Opinion
DOCKET NO. A-2791-11T1
03-27-2013
CHRISTOPHER ONESTI Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Ridgway & Stayton, L.L.C., attorneys for appellant (Herbert J. Stayton, Jr., on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief; Robert H. Stoloff, Assistant Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from the Board of Trustees, Police and Firemen's Retirement System.
Ridgway & Stayton, L.L.C., attorneys for appellant (Herbert J. Stayton, Jr., on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief; Robert H. Stoloff, Assistant Attorney General, on the brief). PER CURIAM
Petitioner Christopher Onesti, a former New Jersey Transit police officer, appeals from a December 13, 2011 final decision of the Board of Trustees of the Police and Firemen's Retirement System (Board or agency). For the reasons that follow, we reverse and remand this case to the Board for reconsideration.
In 2006, during a firearms qualification test at a police department firing range, Onesti injured his hand while using a staple gun to reattach a paper target. The injury required several surgeries on his hand, and he was eventually diagnosed as being unable to perform his duties as a police officer. He applied for accidental disability retirement benefits. On February 9, 2010, the Board agreed that Onesti was totally and permanently disabled from performing his regular assigned duties, N.J.S.A. 43:6A-7, but denied accidental disability retirement on these grounds: "his disability is not the direct result of a traumatic event, as the incident described is not undesigned and unexpected and . . . his disability is the result of his willful negligence." The Board granted ordinary retirement benefits.
Onesti appealed that decision and, after a testimonial hearing, the Administrative Law Judge (ALJ) noted that the record contained two different explanations for the injury. There was no dispute that Onesti was injured at the firing range. Onesti testified that he accidentally held the staple gun the wrong way. Thinking that the staple would come out of the right side of the staple gun, he held the gun with his right hand on the trigger mechanism and his left hand stabilizing the gun on the left side. However, the staple unexpectedly came out of the left side of the gun and went into his palm and left ring finger. An accident report, prepared by his supervisor the day after the accident, indicated that Onesti had been holding his left hand behind the target to stabilize it as he was stapling, and a staple accidentally went into his hand. However, the supervisor testified that, whichever version of events was correct, there was no evidence that Onesti intentionally injured himself.
Onesti testified that he briefly looked at the staple gun before using it, but he was under pressure to act quickly because a "cease fire" had been called when his target fell down. Therefore, while he was re-attaching the target, he was delaying all the other officers on the range from completing their shooting tests. After this incident, the range policy was changed, and individual officers were no longer required to re-attach their own targets during their qualifying tests.
The parties' arguments to the ALJ focused on language in Richardson v. Board of Trustees, 192 N.J. 189 (2007), concerning whether the injury resulted from an event that was "undesigned and unexpected." Id. at 212-13. The Board's attorney argued that the injury was not "undesigned and unexpected" because petitioner had never used the staple gun before and failed to examine how it worked before using it. The ALJ rejected this argument, reasoning that even if Onesti had been negligent, the incident was an accident which produced "a totally unexpected consequence from petitioner's perspective." The ALJ found that "there is absolutely no evidence that the resulting wound was willfully self-inflicted." He found "no evidence of any willful negligence on the part of petitioner, which would justify a finding that this accident was caused by petitioner's reckless indifference to his own safety."
In a December 13, 2011 decision, the Board rejected the ALJ's determination. The Board reasoned that Onesti had been willfully negligent because he either fired the staple gun without first examining it to see how it fired, or he negligently placed his hand on the back of the cardboard target when using the staple gun. The Board concluded that "Mr. Onesti was negligent in his use of equipment and his failure to examine the staple gun to see where the staple discharged made his injury reasonably foreseeable and thus not undesigned and unexpected."
To obtain accidental disability retirement benefits, Onesti was required to prove that he was "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 [his] willful negligence." N.J.S.A. 43:16A-7(1). In Richardson, supra, the Court explained that, to establish a traumatic event, it was not always necessary for a worker to prove that he was the victim of "a great rush of force" such as a roof collapsing on him. Instead, the Court clarified that the term "traumatic event" essentially referred to an "accident":
[T]he traumatic event standard will also be met by a work-connected 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). By that paradigm shift, we return to what we believe the Legislature intended in adopting the language of N.J.S.A. 43:16A-7 -- to excise disabilities that result from pre-existing disease alone or in combination with work effort from the sweep of the accidental disability statutes and to continue to allow recovery for the kinds of unexpected injurious events that had long been called "accidents."
[Id. at 192 (emphasis added).]
The Court emphasized that "a member who is injured as a direct result of an identifiable, unanticipated mishap has satisfied the traumatic event standard." Id. at 213.
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.
[Id. at 214.]
After Richardson, an issue arose over the meaning of the term "undesigned and unexpected." In Brooks v. Board of Trustees, 425 N.J. Super. 277 (App. Div. 2012), which was decided after the Board decided Onesti's case, we further construed that phrase. Brooks, a school custodian, was injured on the job after he asked several students to help him lift a three-hundred-pound weight bench onto a flatbed truck. The students were holding one end of the bench while Brooks held the other. When the students abruptly dropped their end of the bench, Brooks suffered a debilitating shoulder injury. Id. at 279. The Board adopted an ALJ's decision that the accident was not undesigned and unexpected, because Brooks should have anticipated that he could be injured as a result of letting a group of inept teenagers help him lift a heavy bench.
In our opinion, we noted the Richardson Court's concern that "the term 'traumatic event' had 'mistakenly been given a more and more parsimonious and idiosyncratic interpretation that is inconsistent with the legislative intent underlying the statute.'" Id. at 282 (quoting Richardson, supra, 192 N.J. at 211). In that context, we rejected the agency's narrow construction of the term, noting that Richardson cited a number of ordinary work-related accidents that, although the result of a worker's negligence, could qualify as traumatic events:
The ALJ, whose recommended decision the Board adopted, reasoned that because appellant took charge of carrying the weight bench into the gymnasium with the assistance of the students, he should have anticipated the dangers involved in this work, including the risk that the bench would fall on his foot, and therefore, his accident was not "undesigned and unexpected." However, it could as well be said that a librarian who re-shelves books should reasonably anticipate that if this activity is not conducted properly, the book shelf could fall, that a social worker who transports a child to court should anticipate that if she is not careful getting into or out of her car, she could catch her hand in the car door, and that a gym teacher who does not look at the ground while walking should anticipate that he or she could trip on a riser or other object. Yet the Court recognized that such work-connected accidents could constitute "traumatic events." Thus, it is clear that an accident can be "undesigned and unexpected" under the Richardson tests even though it may be concluded in retrospect that the employee could have anticipated the risk of such an accident and taken steps to avoid it.We further concluded that an employee's "simple negligence," as opposed to "willful negligence," was not a disqualifying factor. See ibid.
[Id. at 284.]
In this case, the Board's decision largely turned on its conclusion that Onesti's injury did not stem from an accident that was undesigned and unanticipated. On this appeal, the Board's brief acknowledges that Brooks renders the agency's decision on that issue "unsustainable," but argues that Onesti's conduct was "recklessly indifferent" to his own safety. Brooks addressed that issue as well, but the Board did not have the benefit of that opinion when it rendered its decision. We therefore believe it is appropriate to remand this matter to the Board for reconsideration in light of Brooks. While we do not retain jurisdiction, we expect that the Board will give this matter its prompt consideration in light of the time that has passed since Onesti's 2006 injury.
Reversed and remanded to the Board for reconsideration. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION