DERICK VEERDEN VS. BOARD OF TRUSTEES, ETC. (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

D
                                NOT FOR PUBLICATION WITHOUT THE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-3241-19

DERICK VEERDEN,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,

     Respondent-Respondent.
_____________________________

                   Submitted May 11, 2021 – Decided June 16, 2021

                   Before Judges Gilson and Gummer.

                   On appeal from Board of Trustees of the Police and
                   Firemen's Retirement System, Department of the
                   Treasury, Docket No. 3-10-05549.

                   Limsky Mitolo, attorneys for appellant (Marcia J.
                   Mitolo, of counsel and on the briefs).

                   Robert Seymour Garrison, Jr., Director of Legal
                   Affairs, PFRSNJ, attorney for respondent (Thomas R.
                   Hower, Staff Attorney, on the brief).

PER CURIAM
      Appellant Derick Veerden, a former Hudson County Corrections officer,

appeals from an April 14, 2020 final administrative determination by the Board

of Trustees of the Police and Firemen's Retirement System (Board), which

denied his application for accidental disability retirement benefits. Appellant

argues that the Board erred in finding that the incident that caused his physical

injuries was not "undesigned and unexpected." Discerning no basis to disagree

with the Board's findings, we affirm.

                                        I.

      From 1996 to 2018, appellant was employed as a corrections officer with

the Hudson County Department of Corrections. On August 16, 2016, he injured

his back while working when he went to assist a fellow officer break up a fight

between two inmates.

      In December 2017, appellant applied for accidental disability retirement

benefits. The Board granted him ordinary disability but denied his appl ication

for accidental disability. Appellant administratively appealed and the matter

was transferred for an evidentiary hearing before the Office of Administrative

Law. An Administrative Law Judge (ALJ) conducted a hearing on May 31,

2019. Appellant and a fellow corrections officer, who was appellant's work



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partner, testified at the hearing and the ALJ reviewed various documents,

including reports on the incident.

      Most of the material facts were not in dispute. On August 16, 2016,

appellant was performing his normal duties of working with his partner, Officer

Korey Wright, to transport immigration detainees from the Hudson County

Correctional Facility to court hearings in New York. After appellant and Wright

secured the inmates they were going to transport in a bullpen, another officer

arrived in the area escorting two other inmates. That officer requested Wright's

assistance to take handcuffs off the inmates. As the handcuffs were being

removed, the two inmates began to fight. Appellant intervened to assist Wright

and the other officer.

      Appellant testified that he pulled the inmate off Wright and he "guessed"

that he may have fallen backwards and hit concrete or a bench. He also testified

that he then pushed one of the inmates into another cell and locked the door. In

the contemporaneous report appellant wrote and submitted concerning the

incident, he does not mention hitting his back on a bench or concrete.

      After hearing the testimony, the ALJ found that:

            At the time [appellant] was in the bullpen with the
            secured inmates and Wright went to . . . the bullpen with
            [the other officer's] inmates and removed the handcuffs
            from one of the inmates. The uncuffed inmate began

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                                       3
              fighting the other inmate with Wright between them.
              [Appellant] went to assist Wright by pulling one of the
              inmates off Wright. He pulled the inmate back and
              either "flung" the inmate into another bullpen or banged
              his back before securing the inmate in another cell.
              After locking the door[,] petitioner began to feel
              spasms in his back. It is not disputed that petitioner
              injured his back during the course of his scuffle with
              the inmate.

      The ALJ then concluded that there was no evidence of an "unexpected

happening" and, thus, appellant failed to establish that the incident that caused

his injury was a traumatic event, which is a necessary finding to qualify for

accidental disability retirement benefits. In making that conclusion, the ALJ

noted that physically restraining unruly inmates was a regular part of appellant's

job duties.

      Appellant filed exceptions with the Board and after reviewing the record,

the Board adopted the ALJ's decision. Accordingly, the Board granted ordinary

disability but denied accidental disability retirement benefits. Appellant appeals

from the Board's decision.

                                        II.

      On appeal, appellant argues that the Board ignored the credible evidence

that his injury was caused by an "unexpected happening" and he is, therefore,

entitled to accidental disability retirement benefits. Appellant also argues that


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                                         4
the Board and the ALJ misconstrued the governing law. We find no merit in

either argument.

      Our review of an administrative agency determination is limited. In re

Carter, 191 N.J. 474, 482 (2007). We will sustain a board's decision "unless

there is a clear showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record." Russo v. Bd. of Trs., Police and Firemen's

Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28

(2007)). Under this standard our scope of review is guided by three major

inquiries: (1) whether the agency's decision conforms with relevant law; (2)

whether the decision is supported by substantial credible evidence in the record;

and (3) whether in applying the law to the facts, the administrative "agency

clearly erred in reaching" its conclusion. In re Stallworth, 208 N.J. 182, 194

(2011) (quoting Carter, 191 N.J. at 482-83).

      We are not bound by an agency's statutory interpretation or other legal

determinations. Russo, 206 N.J. at 27 (quoting Mayflower Sec. Co. v. Bureau

of Sec., 64 N.J. 85, 93 (1973)). Nevertheless, we accord "substantial deference

to the interpretation given" by the agency to the statute it is charged with

enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996)

(citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). "Such deference has


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been specifically extended to state agencies that administer pension statutes[,]"

because "a state agency brings experience and specialized knowledge to its task

of administering and regulating a legislative enactment within its field of

expertise." Piatt v. Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App.

Div. 2015) (quoting In re Election L. Enf't Comm'n Advisory Op. No. 01-2008,

201 N.J. 254, 262 (2010)).

      A claimant seeking accidental disability retirement benefits must prove

five elements:

            1.    that he [or she] 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 [or her] usual or any
            other duty.


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                                        6
            [Richardson v. Bd. of Trs., Police & Firemen's Ret.
            Sys., 192 N.J. 189, 212-13 (2007); see also N.J.S.A.
            43:15A-43.]

       To be traumatic, an event must be "undesigned and unexpected."

Richardson, 192 N.J. at 212. "The polestar of the inquiry is whether, during the

regular performance of his [or her] 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.

       The central issue in this case is whether appellant suffered an injury

because of an "undesigned and unexpected" event. The Board accepted the

factual findings made by the ALJ. The ALJ, in turn, found that there was no

evidence of an unexpected happening. In making that finding, the ALJ found

that corrections officers routinely intervened in breaking up fights among

inmates.

       Consequently, the more focused issue was whether appellant's

intervention in the fight between the two inmates constituted an "undesigned

and unexpected" traumatic event. The ALJ did not credit appellant's testimony

that he fell backwards and hit the concrete floor or a bench. Instead, the ALJ

found that appellant had failed to sustain his burden. In making that finding, the


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ALJ relied on the incident reports, which did not mention or refer to appellant

falling and striking his back either on the concrete floor or a bench. In particular,

the ALJ noted that appellant's own written report of the event, which he prepared

on the day of the incident, did not reference appellant hitting his back on

concrete or a bench.

      That determinative factual finding is supported by substantial credible

evidence in the record. In his incident report, appellant stated that

             I noticed [Wright] uncuff inmate [H] who was standing
             in cell 113: At that time [inmate H] attacked [inmate
             T] who was still handcuff[ed]. I immediat[e]ly ran over
             and assisted [Wright] in trying to separate the two
             inmates. At that time[,] [inmate H] bit [Wright] on his
             right hand, while helping separate the two inmates I
             hurt my back.

Given our limited scope of review, we discern no basis to disagree with the

factual findings made by the Board or its legal conclusion that appellant had not

established that he was entitled to accidental disability retirement benefits.

      Appellant argues that a surge of force caused him to fall and strike a metal

bench or concrete floor with one of the inmates on top of him. He then argues

that the Board and ALJ ignored his credible testimony.

      In making this argument, appellant seeks to have us reject the Board's

factual findings and accept his testimony. That is not our role. Although the


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                                         8
ALJ and Board did not expressly find that appellant was not credible, the ALJ

and Board both found that there was no credible evidence that a surge of force

caused appellant to fall and strike his back.

      Appellant also argues that the Board and ALJ misconstrued the governing

law. The governing law is well-established. To qualify for accidental disability

retirement benefits, the petitioner must establish that a traumatic event occurred

while the petitioner was performing his or her regular or assigned duties. Id. at

213. Our Supreme Court has made clear that the "work effort itself . . . cannot

be the traumatic event." Id. at 211 (emphasis omitted).

      Pulling two inmates apart and pushing one of them into a cell is not a

traumatic event; rather, it is part of appellant's work responsibilities. The ALJ

and Board did not find that there was an unexpected surge of force causing

appellant to fall and strike his back either on metal, concrete, or a bench.

Consequently, we do not discern that either the ALJ or the Board misconstrued

the governing law. Instead, the Board and ALJ did not accept the factual

contentions made by appellant.

      Affirmed.




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