                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1041-13T1




JAMES MORAN,
                                      APPROVED FOR PUBLICATION
     Petitioner-Appellant,
                                         November 25, 2014
v.
                                         APPELLATE DIVISION

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

     Respondent-Respondent.
_____________________________

     Argued October 15, 2014 - Decided November 25, 2014

     Before Judges Reisner, Koblitz and Haas1.

     On appeal from the Board of Trustees, Police and
     Firemen's Retirement System, PFRS #3-10-44221.

     John D. Feeley argued the cause for appellant
     (Feeley & LaRocca, LLC, and The Blanco Law Firm,
     LLC, attorneys; Pablo N. Blanco, of counsel and
     on the brief).

     Eileen S. DenBleyker, Senior Deputy Attorney
     General, argued the cause for respondent (John J.
     Hoffman,   Acting  Attorney   General,  attorney;
     Melissa H. Raksa, Assistant Attorney General, of
     counsel; Nels J. Lauritzen, Deputy Attorney
     General, on the brief).


1
  Judge Haas did not participate in oral argument. However, with
consent of counsel he has joined in this opinion. R. 2:13-2(b).
    The opinion of the court was delivered by

REISNER, P.J.A.D.

    James Moran, a firefighter, heroically saved two victims

from a burning building by kicking in the building's front door.

Although Moran suffered disabling injuries in this incident, the

Board of Trustees of the Police and Firemen's Retirement System

(Board)    denied   his   application    for   an   accidental    disability

retirement pension.       Applying Richardson v. Board of Trustees,

Police and Firemen's Retirement System, 192 N.J. 189, 212-13

(2007), the Board found that Moran's disability was not due to a

traumatic event within the meaning of N.J.S.A. 43:16A-7, because

the incident was "not 'unexpected and undesigned.'"              We disagree

and reverse.

                                    I

                                    A.

    As background, it is helpful to begin with the pension

statute,    as   construed    in   Richardson.        Entitlement    to    an

accidental disability pension requires proof that, "during and

as a result of" performing "his regular or assigned duties," a

member suffered a disabling injury "as a direct result of a

traumatic event."     N.J.S.A. 43:16A-7(1).         To put these terms in

context, we quote the statute's proof requirements:

            the   member is   permanently and  totally
            disabled as a direct result of a traumatic



                                     2                              A-1041-13T1
              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.

              [Ibid.]

       In Richardson, the Court clarified the meaning of the term

"traumatic         event,"      stating       that        "a     traumatic       event     is

essentially        the   same    as   what        we    historically       understood      an

accident to be — an unexpected external happening that directly

causes injury and is not the result of pre-existing disease

alone or in combination with work effort."                             Richardson, supra,

192    N.J.   at    212.     The      Court       found    that    in    using    the    term

"traumatic event," the Legislature did not mean generally to

raise the bar for injured employees to qualify for accidental

disability pensions.            Id. at 210-11.                 Rather, the Legislature

intended "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.     In     making   that

point,    the      Court   noted      that    "some       of     our    cases    failed    to

recognize that critical limitation in purpose and persisted in




                                              3                                     A-1041-13T1
the entirely wrong notion that the term traumatic event was

intended, in itself, to more significantly narrow the meaning of

accident."    Id. at 210-11.

    The   Court      then   set     forth   the   factors     a   pension    system

member must prove to obtain accidental disability benefits:

          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,

          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 usual or
          any other duty.

          [Id. at 212-13 (emphasis added).]

    Prior     to     Moran's      administrative        hearing,    the     parties

stipulated    that    Moran    met    all   of    the   above-cited       criteria,

except one.        They disagreed as to whether the incident that

caused his disability "was undesigned and unexpected."




                                        4                                   A-1041-13T1
                                          B.

      Undisputed       evidence    at     the        hearing     established      that

firefighting duties were divided between two different units,

each of which would arrive at a fire in a different fire truck. 2

Breaking    into     burning   buildings       was    not     Moran's   normal    unit

assignment.       He was part of an "engine company" whose role was

to "take[] the hoses into the [burning] building . . . and put[]

out   the   fire."      A   different     unit,       the    "truck   company,"    was

responsible    for     forcing    entry       into    a     burning   structure    and

rescuing    any    occupants.      The        truck    company    carried   various

special equipment specific to those functions.                        The two units

were supposed to respond to a fire scene at the same time.

      At about 2:00 a.m., Moran's engine company responded to a

fire in what was reported to be a vacant, boarded-up house.

Hence, no one expected that it would be necessary to rescue

anyone inside.         Instead, the plan was to mount a "defensive

attack" to keep the fire from spreading to other buildings.

When Moran started fighting the fire, the truck company had not

yet arrived on the scene.         Moran stated that when he arrived, he

observed a "heavy, heavy body of fire" in the building, and his


2
  At the Office of Administrative Law hearing, most of the facts
were stipulated. Moran testified briefly, as did a fire captain
who had been present at the fire.       The Board presented no
witnesses.



                                          5                                 A-1041-13T1
captain   called      "emphatically    for    a    truck   company    for    the

building."

      As Moran was unrolling the hose toward the building, which

was   engulfed   in    flames,   he   unexpectedly     heard   screams      from

people trapped inside the structure.              He testified that a truck

company would have had special equipment, such as a "[h]ydraulic

ram, a battering ram, [and a] haligon tool with an ax."                       He

testified that he had none of those tools with him and typically

would not have them.         But, because he heard people screaming

inside the building, he used his "shoulder, leg and back" to

break down the door.         He testified that the door "was well

fortified, but [he] eventually did" break through it.

      Although his fire training involved using tools such as a

"hydraulic ram" to break down doors, not forcing entry with his

body, Moran testified that if he had not opened the door, the

people inside would have died.            He also testified that, but for

the unexpected presence of the victims in the burning building,

and the unexpected absence of the truck company, he would not

have tried to open the door.

      A fire captain, who was present at the scene as Moran's

commanding officer, corroborated Moran's testimony.                  On cross-

examination, the fire captain stated that the only tool the

engine company had on its truck which the truck company would




                                      6                                A-1041-13T1
also have had was an "ax."       However, he stated that the ax was

not available to Moran when this emergency presented itself,

because Moran "was grabbing the hose line at the time which [was

what] he was supposed to be doing."

    The    Board    presented   no    evidence    to   contradict   Moran's

proofs    that     he   encountered       an   unexpected   life-and-death

emergency for which he was carrying no tools.           The Board did not

present testimony from any other firefighter that, faced with

the same situation, he or she would have gone back to the truck

and looked for an ax, leaving the fire victims to their fate in

the meantime.      Nor did the Board present evidence that the ax on

the truck was even the appropriate tool to use in breaking down

a fortified door.

    In a lengthy opinion, the administrative law judge (ALJ)

found both Moran and the fire captain to be credible witnesses.

The ALJ found that the incident involved an unexpected situation

which required Moran to respond in a manner unanticipated by his

training and experience.

           [P]etitioner was dispatched to a burning,
           purportedly vacant house as a member of the
           fire   department's   engine   company   that
           advances hoses to extinguish fires and
           relies upon the truck company to provide
           access    and    perform    search-and-rescue
           operations.       Quite   unexpectedly,    as
           petitioner performed his assigned duties and
           prepared an external defensive attack to
           contain the raging blaze, he heard voices



                                      7                             A-1041-13T1
              from within the boarded building.       Also
              unexpectedly,   and  contrary   to  standard
              procedure, the truck company was not on the
              scene.   For the first time in his ten-year
              career as a firefighter, he was confronted
              with a raging fire in a purportedly vacant
              house that actually had occupants trapped
              inside, and the fire squad that provides
              access and performs rescue operations was
              unpredictably absent.   But for that sudden
              and emergent circumstance, he would not have
              used and injured his body in entering the
              building.

       Relying       on     Richardson,       the     ALJ     rejected     the    Board's

argument      that    the    incident       was   not    undesigned       or   unexpected

because it resulted from Moran's intentional act of breaking

down the door.            The ALJ reasoned that Moran was responding to a

"sudden and emergent circumstance" that required him to respond

with    unanticipated            extreme     physical        exertion,     causing      his

injury.

       In    its     decision,      the     Board   adopted      the      ALJ's   factual

findings.       However, the Board rejected his legal conclusions,

reasoning      that       "[s]imply    kicking      in   a    door   or    intentionally

using       one's    back     to    force     entry      does    not      constitute     an

'unexpected happening,' as Mr. Moran's very intent in partaking

in these happenings would necessarily render such happenings to

be expected."

       The    Board       also     reasoned    that,     according        to   the   Civil

Service job description, a fire fighter's job duties included




                                              8                                   A-1041-13T1
rescuing people and, hence, Moran "did intentionally perform a

duty within the scope and performance of his regular duties for

which he had been specifically trained."

             Here, the work activity itself was not
             undesigned or unexpected. Mr. Moran was
             disabled as a direct result of performing
             the work he intentionally set out to do.
             When he heard screams from inside the
             building, he intentionally slammed his body
             against a door in order to force it open.
             These facts do not lend themselves to any
             unexpected activity or accident. . . . Mr.
             Moran's disabling injury, while unfortunate,
             was caused by ordinary and intended, if
             dire, work effort -- not by an undesigned
             and unexpected external mishap.

                                     II

       On this appeal, we defer to the agency's factual findings,

but we owe no deference to its legal conclusions, "particularly

when    'that    interpretation      is     inaccurate         or   contrary     to

legislative     objectives.'"       Russo    v.    Bd.    of    Trs.,   Police    &

Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (quoting G.S. v.

Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J.

161,   170   (1999)).   In   this    case,    we    are    persuaded     that    in

denying accidental disability benefits to a firefighter whose

heroic response to an undesigned and unexpected traumatic event

left him disabled, the Board has misconstrued Richardson and




                                      9                                  A-1041-13T1
reached a result at odds with the legislative intent in adopting

the "traumatic event" standard.3

     As previously noted, the 1964 amendments to the disability

pension statute were not intended to make it generally more

difficult    for   injured     employees       to    obtain     an    accidental

disability   pension.     Richardson,       supra,    192     N.J.   at   210-11.

Rather, the amendments were intended to weed out disabilities

stemming from a member's pre-existing medical condition, even if

the condition was exacerbated by a work incident.                    Id. at 211.

Thus, a firefighter with a heart condition could not collect an

accidental   disability      pension    for    a    disabling    heart     attack

suffered while fighting a fire, and a custodian likewise is not

entitled to such benefits if he suffers a heart attack while

performing his janitorial duties.             See Cattani v. Bd. of Trs.,

Police & Firemen's Ret. Sys. 69 N.J. 578, 586-87 (1978); Russo

v. Teacher's Pension & Annuity Fund, 62 N.J. 142, 154 (1973).




3
  This is not the first time the Board's cramped view of the
Richardson standards has resulted in an unjustified denial of
benefits.    See Russo, supra, 206 N.J. at 26-27 (rejecting
Board's denial of benefits to a police officer, who suffered
emotional trauma after being unexpectedly called upon to rescue
five victims); Brooks v. Bd. of Trs., Public Emps.' Ret. Sys.,
425 N.J. Super. 277, 283-84 (App. Div. 2012) (rejecting the
Board's conclusion that a teacher did not suffer an "undesigned
and unexpected" accident because "he should have anticipated the
dangers involved" in helping students carry a heavy object).



                                       10                                 A-1041-13T1
      In this case, the Board determined that Moran's injury did

not qualify him for an accidental disability pension because it

occurred     while   he     was   conducting       one    of   his    expected    work-

related    duties,        rescuing   fire       victims.       The     Board   further

reasoned that what occurred was not an "accident" because Moran

intended to throw his body against the door.                         We conclude that

the Board's decision misread Richardson, misapplied the statute,

and   took    an     unduly       narrow    view     of    what       constitutes     an

"unexpected and undesigned" traumatic event.

      We harken back to Richardson, in which the Board made a

similar    error     in    denying    an    application        from    a   corrections

officer injured during a scuffle with an inmate:

                  The   Board     contends   that   because
             subduing   an   inmate    is   part   of   the
             anticipated work of a corrections officer
             and   was  not    unexpected  or   unintended,
             Richardson cannot satisfy the traumatic
             event standard. That is a misreading of the
             statute, which requires that the traumatic
             event occur "during and as a result of the
             performance of [the member's] regular or
             assigned duties."      To be sure, when the
             "normal stress and strain" of the job
             combines with a pre-existing disease to
             cause injury or degeneration over time, a
             traumatic   event   has   not  occurred.   See
             Cattani, supra, 69 N.J. at 585; Russo,
             supra, 62 N.J. at 151.         That is quite
             different from saying that a traumatic event
             cannot occur during ordinary work effort.
             Indeed it can.      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



                                           11                                  A-1041-13T1
         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 213-14 (alteration      in   original)
         (final emphasis added).]

    We agree with the ALJ that in this case the traumatic event

must be viewed with a wider lens than the one the Board applied.

The undesigned and unexpected event here was the combination of

unusual circumstances that led to Moran's injury: the failure of

the truck unit to arrive, and the discovery of victims trapped

inside a fully engulfed burning building, at a point when Moran

did not have available to him the tools that would ordinarily be




                               12                         A-1041-13T1
used to break down the door.4                    As a result, he was forced to

carry out his paramount duty to rescue fire victims, by manually

kicking in the door.            Had he not responded immediately to break

down the door, the victims would have died.                                 That was Moran's

unrebutted, credible testimony.

      While this was not a classic "accident" in the sense that

the house did not collapse on Moran, nor did he trip while

carrying     a     fire    hose,     it        was    clearly          an    unexpected       and

undesigned traumatic event that resulted in Moran's suffering a

disabling injury while performing his job.                             Viewed in context,

the injury was also caused by an event, or series of events,

"external" to Moran.            Richardson, supra, 192 N.J. at 212-13; see

Brooks, supra, 425 N.J. Super. at 283.                            By analogy, had Moran

become   hopelessly        trapped    by       fire       on    an    upper    floor    of    the

house,   and      saved    himself        by    jumping          out    a     window   thereby

suffering disabling injuries, he would not be disqualified for

benefits because he "intentionally" jumped.

      Nor    was    this    a    situation           in    which       Moran    should       have

expected to find himself.             We acknowledge that in Russo, supra,

206   N.J.   at    33,    the    Court     reasoned            that    an   ambulance     squad

4
   We reject the Board's backhanded criticism of Moran, in
referring to his "deviating" from his training in failing to use
the ax on the truck.    The Board presented no testimony at the
hearing to dispute the captain's assertion that the ax was not
available to Moran at the time he needed it.



                                               13                                      A-1041-13T1
member disabled by emotional trauma after coming upon a horrible

auto    accident   "will    not    satisfy      Richardson's       'undesigned     and

unexpected' standard because that is exactly what his training

has prepared him for."         Ibid.      However, this case is different.

       The Board, having adopted the ALJ's factual findings, was

obligated     to   render    its     legal      conclusions     based     on     those

findings.     In this case, the ALJ found that Moran's training had

not prepared him to break into burning buildings without the

battering rams and other specialized equipment used by the truck

company.      Indeed,      there    was    no    evidence     to    the   contrary.

Further, as the ALJ found, no equipment was available to Moran

at the moment he had to make the life-or-death decision that

confronted him.       Nothing in the history of the pension statute,

as     exhaustively    reviewed      in    Richardson,       suggests     that     the

Legislature    would    have      intended      to   deny   Moran   an    accidental

disability pension in these circumstances.

       Accordingly we reverse the Board's decision and remand with

direction to grant Moran an accidental disability pension.




                                          14                                A-1041-13T1
