Maynard v. Board of Trustees of the Teachers' Pension & Annuity Fund

O’HERN, J.,

dissenting.

I agree substantially with Justice Stein’s analysis of the Court’s precedent in this area set forth in his dissenting opinion in Ciecwisz v. Board of Trustees, Police & Firemen’s Retirement System, 113 N.J. 180 (1988), also decided today. I disagree, however, with his making the rarity of the event an independent qualification for recovery. In focusing on Justice Sullivan’s reference to “the event which results in a disabling injury,” Cattani v. Board of Trustees, Police & Firemen’s Retirement Sys., 69 N.J. 578, 586 (1976), Justice Stein has turned Justice Sullivan’s dual-causation inquiry into an independent disqualification. (Recall that in Cattani the “event” was superimposed on a pre-existing heart problem; Ms. Maynard had no such prior disability.) Thus in my view, a teacher who suffers the occasional mishap of a slip on a polished school floor but nonetheless receives the shattering impact of a violent blow to her body should not be disqualified from recovery.

To give a regrettably gruesome example to make the point, would we ever doubt that a public employee who slipped from a ground level position and was impaled on an iron post that fractured her spine had suffered a disability that resulted from a “traumatic event”?

In focusing on Justice Clifford’s examples of a “great rush of force,” Kane v. Board of Trustees, Police & Firemen’s Retirement Sys., 100 N.J. 651, 663 (1985), the majority has turned useful guides to the Legislature’s intent into an artificially-created standard of ground-level disqualification. Unable to explain why this case is not covered by the illustration in that case — that the fireman who falls from a ladder may suffer a traumatic injury even though not exposed to force supplied by another — the Court answers that “the height of the ladder *179 generates a gravitational force that, unlike that of someone who is standing on the ground, is ‘great.’ ” Ante at 175.

Although intimating that it adheres to the rule of Kane , the Court has in fact substituted a rule of gravity for traumatic injury — no recovery no matter how violent the force of the blow if you fell less than six feet. Aside from being bad physics, I doubt that the Legislature would intend such an ad hoc modification of its qualitative standard for accidental disability benefits.

Hence, I would hold that Dianne Maynard has met the statutory qualification for an accidental disability benefit. The “basic thrust” of the 1966 Amendments of the two pension systems was to focus on “a more stringent test of medical causation” predicated on a “traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.” Gerba v. Board of Trustees of the Public Employees’ Retirement Sys., 83 N.J. 174, 186 (1980). The public employee met that test and the Kane test:

[T]o be eligible for accidental disability retirement allowance, a worker must demonstrate (1) that his injuries were not induced by the stress or strain of the normal work effort; (2) that he met involuntarily with the object or matter that was the source of the harm; and (3) that the source of the injury itself was a great rush of force or uncontrollable power. [Kane, supra, 100 N.J. at 663 .]

I would therefore affirm the judgment of the Appellate Division.

Justice HANDLER joins in this dissent.

STEIN, J., concurring in the result.

For reversal and reinstatement — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, GARIBALDI and STEIN — 5.

For affirmance — Justices HANDLER and O’HERN — 2.