family heaped scorn

on [the petitioner] and blamed him for their relative's

death. It was as a result of the fire and the confluence

of events it generated, including the death of the victim

and the relatives' accusations, that [the petitioner] was

rendered permanently . . . disabled. Those

circumstances plainly satisfied . . . Richardson and, in

our view, are exactly what the Legislature had in mind

when it enacted the accidental disability statutes.

[Russo, 206 N.J. at 34-35.]

In Mount, "the Court review[ed] two determinations . . . each involving

. . . police officer []s." 233 N.J. at 407. In one review, a petitioner "witnessed at

close range the incineration of three young victims in an explosion after a high -

speed motor vehicle collision." Id. at 408. The Court held the petitioner had

proved "that the event was undesigned and unexpected within the meaning of

Richardson." Ibid. The Court found:

By virtue of his job description, training, and

prior experience, [the petitioner] could anticipate being

called to accidents that were serious or even fatal. As

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his job description suggests, in some circumstances

[he] would be expected to remove victims from a

damaged vehicle pending the arrival of medical

personnel. [He], however, was not trained to combat,

unassisted, an explosion of such magnitude

experienced at such a close range. With no firefighting

equipment or protective gear, he was helpless in the

face of a terrible tragedy.

We conclude that by virtue of those extraordinary

circumstances, [the petitioner] confronted an incident

that was undesigned and unexpected, and therefore

satisfied that component of the Richardson test.

[Id. at 427-28.]

The second determination involved "a lengthy hostage negotiation [that]

ended with the shooting death of the hostage-taker, as he and [the petitioner]

spoke by cellphone." Id. at 408. The Court held the petitioner had "not

demonstrated that the incident that caused his disability was undesigned and

unexpected under the Richardson test." Ibid. The Court stated petitioner

had reason to anticipate that, without prior warning to

him, a tactical entry might be made.

Moreover, the ALJ and the Board did not rely

exclusively on . . . training. Instead, they considered

evidence regarding the precise police tactics that were

used in this specific case and the warning that those

tactics gave [the petitioner] that the hostage standoff

might end violently.

. . . the Board's conclusion that [the] shooting was not

undesigned and unexpected was premised on far more

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than a formulaic review of [the petitioner]'s job

description and training. It was also based on the

sequence of events that led to [the] death. Although the

shooting was clearly devastating . . . it was not

"undesigned and unexpected" under Richardson.

[Id. at 430-31.]

In Moran v. Board of Trustees, Police & Firemen's Retirement System,

438 N.J. Super. 346 (App. Div. 2014), we reversed a decision denying a

firefighter's "application for an [ADR] pension." Id. at 347. We noted:

Breaking into burning buildings was not

[the petitioner]'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.

....

As [the petitioner] 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

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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, [the petitioner] 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.

[Id. at 349-50 (all but first, fifth, and ninth alteration in

original).]

We concluded, "[n]othing in the history of the pension statute, as

exhaustively reviewed in Richardson, suggests that the Legislature would have

intended to deny [the petitioner] an accidental disability pension in these

circumstances." Id. at 355.

In Brooks v. Board of Trustees, Public Employees' Retirement System,

425 N.J. Super. 277 (App. Div. 2012), the petitioner

was employed . . . as a custodian. One of his

responsibilities, in addition to cleaning classrooms, was

to move furniture and equipment around the school.

[The petitioner] . . . saw a group of teenage boys

attempting to carry a large unwieldy weight bench

weighing approximately 300 pounds into the school.

[He] had not previously seen this piece of equipment,

. . . nor had he ever moved any other weight bench.

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[The petitioner] . . . asked two of the boys to help

him tip the weight bench on its end and lift it onto the

flatbed truck so it could be brought into the gymnasium.

[The petitioner] and the boys began this maneuver.

However, when the bench was "halfway up," the boys

. . . dropped their side of the bench. [The petitioner]

heard his shoulder "snap" as the bench fell to the floor,

which resulted in a total and permanent disability.

[The petitioner] said he did not drop his side of the

bench when he saw the boys drop their side because one

of his feet was directly underneath the bench.

[425 N.J. Super. at 279-280.]

We concluded:

[T]he accident was clearly "undesigned and

unexpected." [The petitioner] was confronted with the

unusual situation of a group of students attempting to

carry a 300-pound weight bench into the school, and

then, after [the petitioner] took charge of this activity,

the boys suddenly dropping one side of the weight

bench, placing its entire weight on [the petitioner].

[Id. at 283.]

Therefore, in applying the "undesigned and unexpected" element of the

Richardson test, we consider a petitioner's job responsibilities and training as

well as all aspects of the event itself. See Mount, 233 N.J. at 427; Thompson,

449 N.J. Super. at 503. In reviewing all aspects, we determine whether there

was something about the event that was out of the "normal," Richardson, 192

N.J. at 194; "extraordinary," id. at 201 (quoting Russo, 62 N.J. at 154); Mount,

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233 N.J. at 428; or "unusual," Brooks, 425 N.J. Super. at 283; as opposed to

"anticipated" or forewarned, Mount, 233 N.J. at 418.

With respect to causation, the "requirement that a disability be the 'direct

result' of the employment-related traumatic event, . . . impose[s] a more exacting

standard of medical causation." Gerba v. Bd. of Trs., Pub. Emps. Ret. Sys., 83

N.J. 174, 185 (1980). The alleged traumatic event must be "the essential

significant or the substantial contributing cause of the resultant disability." Id.

at 186. "Where there exists an underlying condition . . . which itself has not

been directly caused, but is only aggravated or ignited, by the t rauma, then the

resulting disability is, in statutory parlance, 'ordinary' rather than 'accidental'

and gives rise to 'ordinary' pension benefits." Ibid.

Whether a member's disability is the direct result of a traumatic event is

within the ambit of expert medical opinion. Korelnia v. Bd. of Trs., Pub. Emps.

Ret. Sys., 83 N.J. 163, 171 (1980). In general, "[t]he credibility of the expert,

and the weight to be accorded his or her testimony, is assessed by the trier of

fact[.] . . ." State v. Frost, 242 N.J. Super. 601, 615 (App. Div. 1990).

Applying this well-established law, we conclude Torres failed to sustain

his burden to prove the Board's denial of his application for accidental disability

was arbitrary, capricious, or unreasonable. First, there is no evidence that the

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event was "undesigned and unexpected." Instead, Torres was fully trained and

prepared for the event. There was nothing out of the norm, extraordinary or

unusual. The event was anticipated, and Torres had fair warning regarding what

to expect.

Further, we have no reason to substitute our judgment for the Board's

regarding causation. The parties agree the experts' testimony was essential to

the determination of causation, and the ALJ concluded Dr. Lakin was more

credible. The Board adopted that finding, and there is substantial evidence in

the record to support it.

Affirmed.

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