                                NOT FOR PUBLICATION WITHOUT THE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-3491-17T2


MICHAEL LUISI,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
_______________________________

                    Submitted April 4, 2019 – Decided June 24, 2019

                    Before Judges Whipple and Firko.

                    On appeal from the Board of Trustees of the Public
                    Employees' Retirement System, Department of the
                    Treasury, PERS No. 2-XX-XXXXXXX.

                    Alterman & Associates LLC, attorneys for appellant
                    (Jeffrey S. Ziegelheim, Stuart J. Alterman and Timothy
                    J. Prol, on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Austin J. Edwards, Deputy
            Attorney General, on the brief).

PER CURIAM

      Petitioner, Michael Luisi, appeals from the Board of Public Employees'

Retirement System's (Board) February 26, 2018 denial of his application for

accidental disability retirement benefits. We affirm.

      Petitioner was a laborer for the City of Brigantine. On April 20, 2010, his

supervisor directed him to transport concrete mix to a stone recycling center.

This was the first time petitioner drove this particular dump truck, and, when he

arrived at the recycling center, he noticed the truck's tailgate locking mechanism

(the claws) was stuck. A recycling center employee helped him disengage the

claws and appellant was able to deliver the concrete. Petitioner informed his

supervisor of the problem, and his supervisor used a backhoe to bend the rods

attached to the claws. Thinking the claws were fixed, petitioner took another

load of concrete to the recycling center.

      Back at the recycling center, petitioner raised the truck's bed and the left

set of claws broke off, which caused the left side of the truck's tailgate to fall

off. Recycling center employees refused to help petitioner lift the tailgate back

onto the truck so petitioner decided to do it himself. The tailgate weighed, in

petitioner's estimation, about "five-to-six hundred pounds." Petitioner tried to

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                                        2
lift the tailgate several times, and, on the final attempt, felt a "pop" in his

shoulder and two "pops" in his back. Petitioner suffered a cerebrovascular

accident and traumatic back and shoulder injuries.

      Petitioner applied for and was denied ordinary and accidental disability

benefits. Petitioner had suffered a number of work-place injuries over the years.

He also suffered from back and shoulder pain both before and after the 2010

accident and underwent a total shoulder replacement in 2012. The Board found

that petitioner was orthopedically disabled, but was ineligible for ordinary

disability benefits because he had yet to complete the minimum number of years

of service. His accidental disability benefits claim for the 2010 injury was

denied because the Board found the accident was not "undesigned and

unexpected" and was the result of a pre-existing disease. 1 Petitioner appealed

to an administrative law judge (ALJ).

      The ALJ disagreed with the Board. After hearing testimony from two

physicians who examined appellant, the ALJ found petitioner was totally and

permanently disabled, and his 2010 injury was not caused by a pre-existing



1
  Petitioner's accidental disability benefits claim pertaining to a 2002 workplace
injury was denied because it was filed out-of-time. On appeal, petitioner only
contests the denial of benefits related to his 2010 injury.


                                                                          A-3491-17T2
                                        3
disease. Those findings were not disputed by the Board and are not an issue on

appeal.

      What is an issue in this appeal is the ALJ's finding the event was

"undesigned and unexpected" because petitioner was never trained how to

operate that particular truck and petitioner thought his supervisor fixed the

tailgate. The Board overturned this finding because there was no "external

happening" or "unanticipated mishap" that caused petitioner's injury. Rather,

the Board found petitioner "was injured doing exactly what he intended to do—

pulling and lifting a truck tailgate." Thus, the Board denied petitioner's claim

for accidental disability benefits. This appeal followed.

      We will not overturn an administrative action in the absence of a "showing

that it is arbitrary, capricious or unreasonable, or that it lacks fair support in the

record." Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215,

223-24 (2009) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).                 An

agency's findings of fact "are considered binding on appeal when supported by

adequate, substantial and credible evidence[.]" In re Taylor, 158 N.J. 644, 656

(1999) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484

(1974)).    However, we owe no deference to an administrative agency's




                                                                              A-3491-17T2
                                          4
interpretation of legal precedent. Bowser v. Police & Firemen's Ret. Sys., 455

N.J. Super. 165, 171 (App. Div. 2018).

      N.J.S.A. 43:15A-43 affords additional disability benefits to state workers

who become "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[.]" In Richardson v. Board of Trustees, Police & Firemen's

Retirement System, 192 N.J. 189, 212-13 (2007), our Supreme Court created a

five-part, conjunctive test to determine when an injury was a direct result of a

traumatic event. An applicant must prove:

            (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




                                                                         A-3491-17T2
                                         5
            (5) that the member is mentally or physically
            incapacitated from performing his usual or any other
            duty.

            [Ibid.]

At issue here is whether petitioner's injury was a traumatic event that was

"undesigned and unexpected" and "caused by a circumstance external" to him.

We agree with the Board that it was not.

      Appellant asks us to take a broad view of an undesigned and unexpected

event and argues as long as the event is a "mere happening occurring during an

ordinary work effort," it is undesigned and unexpected. Appellant compares his

case favorably to Brooks v. Board of Trustees, 425 N.J. Super. 277 (App. Div.

2012), where a 300 pound weight bench dropped on a school custodian; Moran

v. Board of Trustees, Police & Firemen's Retirement System, 438 N.J. Super.

346 (App. Div. 2014), where a firefighter was injured after breaking down a

door to a burning building; and Mount v. Board of Trustees, Police & Firemen's

Retirement System, 233 N.J. 402 (2018), where a hostage negotiator

experienced a traumatic event.

      Richardson defined "external" to mean an influence outside the actor's

control or unrelated to a pre-existing condition. 192 N.J. at 212 (discussing the

idea of an external force as an "external influence or cause outside the member


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                                       6
himself. . . . [N]ot an affirmative requirement of extreme violence.").

Richardson provided several examples of external events, each of which would

be traumatic under the statute: "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." Id. at 214.

      In Brooks, a school custodian and several students were carrying a 300-

pound weight bench when the students suddenly dropped it. 425 N.J. Super. at

279-80. The custodian suffered a shoulder injury and we concluded he was

entitled to accidental disability benefits.    Id. at 285.   We explained the

custodian's injury was caused by an external force (the weight bench) and by an

unintended event (the students suddenly dropping it). Id. at 283-84. Even

though it was arguably foreseeable the students were not reliable helpers, "the

fact that an employee's simple negligence may have been a contributing cause

of an accident is not disqualifying." Id. at 284.

      In Moran, a firefighter was injured after using his body to break down a

door to a burning building because he heard voices yelling from inside. 438 N.J.

Super. at 349-50. The firefighter was part of an engine company, whose job was

to take hoses to the burning building; whereas members of the truck company


                                                                         A-3491-17T2
                                        7
had equipment to break down doors. Ibid. However, the truck company was

late and the firefighter felt it was his duty, despite not having the proper

equipment, to attempt a rescue. Id. at 350. We determined the firefighter's

injury was caused by an undesigned and unexpected event because the

firefighter faced unusual circumstances, such as the truck company's delay, the

presence of victims in the building, and the lack of proper tools to break down

the door. Id. at 354. "While this was not a classic 'accident' in the sense that

the house did not collapse on [the firefighter], nor did he trip while carrying a

firehose . . . the injury was . . . caused by an event, or series of events, 'external '

to [the firefighter]." Ibid.

      One of the applicants in Mount was a detective and FBI-trained hostage

negotiator performing work for a township police department. 233 N.J. at 4 13.

Hostage negotiators are trained to know a special weapons and tactics (SWAT)

team may, without warning, elect to confront a hostage-taker. Id. at 413-14.

During a call, the detective tried to coax a hostage-taker into laying down his

weapon. Id. at 414-15. Without warning, a SWAT team entered the house and

killed the hostage-taker while still on the phone with the detective. Id. at 416.

The experience led to the detective's diagnosis with post-traumatic stress

disorder. Ibid. Our Supreme Court held the event was neither undesigned nor


                                                                               A-3491-17T2
                                           8
unexpected, because the detective, based on his training, should have known it

was possible (if not probable) the SWAT team would kill the hostage-taker. Id.

at 430-31.

      The common thread through these examples is that an accident is an event

caused by an action, force (literal or circumstantial), or object outside the

injured's control. This definition necessarily excludes injuries caused by the

actor's pure physical exertion. Here, petitioner was doing exactly what he

intended to do by lifting the tailgate and was injured by a force within his own

control. Therefore, his injury was not caused by an undesigned or unexpected

external circumstance.

      This case is distinguishable from Brooks and the examples provided in

Richardson because, in each of those cases, a force or object outside the actor's

control caused the injury. Although both petitioner and the custodian in Brooks

were injured lifting heavy objects, the custodian sustained an injury because the

students dropped their end of the weight bench. Here, petitioner was the only

person attempting to lift the tailgate. Moreover, petitioner already knew the

tailgate was broken and how heavy it was before he was injured.

      Petitioner's reliance on Moran and Mount is not persuasive. The defective

tailgate did not present an unusual set of circumstances like in Moran. Petitioner


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                                        9
faced no dire consequences if he did not fix the tailgate and was under no duty

to attempt to fix it by himself. Mount was premised on the fact that the detective

should have expected the hostage-taker to be killed. Here, petitioner did not

need to be specially trained to know the tailgate was too heavy to lift, especially

considering he made several unsuccessful attempts to lift it before sustaining an

injury.

      Affirmed.




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