                        NOT FOR PUBLICATION WITHOUT THE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-1611-16T1

ADAM TOOPS,

        Petitioner-Appellant,

v.

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

        Respondent-Respondent.

________________________________

              Argued April 19, 2018 – Decided July 18, 2018

              Judges Simonelli, Haas and Gooden Brown.

              On appeal from the Board of Trustees, Police
              and Firemen's Retirement System, Docket No.
              3-10-049816.

              Patrick P. Toscano, Jr., argued the cause for
              appellant   (The  Toscano   Law  Firm,   LLC,
              attorneys; Patrick P. Toscano, Jr., on the
              brief).

              Robert S. Garrison, Jr., Deputy Attorney
              General, argued the cause for respondent
              (Gurbir S. Grewal, Attorney General, attorney;
              Melissa H. Raksa, Assistant Attorney General,
              of counsel; Robert S. Garrison, Jr., on the
              brief).
PER CURIAM

     Adam Toops appeals from a December 6, 2016 final decision of

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

(Board),     denying   his   application     for   accidental     disability

retirement benefits.     In so doing, the Board adopted the factual

findings of the Administrative Law Judge (ALJ) establishing that

Toops suffered disabling injuries in a 2009 incident, but rejected

the ALJ's legal conclusion that Toops' disability was due to a

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

we agree with the Board, we affirm.

     As background, N.J.S.A. 43:16A-7(1) authorizes an award of

accidental     disability    benefits   to    a    Police   and    Firemen's

Retirement System (PFRS) member provided that:

           the member is 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 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.

     In Richardson v. Board of Trustees, Police and Firemen's

Retirement System, 192 N.J. 189 (2007), the Court clarified the

meaning of the term "traumatic event," and set forth a five-pronged



                                    2                                A-1611-16T1
standard mandating that a pension system member seeking accidental

disability benefits 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

          5. that the member is mentally or physically
          incapacitated from performing his usual or any
          other duty.

          [Id. at 212-13.]

     In November 2013, Toops, then a police officer, applied for

accidental disability retirement benefits based on injuries he

sustained on July 22, 2009, while "climbing over fences and

structures[,]" "searching for armed robbers" in the area.        In the

application, Toops stated that while "attempting to climb over

[the] last fence[,]" his "right arm went numb" and he "had severe

                                 3                              A-1611-16T1
pain."   Toops later sought medical treatment, was diagnosed with

a   cervical    disc   herniation     at       C5-C6   with    radiculopathy,     and

underwent      epidural   injections       and    surgeries,      resulting    in    a

permanent orthopedic disability.

      On December 9, 2014, the Board denied Toops' application for

accidental disability benefits based on the July 22, 2009 incident

and an unrelated January 18, 2011 incident.1                  Initially, the Board

found "no evidence" of Toops' involvement in a July 22, 2009

incident.        The   Board   then    determined         that    although     Toops

established some of the necessary elements under Richardson for

accidental disability benefits in connection with the January 18,

2011 incident, Toops was eligible for ordinary disability benefits

only because "the medical documentation provided indicate[d] that

his disability [was] the result of a pre-existing disease alone

or a pre-existing disease that [was] aggravated or accelerated by

the work effort."         Toops filed an administrative appeal and the

matter was transmitted to the Office of Administrative Law (OAL)

as a contested case.

      During the OAL hearing conducted on November 30, 2015, Toops

testified that he had been employed by the Montclair Police


1
 The January 18, 2011 incident involved Toops slipping and falling
on ice in the parking lot of the Montclair Police Department. He
sustained injuries to his neck, right shoulder blade, and right
arm.

                                           4                                 A-1611-16T1
Department for approximately fourteen years, beginning in 2000.

He spent the first thirteen years as a patrol officer and then was

promoted to a detective.         At approximately 3:00 p.m. on July 22,

2009,   while    wearing   courtroom          attire        rather    than    tactical

clothing,2 Toops was directed along with all other officers to

assist West Orange police in apprehending armed robbery suspects

who fled into their jurisdiction.               Toops responded with another

detective, James Milano.     Once at the scene, Toops was provided a

bullet-proof vest and began canvassing the area.

      The   radio   transmissions        led        Toops    and     Milano   through

backyards, climbing approximately thirty fences in search of the

suspects.   When Toops attempted to climb one fence in particular,

which he described as a six-foot chain link fence, he "slipped on

it several times trying to follow [Milano]."                       Toops eventually

navigated over the fence by using his body, shoulder, and neck.

However, once he got over the fence, he experienced "extreme pain"

in his arm and explained to Milano that, due to the pain, he could

not   continue   the   search.      At       that    point,    Toops    returned      to

headquarters and sought medical treatment for his injuries a few

weeks later.     Although Toops did not initially submit an injury


2
   Toops testified that he was not in uniform and was wearing
normal dress shoes.



                                         5                                     A-1611-16T1
report,3 Milano submitted a report to the department and to the

Board, confirming Toops' account.

     At the hearing, the parties stipulated to Toops being 75%

disabled. The parties also stipulated to the contents of a January

2014 e-mail sent to the Division of Pensions by Captain Scott

Roberson, in his capacity as the head of the Montclair Police

Department's Internal Affairs, discrediting Toops' account.        The

email indicated that contrary to departmental procedures, there

were no incident or injury reports evidencing Toops' involvement

in or sustaining an injury as a result of the pursuit.

     On cross-examination, Toops explained that his name did not

specifically appear in the incident report because the entire

Detective Bureau responded, and his injury report was ultimately

filed internally within the Detective Bureau, not with Roberson.

Toops testified further that Roberson did not respond to the scene

at the time in question and was biased against him because he

disregarded   Roberson's   directive   not   to   file   a   workers'

compensation claim for the injury.     Toops explained that he had

to file a workers' compensation claim because his private insurance

would not cover surgeries for work-related injuries.     In addition,



3
  Toops explained that he did not submit an injury report because
he initially believed the pain stemmed from an unrelated prior
injury.

                                 6                            A-1611-16T1
Toops was cross-examined on other injuries he had sustained while

he was a police officer, including the January 18, 2011 incident

and a November 29, 2001 injury he sustained in a house fire, for

which   he   submitted   an   application   for   disability   retirement

benefits in January 2005 that was later withdrawn.

     In his initial decision issued on January 4, 2016, the ALJ

found Toops' testimony to be "extremely credible and consistent

with other supporting documentation, including Milano's submission

to the . . . Board[.]"        The ALJ rejected Roberson's account as

"not credible" and "not based on any first-hand knowledge of

whether Toops was involved in the incident of July 22, 2009."

Thus, the ALJ found "strong evidence in the record" that Toops

"suffered an injury while performing a canvas . . . in response

to a call for assistance . . . as part of his duties, which left

him disabled."

     Next, relying on Moran v. Board of Trustees, Police and

Firemen's Retirement System, 438 N.J. Super. 346, 354 (App. Div.

2014) and Brooks v. Board of Trustees Public Employees Retirement

System, 425 N.J. Super. 277 (2012), the ALJ determined that "there

was clearly an accident or external event, . . . which caused the

injury to [Toops]."      The ALJ explained that Toops sustained the

injury "while and from performing exactly the task he undertook

and intended to perform: searching an area for suspects of an

                                    7                             A-1611-16T1
armed robbery."           According to the ALJ, "[w]hile the injury was

certainly     an    unanticipated    consequence,      it    appears     to    be    an

unanticipated consequence of strenuous work activity" and was the

result of an accidental occurrence.             Citing Richardson,            the ALJ

concluded that because "the incident of July 22, 2009, which caused

[Toops'] disability . . . was undesigned and unexpected[,]" Toops

"met    his   burden      in   demonstrating    eligibility        for   accidental

disability retirement benefits." Accordingly, the ALJ recommended

reversing     the    Board's     denial   and   awarding         Toops   accidental

disability retirement benefits.

       PFRS filed exceptions and the Board remanded the matter to

the ALJ for additional fact-finding.               Specifically, the Board

found   the   ALJ's       credibility   determination       of    Roberson     to    be

"flawed" because the ALJ never heard Roberson's testimony, despite

his availability.          In addition, the Board remanded for "medical

testimony on behalf of Toops to establish and allocate causation

of disability related to the July 22, 2009, incident."

       On June 21, 2016, the ALJ conducted a second hearing during

which Roberson testified via Skype without objection.                     Roberson

stated that based on the paperwork he had in his possession, there

was no documentation that showed Toops was injured in the July

2009 incident, contrary to departmental protocol requiring the

submission     of    an    injury   report    within   twenty-four        hours      of

                                          8                                   A-1611-16T1
sustaining an injury.     He admitted, however, that Toops was not

under his command, and that he was aware that Milano had witnessed

the injury and that Toops had filed a workers' compensation claim

as a result of the 2009 incident.

     On November 2, 2016, the ALJ issued an initial decision on

the remand, finding that because "Roberson's testimony was based

solely on the documentation which 'should' have been submitted,"

rather than "first-hand knowledge[,]" it "did not provide any

tangible light on whether the event of July 22, 2009 happened."

"[L]eft with the credible testimony of Toops, supported by Milano's

documentation[,]"   the   ALJ   reiterated   his   prior   findings    and

determined that "the conclusion made in the previous [i]nitial

[d]ecision regarding the fact that the incident did occur . . .

remain[ed] unchanged."    As to the medical testimony, the ALJ noted

that PFRS conceded that if the Independent Medical Examiner were

to testify, he would confirm that Toops was 75% disabled as a

result of the July 22, 2009 incident, thereby obviating the need

for medical testimony.

     On December 6, 2016, after considering the ALJ's November 2,

2016 initial decision as well as the exceptions filed by the

parties, the Board adopted the ALJ's factual findings that the

July 2009 incident occurred and that 75% of Toops' total and

permanent   disability    was   directly   attributable    to   the   2009

                                   9                              A-1611-16T1
incident.   However, the Board rejected the ALJ's legal conclusion

"that the incident was undesigned and unexpected" and determined

that Toops was not entitled to accidental disability retirement

benefits under the criteria established in Richardson.          The Board

explained that "the work activity itself was not undesigned or

unexpected, but was in fact strenuous work effort similar to

Cattani [v. Board of Trustees, Police and Firemen's Retirement

System, 69 N.J. 578 (1976)] and did not include an external event."

       The Board elaborated further that

            Toops was performing his normal job duties by
            climbing a six-foot-tall fence in search of a
            suspect when he suddenly felt pain in his
            neck, right shoulder and body.       Pursuing
            suspects was a core duty of his employment,
            and one that is included within the job
            description for a police officer. . . .
            Similar to [Cattani] dragging hoses that were
            too heavy for him, . . . Toops was over
            exerting himself while he was attempting to
            climb the fence. As a result of his physical
            exertions, he was injured performing the
            ordinary duties of his employment and is not
            eligible    for    [a]ccidental    disability
            retirement [benefits].

This appeal followed.

       On appeal, Toops argues that the "Board acted arbitrarily,

capriciously, and unreasonably in concluding that Toops' July 22,

2009    incident    was   not   'undesigned   and    unexpected'"     under

Richardson.        Specifically,   Toops   asserts   "the   Board   ignored

critical facts of record in concluding that 'Toops was engaged in

                                    10                              A-1611-16T1
the normal work effort of climbing a fence' when he was injured[,]"

and "misinterpreted the meaning of 'undesigned and unexpected'"

in "characteriz[ing] Toops' work activity on July 22, 2009 as

ordinary    strenuous    work    effort."      According      to   Toops,      as   a

detective, it was "not part of his ordinary or daily job duties

to participate in manhunts or suspect chases or to scale                    . . .

fences."     Toops argues that the Board's reliance on Cattani "was

seriously misplaced" as "[t]his case is more like Moran . . . ."

We disagree.

      "Our review of administrative agency action is limited."

Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

27   (2011).     Reviewing      courts     presume     the    validity    of    the

"administrative agency's exercise of its statutorily delegated

responsibilities."       Lavezzi v. State, 219 N.J. 163, 171 (2014)

(citation    omitted).     For    those     reasons,    "an    appellate    court

ordinarily     should    not     disturb     an   administrative         agency's

determinations or findings unless there is a clear showing that

(1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was

not supported by substantial evidence."           In re Virtua-West Jersey

Hosp. for a Certificate of Need, 194 N.J. 413, 422 (2008).                     "The

burden of demonstrating that the agency's action was arbitrary,

capricious or unreasonable rests upon the [party] challenging the

                                     11                                   A-1611-16T1
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44

(App. Div. 2006) (citations omitted).

       "[T]he test is not whether an appellate court would come to

the same conclusion if the original determination was its to make,

but rather whether the factfinder could reasonably so conclude

upon the proofs."       Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)

(quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App.

Div. 1985)).       "Where . . . the determination is founded upon

sufficient credible evidence seen from the totality of the record

and on that record findings have been made and conclusions reached

involving      agency    expertise,     the   agency     decision    should       be

sustained."      Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J.

174, 189 (1980) (citation omitted).              That said, appellate courts

review de novo an agency's interpretation of a statute or case

law.   Russo, 206 N.J. at 27.

       Toops    challenges     the    Board's      rejection   of    the     ALJ's

determination     that    he   was    entitled     to   accidental   disability

retirement benefits.       Indeed, an agency's authority to reject and

modify   an    ALJ's    initial   decision    is    limited.    Specifically,

pursuant to N.J.A.C. 1:1-18.6(b),

              [t]he order or final decision rejecting or
              modifying the initial decision shall state in
              clear and sufficient detail the nature of the
              rejection or modification, the reasons for it,
              the   specific   evidence   at   hearing   and

                                       12                                  A-1611-16T1
            interpretation of law upon which it is based
            and precise changes in result or disposition
            caused by the rejection or modification.

We are satisfied, however, that the Board comported with this

legal mandate in its December 6, 2016 decision rejecting the ALJ's

legal conclusion, and correctly determined that Toops' disability

was not the direct result of a traumatic event that was undesigned

or unexpected as contemplated in Richardson, but instead the result

of strenuous work effort similar to Cattani.

     In Richardson, the Court explained, 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."             192 N.J. at 212.           "In

ordinary parlance, an accident may be found either in an unintended

external    event    or . . . an      unanticipated   consequence     of    an

intended external event if that consequence is extraordinary or

unusual in common experience."         Id. at 201 (quoting Russo, 62 N.J.

at 154).    The Court described "[t]he polestar of the inquiry" as

"whether,   during    the   regular    performance    of   [one's]   job,    an

unexpected happening, not the result of pre-existing disease alone

or in combination with the work, . . . occurred and directly

resulted in the permanent and total disability of the member."

Id. at 214.

                                      13                             A-1611-16T1
      In Cattani, the Court reiterated its prior determination that

a "'traumatic event' would ordinarily involve a mishap or accident

involving the application of some kind of external force to the

body or the violent exposure of the body to some external force."

69 N.J. at 586.       The Court concluded that where the disability was

the end result of a pre-existing medical condition, "work effort

alone   whether   unusual     or    excessive,   cannot    be   considered      a

traumatic event, even though it may have aggravated or accelerated

the pre-existing disease."          Ibid.

      There, Cattani, a firefighter, responded to a fire, removed

five lengths of heavy hoses from the engine, and dragged the hoses

into place in order to extinguish the fire.               Id. at 580-81.       At

the time, the fire department was undermanned and required those

on duty to perform additional firefighting duties.              Ibid.     After

the fire was extinguished, Cattani returned to the firehouse and

became temporarily paralyzed in his arms and legs.               Id. at 581.

Ten   days   later,    he   began   having   recurring    episodes   and     was

diagnosed with a basilar artery occlusion secondary to a pre-

existing condition of atherosclerosis and hyperlidemia.              Ibid.

      Cattani filed for accidental disability retirement benefits.

Id. at 582.    The medical proofs demonstrated that his underlying

disease was aggravated by the added strain and effort exerted

during the event in question.          Ibid.     The Board determined that

                                      14                                A-1611-16T1
Cattani    had      not   experienced     a   traumatic      event     and   that   his

condition was the result of his pre-existing disease.                      Id. at 583.

We reversed on the ground that the unusual and excessive work

effort itself was the traumatic event.                   Ibid.    The Supreme Court

reversed      our    decision     and   reinstated        the    Board's     decision,

reasoning that the aggravation of pre-existing disease by any kind

of work effort, usual or unusual, was not a traumatic event within

the meaning of the statute.             Id. at 586.

       Here, we agree with the Board that, like Cattani, scaling

fences while searching for suspects was clearly within the realm

of Toops' duties as a police officer, notwithstanding the fact

that he had been promoted to detective.                  He presented no evidence

that   this    search      was    unusual     or   outside       the   scope   of   his

employment, only that as a detective he was dressed in courtroom

attire rather than tactical clothing.               He also failed to show that

his injury occurred due to some external event other than his

strenuous work effort.           The fence did not collapse or exhibit any

type of defect, but rather, through Toops' own physical exertion

of trying to lift himself over the fence, he sustained a permanent

and disabling injury.            We agree with the Board that sustaining an

injury     under     these    circumstances        was    not     intended     by   the

Legislature to be considered a traumatic event, entitling Toops

to accidental disability retirement benefits.

                                         15                                    A-1611-16T1
     Toops' reliance on Moran is misplaced.              In Moran, we found

an undesigned and unexpected event where a "combination of unusual

circumstances . . . led to [the member's] injury[.]"                438 N.J.

Super. at 354.       Moran, a firefighter, was responding to a report

of a fire in a vacant residence.           Id. at 350.    Moran was part of

the "engine company," the unit responsible for transporting fire

hoses into buildings to extinguish fires, not rescue victims.             Id.

at 349.    A separate unit, the "truck company," was responsible for

forcing entry into a burning structure and rescuing any occupants

therein.     Ibid.     Moran's unit arrived at the scene before the

truck company and discovered victims trapped inside the burning

building.    Id. at 350.       Because they expected the building to be

vacant, Moran's unit did not have the equipment necessary to break

into the building.      Ibid.     As a result, Moran had to use his body

to break down the door and rescue the victims, sustaining a

disabling injury in the process.           Ibid.

     The    Board     denied    Moran's     application    for   accidental

disability retirement benefits because his injury "occurred while

he was conducting one of his expected work-related duties, rescuing

fire victims."      Id. at 353.    The Board also concluded the incident

was not an accident because Moran intentionally threw his body

against the door.      Ibid.    We reversed the Board.      Ibid.   Although

Moran did not suffer a "classic 'accident' in the sense that the

                                      16                             A-1611-16T1
house did not collapse on Moran, nor did he trip while carrying a

fire hose," we found "the combination of unusual circumstances

that led to Moran's injury" was an undesigned and unexpected event.

Id. at 354.    The fact that Moran intentionally broke down the door

did   not   disqualify   him   from   accidental   disability   retirement

benefits because his injury was the result of "an event, or series

of events, 'external' to [him]."           Ibid. (quoting Richardson, 192

N.J. at 212-13).

      The circumstances presented here are clearly distinguishable

from Moran, where the member "encountered an unexpected life-and-

death emergency for which he was carrying no tools[,]" requiring

him to "forc[e] entry with his body," resulting in him suffering

a disabling injury.      Id. at 350-51.      On the contrary, as a police

officer,     Toops'   training    and      responsibilities     undoubtedly

encompassed engaging in foot pursuits for suspects.           We therefore

affirm substantially for the reasons articulated in the Board's

December 6, 2016 decision.

      Affirmed.




                                      17                            A-1611-16T1
