Opinion
DOCKET NO. A-6111-12T1
06-20-2014
JOSEPH FELICE, Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Justin R. White argued the cause for appellant (Testa, Heck, Scrocca & Testa, P.A., attorneys; Mr. White, of counsel and on the brief; Michael L. Testa, Sr., of counsel and on the brief). Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schimmel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Guadagno and Sumners.
On appeal from the Board of Trustees of the Police and Firemen's Retirement System, PFRS No. 3-10-44423.
Justin R. White argued the cause for appellant (Testa, Heck, Scrocca & Testa, P.A., attorneys; Mr. White, of counsel and on the brief; Michael L. Testa, Sr., of counsel and on the brief).
Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schimmel, on the brief). PER CURIAM
Joseph Felice appeals from the August 6, 2013 final administrative determination of the Board of Trustees, Police and Firemen's Retirement System (Board), which adopted the decision of an administrative law judge (ALJ) denying Felice's application for accidental retirement benefits. On appeal, Felice claims the Board and the ALJ erred in determining that the incident that caused injury to Felice was not "undesigned and unexpected." We disagree and affirm.
I.
Felice has been employed by the Department of Corrections as a corrections officer at the South Woods State Prison since 1997. On May 6, 2008, another corrections officer requested Felice's assistance with an inmate who was in the shower area and refused to come out. When Felice ordered the inmate out of the shower, he refused and cursed at the officer. Felice called for backup and three additional officers, including two sergeants and a lieutenant, responded.
The officers spent two or three minutes attempting to convince the inmate to come out of the shower, to no avail. Felice then entered the small shower stall to extract the inmate. The inmate resisted and was "very combative." He attempted to head-butt Felice but missed and struck Felice's nose. After approximately one minute of struggling with the inmate, Felice testified that he and the inmate fell to the floor and the inmate landed on top of him. With the assistance of the other officers, the inmate was subdued.
After the incident, Felice experienced intense pain in his lower back and shooting pain down his right side. He underwent surgery on his back in 2008 and again in 2010. In June 2009, Felice applied for an accidental disability retirement benefit. He claimed he was disabled as a result of the May 6, 2008 incident. The Board denied Felice's application for an accidental disability retirement benefit but granted him an ordinary disability retirement benefit.
Felice appealed and the matter was transferred to the Office of Administrative Law. After a hearing, an ALJ issued an initial decision recommending that Felice be denied an accidental disability retirement benefit. Central to the ALJ's determination was his finding that Felice's testimony conflicted with the testimony of Sergeant David W. Dilks, one of the officers who was present during the May 6, 2008 incident. The ALJ weighed the conflicting testimony and written reports submitted by other officers who were present and found that the testimony of Felice was "incredible and unbelievable":
The totality of the written documents supports the testimony offered by Dilks at
the hearing. Dilks only saw "a lot of twisting and turning by everyone." The written statements bear out the veracity of Dilks' description.
Petitioner's description of the events is similar to the fact pattern of Richardson v. Board of Trustees, Police and Firemen's Retirement System, Id., currently the primary precedent on the issue of accidental disability. If I credit petitioner's testimony, then the similarity between his fact pattern and that in Richardson could potentially result in petitioner prevailing. But given that no other testimony or evidence in this case reflects petitioner falling in the shower, I FIND petitioner's testimony overly convenient. If Dilks' testimony or any of the written reports had specified that petitioner fell to the floor with Hempstead on top of him as he described, I might be more inclined to credit his account of the event. But neither Dilks nor the written documents offer such support.
There is no doubt that petitioner was actively engaged in restraining Hempstead, and there is no question that he was injured in the process. But, given the absence of any corroborating testimony or evidence, I FIND incredible and unbelievable his contention that his injury resulted from falling to the floor with Hempstead on top of him. I am satisfied that Dilks offered the more credible testimony, and that petitioner was injured while doing "a lot of twisting and turning."
On August 6, 2013, the Board adopted the ALJ's determination. On appeal, Felice presents the following arguments:
POINT I
THE PFRS BOARD'S DENIAL OF AN ACCIDENTAL DISABILITY PENSION WAS IN CONTRAVENTION OF SETTLED LAW.
A. THE TRAUMATIC EVENT THAT DISABLED JOSEPH FELICE WAS UNDESIGNED AND UNEXPECTED.POINT II
B. THE RICHARDSON STANDARD IS NOT INAPPROPRIATELY INCLUSIVE.
THE EXACT MECHANICS OF THE TRAUMATIC EVENT THAT CAUSED DISABILITY SHOULD NOT AFFECT THE OUTCOME OF THIS CASE.
A. THE ALJ OVERLOOKED EVIDENCE THAT MAKES THE FACTS OF THIS CASE ESSENTIALLY INDISTINGUISHABLE FROM THE FACT OF RICHARDSON.
B. JOSEPH FELICE'S ENTITLEMENT TO AN ACCIDENTAL DISABILITY PENSION SHOULD NOT TURN ON WHETHER OR NOT HE IMPACTED THE FLOOR.
II.
Our review of an administrative agency determination is limited. In re Carter, 191 N.J. 474, 482 (2007); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We will not upset the ultimate determination of an agency "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007).
Here, the Board adopted the ALJ's findings of fact and conclusions of law in denying Felice's application for accidental disability retirement benefits. We accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing, Board of Education v. Neptune Township Education Ass'n, 144 N.J. 16, 31 (1996), and we are obligated to give deference to credibility determinations made by the fact-finder, Doering v. Board of Review, 203 N.J. Super. 241, 245 (App. Div. 1985); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
Given the considerable deference we owe to the credibility determinations of the ALJ, who had the opportunity to hear the "live testimony" of the witnesses and consider the exhibits, see Clowes v. Terminix International, Inc., 109 N.J. 575, 587-88 (1988), we conclude there was sufficient, competent, and credible evidence in the record to support the ALJ's decision to reject Felice's testimony as not credible.
Although we are not bound by the Board's interpretation of a statute or its determination of a strictly legal issue, see Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93 (1973), if substantial evidence supports the agency's decision, we "may not substitute [our] own judgment for the agency's even though [we] might have reached a different result," Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992) (citing Clowes, supra, 109 N.J. at 587).
In rejecting Felice's claim for accidental disability benefits, the ALJ relied on the test announced by the Court in Richardson, supra, 192 N.J. at 212-13:
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,3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
b. undesigned and unexpected, and
c. caused by a circumstance external to the member (not the result of preexisting disease that is aggravated or accelerated by the work);
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.
The ALJ concluded that the May 6, 2008 incident was not "undesigned and unexpected," and rejected Felice's claim that he fell to the floor with the inmate landing on top of him. In reaching this conclusion, the ALJ relied on Sergeant Dilks's testimony and on written reports of the May 6 incident from Dilks, Lieutenant Morris, and Felice himself, none of which mention that Felice fell.
Felice was injured while attempting to restrain an inmate. Dilks testified that corrections officers encounter inmates who resist orders "fairly often" and "with some regularity." Even Felice testified that he had to deal with inmates who resist arrest "[o]n a regular basis" although he claimed this was the first time he had to restrain an inmate in the shower.
Clearly, restraining inmates is a regularly occurring duty undertaken by corrections officers. The conclusion of the ALJ adopted by the Board that the May 6 incident was not undesigned and unexpected is supported by sufficient and credible evidence in the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007).