Noe Perez 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NOT FOR PUBLICATION WITHOUT THE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-3650-21

NOE PEREZ,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

____________________________

Submitted May 1, 2024 – Decided May 15, 2024

Before Judges Currier and Vanek.

On appeal from the Board of Trustees of the Police and

Firemen's Retirement System, Department of the

Treasury, PFRS No. xx5525.

Alterman & Associates, LLC, attorneys for appellant

(Arthur J. Murray, on the brief).

Nels J. Lauritzen, Deputy Director, Legal Affairs,

attorney for respondent (Juliana C. DeAngelis, Legal

Counsel, on the brief).

PER CURIAM

Petitioner Noe Perez injured his toe during a physical struggle with a

suspect while working as a Camden County Police Department officer on

September 11, 2016. Perez's application for accidental disability retirement

benefits (ADRB), pursuant to N.J.S.A 43:16A-7, was denied in an initial

decision by the Board of Trustees (Board), Police and Firemen's Retirement

System of New Jersey (PFRSNJ). On further appeal, an Administrative Law

Judge (ALJ) concluded Perez "failed to demonstrate that the event which caused

his disability was undesigned and unexpected" and affirmed the denial. On June

15, 2022, the Board issued a final administrative determination adopting the

ALJ's initial decision denying Perez's application for ADRB. Based on our

careful review of the record and prevailing New Jersey law, we affirm.

I.

The parties do not dispute Perez was rendered totally and permanently

disabled as a result of the injury. Instead, the parties disagree whether the event

leading to Perez's disability was "undesigned and unexpected" as articulated in

Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192

N.J. 189, 212-13 (2007), and required under N.J.S.A 43:16A-7(a)(1) to qualify

for ADRB.

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We glean the salient facts from the record developed at the Office of

Administrative Law (OAL) hearing. Perez testified he began working as an

officer with the Paterson Police Department in 2005. Throughout his career,

Perez attended training at the police academy in Paterson as well as the Federal

Law Enforcement Training Academy (the Federal Academy). In 2013, Perez

transferred to the Camden County Police Department (CCPD) and was assigned

to the Metro Division—Neighborhood Response Team.

Perez testified at the time he joined the CCPD, law enforcement in

Camden County was experiencing an increase in problems stemming from drug

use within the city, specifically the use of marijuana or tobacco cigarettes dipped

in phencyclidine (PCP) referred to as "wet." When asked if there were any other

issues facing Camden County at that time, Perez responded:

Many. High drug. It was—PCP was big. It was

so bad, you could smell PCP. We learned about the

superpowers that these guys would get under that

influence. There's no—pain compliance is big. If you

don't have pain compliance when you're trying to

subdue the subject, I mean, you can get knocked out

and anything could happen.

Perez explained he first learned of pain compliance at the Federal

Academy. Using this method, law enforcement was able to target "pressure

point[s]" on a suspect in order to "create pain" which would cause the suspect

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to "give in" and allow themselves to be apprehended by officers. However,

when a suspect is under the influence of drugs, specifically PCP, they are much

less responsive to pain compliance techniques, which makes them harder to

subdue.

On September 11, 2016, Perez was on-duty and the majority of his shift

had been a "normal day." Toward the end of his shift, Perez noted "it was kind

of warm and when the weather is good, people tend to just get high in the city

and use substances." He then heard a call through dispatch that "officers were

asking for assistance" at a particular location.

Perez responded to the scene. Once there, he saw the "suspect [was]

clearly . . . under the influence of 'wet.'" Perez questioned other officers as to

why the suspect had not yet been apprehended. He felt the other officers may

have been afraid of the suspect, and he determined he "had to face the beast,"

meaning he would attempt to apprehend the suspect "alone." Though Perez

noted typically multiple officers would work as a team to subdue a suspect they

believed to be under the influence of drugs, there was "[n]othing [he] could do"

to "get into the other officers' bodies and tell them come help."

After unsuccessfully attempting to verbally calm the suspect, the

interaction became physical. The suspect "tried to elbow strike" Perez, but Perez

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was "able to gain control and get under him, get under his armpits specifically,

and try to do a takedown, which was difficult."

Once the suspect was on the ground, another officer on the scene used a

taser gun on him. Because Perez was in physical contact with the suspect, he

also felt the effects of the taser, although the suspect did not respond to the

tasing. Perez did not find the suspect's failure to respond surprising, because of

his experience with PCP users not responding to pain in the same manner as

sober people.

Perez began "trying to secure [the suspect] as fast as [he] c[ould]." Other

than an officer tasing the suspect, Perez testified he received no help from other

officers while he attempted to subdue the suspect. Perez and the suspect

engaged in a physical struggle on the ground where the suspect continued

"twisting his body," "resisting" and "pivoting." Perez described the suspect as

having "the strength of a bull" as "[h]e was throwing his torso, his upper body

towards [Perez] to put weight and prevent being pinned down."

At that point, Perez began "trying to use leverage to pin" the suspect which

he found to be "very challenging." The suspect "reared back and [Perez] had to

compensate" by using his left leg and foot as leverage to pin the suspect to the

ground. Despite his prior training and experience, Perez testified he had

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received "no training" and "no preparation" for an interaction of this nature with

a suspect.

Perez did not identify the precise moment during his struggle with the

suspect that his injury occurred. Nor did he present medical reports to

demonstrate the injury resulted from the force of the suspect's actions. Rather,

Perez stated he had to extend his leg and exert additional pressure for leverage

because of the suspect's "movement."

I was losing control at that moment . . . so I needed

leverage for that precise moment, to attempt to not—I

didn't want to reverse this where he had total gain of the

situation because then I would be out of the fight. He'll

have control of it.

Perez testified: "As far as the injury, I can't say whether that was the very

moment or not." Ultimately, the suspect was subdued, handcuffed, and detained.

As Perez began stepping away after the altercation was over, he realized he "was

having a hard time walking" and "couldn't put any pressure whatsoever on [his

left] foot."

Perez's toe "sustained a full thickness tear of the medial collateral

ligament of the first MTP joint, . . . [and] a very prominent partial thickness tear

of the lateral collateral ligament." He attempted to return to work, but, even

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6

after treatment, his injury rendered him unable to perform his duties. Because

there was no opportunity for a reduced assignment, Perez applied for ADRB.

Detective Eddie Pineiro, who worked for the CCPD for twenty-five years,

also testified before the ALJ. Pineiro explained officers are trained to determine

if a suspect is under the influence of drugs and how to apprehend individuals

with excited delirium or a suspect under the influence of drugs such as PCP.

Pineiro also testified officers are trained as to how to respond to emotionally

disturbed people (EDPs). He testified the appropriate practice is to have more

than one officer apprehend such suspects so the person does not harm themsel f

or others.

After the hearing concluded, the ALJ found Perez had "received training

on how to handle individuals who resisted arrest or who attempted to flee and

learned techniques on how to handle and restrain individuals who were bigger,

stronger, and faster than himself." Further, the ALJ concluded Perez's extensive

experience as a police officer demonstrated that he was aware suspects could

"act erratically and violently, exhibit excessive strength and resist being

detained."

As to the September 11, 2016 incident, the ALJ found Perez "responded

to a call for backup assistance for an irate emotionally disturbed male ," but it

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was never medically established if the suspect in question was under the

influence of PCP or other drugs or "whether the suspect's behavior was due

solely to his mental status and lack of medications for a period of time ." The

ALJ found that upon arriving on the scene, Perez concluded he was going to

subdue the suspect himself.

The ALJ summarized the findings of the Board that Perez "met the

Richardson criteria [to receive ADRB] with one exception—the incident giving

rise to his disability was not a traumatic event, as it was not undesigned and

unexpected" because "there was no external force, happening or accident in this

case." Instead, the ALJ concluded Perez "was injured while restraining a suspect

by using his body as leverage in accordance with his training and experience."

Accordingly, the ALJ determined "it was the work of force or work effort by

[Perez] himself while attempting to leverage his body to secure the suspect that

caused his injury" so "[t]here was no external force, external happening or

accident."

As a result, the ALJ concluded Perez "failed to demonstrate that the event

which caused his disability was undesigned and unexpected" and recommended

"that the Board's denial" of Perez's ADRB application be affirmed. The Board

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accepted the ALJ's determination and adopted the entirety of the initial decision.

This appeal follows.

II.

On appeal, Perez argues the Board was incorrect in determining the

September 11, 2016 struggle with the suspect was not "undesigned and

unexpected." Specifically, he asserts his prior training and experience were

insufficient for him to have anticipated the events that unfolded, especially as

he subdued the suspect largely without the assistance of other officers. Further,

Perez contends the Board utilized an impermissibly narrow definition of

"undesigned and unexpected" in its consideration of his ADRB application. We

disagree.

Appellate "review of [an] administrative agency action is limited." Russo

v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). "[A]gencies

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 Suspension or Revocation of the License Issued to

Zahl, 186 N.J. 341, 353 (2006)). "A reviewing court '"may not substitute its

own judgment for the agency's, even though the court might have reached a

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different result.'" In re Stallworth, 208 N.J. 182, 194-95 (2011) (quoting In re

Carter, 191 N.J. 474, 483 (2007)).

"[A]n appellate court ordinarily should not disturb an administrative

agency's determinations or findings unless there is 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 Application of Virtua-W. Jersey Hosp. Voorhees for a Certificate of Need,

194 N.J. 413, 422 (2008). Review of an agency's interpretation of the law is de

novo. Russo, 206 N.J. at 27.

III.

A PFRSNJ member is entitled to ADRB if

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 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.

[N.J.S.A. 43:16A-7(a)(1).]

The Court clarified the factors for our consideration of this analysis in

Richardson, 192 N.J. at 212-13, providing new guidance to unify the disparate

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tests that had previously been applied to ADRB determinations. Under the

Richardson standard, in order to qualify for ADRB, an applicant must prove:

1. [they are] 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 [their] usual or any other

duty.

[Mount v. Bd. of Trs., Police and Firemen's Ret. Sys.,

233 N.J. 402, 421 (2018) (quoting Richardson, 192 N.J.

at 212-13).]

In Richardson, the Court found the "undesigned and unexpected" prong

requires either "an unintended external event" or "an unanticipated

consequence" of an intended event that "is extraordinary or unusual in common

experience." 192 N.J. at 201 (quoting Russo v. Tchrs' Pension & Annuity Fund,

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62 N.J. 142, 154 (1973)). "Injury by ordinary work effort," when "the employee

was doing [their] usual work in the usual way" does not qualify. Ibid. (quoting

Russo, 62 N.J. at 154). In short, "work effort itself . . . cannot be the traumatic

event." Id. at 211.

As set forth by the Court in Richardson, the following constitute potential

undesigned and unexpected events:

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 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 214.]

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In Richardson, a corrections officer was injured while attempting to

subdue an inmate. Id. at 193. While the officer straddled him, the inmate kicked

and punched the officer. Ibid. Eventually, the inmate broke free of the officer's

control. Ibid. The inmate jerked up from the ground and knocked the officer

backward, injuring him. Ibid. The Court found the officer's injury was caused

by a "traumatic event" because the event "was (a) identifiable as to time and

place; (b) unexpected and undesigned; and (c) not caused by a pre-existing

condition . . . alone or in combination with work effort." Id. at 214-15. See also

Moran v. Bd. of Trs. Police & Firemen's Ret. Sys., 438 N.J. Super. 346, 353-55

(App. Div. 2014) (where this court determined a firefighter's injury was caused

by an "undesigned and unexpected" event because he was in an unusual

circumstance as there were trapped victims and the team that was supposed to

handle the situation was delayed); Brooks v. Bd. of Trs., Pub. Emps Ret. Sys.,

425 N.J. Super. 277, 279-83 (App. Div. 2012) (reversing the Board's

determination it was not "undesigned and unexpected" when a school custodian

injured his shoulder after students dropped a 300-pound bench he was helping

them carry because it was not part of his regular job duties and the incident was

without warning).

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We are satisfied the ALJ did not err in distinguishing Perez's

circumstances from Richardson and its progeny. Perez was trained on how to

apprehend volatile and unpredictable suspects as part of a core aspect of his job.

Through his own testimony, Perez recognized prior to September 11, 2016 he

had experience and training on how to restrain individuals who were under the

influence of drugs or experiencing a mental health crisis and were actively

resisting arrest. Further, he testified to previously using the same maneuver to

lodge his foot against another suspect to gain leverage on a different occasion.

Under Richardson, an undesigned and unexpected event must either be

"an unintended external event or . . . "an unanticipated consequence of an

intended external event if that consequence is extraordinary or unusual in

common experience." 192 N.J. at 201 (quoting Russo, 62 N.J. at 154). "Injury

by ordinary work effort . . . although unexpected by the individual afflicted, is

not an extraordinary or unusual consequence in common experience." Ibid.

(quoting Russo, 62 N.J. at 154).

Perez did not testify to a specific external event or identifiable action by

the suspect that caused his injury. We conclude Perez has not demonstrated

there was an undesigned or unexpected traumatic event as required and defined

under N.J.S.A. 43:16A-7(a)(1) and Richardson.

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We need only briefly address Perez's argument the ALJ adopted an unduly

narrow view of the "undesigned and unexpected" requirement in determining he

was trained to subdue suspects under the influence of drugs or otherwise

experiencing a mental health disturbance. Perez's reliance on Gable v. Board of

Trustees of the Public Employees' Retirement System, 115 N.J. 212, 223-24

(1989), for support of his argument is misplaced.

Preliminarily, Gable predates the guidance set forth in Richardson and its

progeny. And, unlike the circumstances in Gable, where the petitioner

corrections officer was attacked by inmates in three separate occurrences, Perez

has not explained how a police officer using their own physical force to subdue

a suspect resisting arrest is unexpected. Rather, Perez testified the environment

for policing Camden was "a volatile situation" while he was on-duty. We see

no reason to find the ALJ, and the Board through adopting the decision, applied

an unduly narrow interpretation of "undesigned and unexpected" when

rendering the decision to deny Perez's ADRB application.

Finally, Perez argues his past interactions with suspects who were under

the influence of drugs or experiencing a mental health crisis were insufficient to

prove the incident on September 11, 2016 was not undesigned and unexpected.

Perez is correct the determination of whether an incident is undesigned and

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unexpected cannot be "resolved merely by reviewing the member's job

description and the scope of his or her training." Mount, 233 N.J. at 427.

However, he does not proffer any specifics as to how the September 11, 2016

incident constitutes unusual circumstances or anything beyond the typical

course of work he was trained to do and regularly performed or that his own

force in subduing the suspect did not cause the injury.

Although an incident may be "devastating" to the applicant who has been

injured, careful review of governing case law sets forth an injury which

culminated from a "sequence of events" that was not "undesigned and

unexpected" will not suffice to establish an entitlement to ADRB. Id. at 430-31

(finding "based on [an experienced hostage negotiator's] training, [petitioner]

had reason to anticipate that, without prior warning to him, a tactical entry might

be made," so he had not experienced an "undesigned and unexpected" event

entitling him to ADRB when the suspect was killed by police while on the phone

with him).

We are satisfied the Board's adoption of the ALJ's decision denying

Perez's application for ADRB was based on the applicable statute and prevailing

law as applied to the credible evidence in the record.

Affirmed.

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