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

• Decision Date: 24 March 1976
• Citation: 355 A.2d 625,69 N.J. 578
• Parties: Joseph J. CATTANI, Appellant-Respondent, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Appellant.
• Court: New Jersey Supreme Court

Page 578

69 N.J. 578

355 A.2d 625

Joseph J. CATTANI, Appellant-Respondent, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM Respondent-Appellant.

Supreme Court of New Jersey.

Argued Nov. 18, 1975.

Decided March 24, 1976.

Erminie L. Conley, Deputy Atty. Gen., for respondent-appellant (Stephen Skillman, Asst. Atty. Gen., of counsel, William F. Hyland, Atty. Gen., attorney).

Ira C. Miller, Trenton, for appellant-respondent (Pellettieri & Rabstein, Trenton, attorneys).

The opinion of the Court was delivered by

SULLIVAN, J.

Joseph J. Cattani, claimant herein, is a retired fireman who is totally and permanently disabled from performing firefighting duties. His application for accidental disability retirement under N.J.S.A. 43:16A--7 was denied by the Board of Trustees, Police and Firemen's Retirement System on the ground that his disability was unrelated to a traumatic event occurring in the performance of his duties. Cattani appealed and, following an administrative hearing, the Board of Trustees affirmed its denial of the application, noting that Cattani's ordinary disability retirement, previously granted, 'will of course continue.' ¹

Cattani appealed to the Appellate Division which, with one judge dissenting, reversed the Board's decision and ordered that Cattani's application be granted. The Board of Trustees appeals to this Court. R. 2:2--1(a)(2). We reverse and reinstate the Board's decision denying the application for accidental disability retirement.

Cattani was employed as a fireman by the City of Trenton and, on the date in question, was attached to Engine Company No. 7 which consisted of a 'pumper' normally manned by five men. On June 19, 1971 the Company responded to a two-alarm fire. It had only three firemen in its crew at the time, as one man was on vacation and, after the men had reported in, a second was temporarily assigned to another company as acting captain. Manpower shortage was not unusual in the fire department, particularly during the summer period when vacations were being taken. This undermanning of fire companies, however, required those on duty to perform additional firefighting work.

At the scene of the fire, Cattani, assisted by the company captain, removed five lengths of hose, each of which weighed about 75 pounds, from the engine. Cattani then dragged the hose into place and played water on the fire. The company captain assisted in this latter operation for a short while. In order to get at the fire, Cattani had to carry a section of hose up to the roof of an adjoining building where he continued to play water on the fire. He was also required to rip open the front of the building to uncover the burning areas. He then returned to the ground and resumed his fire hose activity there. During this period he felt nauseous and dizzy and had to be administered oxygen before returning to his duties.

When Cattani returned to the firehouse some six and one-half hours later, he became temporarily unable to move his arms and legs. He was taken to the hospital, examined by a doctor and released, he having regained the use of his arms and legs in the interim.

Some 10 days after the fire, Cattani began to have recurring episodes of paralysis of his arms and legs. Finally, on September 9, 1971 he was admitted to the University of Pennsylvania Medical Center. He remained there for about one month and was discharged with a diagnosis of basilar artery occlusion secondary to a preexisting condition of atherosclerosis and type IV hyperlipidemia. Basilar artery occlusion is an obstruction of one of the major blood vessels leading to the brain, a slow, chronic, progressive type of disorder. Hyperlipidemia is an increased amount of lipids, fats in the blood stream, and causes hardening of the arteries. Since his discharge, Cattani has remained under periodic medical supervision and takes an anticoagulant daily.

In November 1971, Cattani, on his doctor's advice, returned to light duty in the fire department. On August 4, 1972 the fire department, on behalf of Cattani, filed an application for ordinary disability retirement and, on September 1, 1972, he was placed on involuntary retirement. His application for accidental disability retirement followed. ²

The statute involved, N.J.S.A. 43:16A--7, in paragraph (1) provides that a member of the retirement system in service

'* * * may be retired * * * on an accidental disability retirement allowance; provided that the medical board, after a medical examination of such member, shall certify 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 * * *.'

Paragraph (4) of the same section states:

'Permanent and total disability resulting from a cardiovascular, pulmonary or musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.'

The medical proofs submitted at the hearing described Cattani's condition, its symptoms and its severity. Dr. Leavey, the medical doctor for the Board of Trustees, expressed the opinion that Cattani's underlying disease could have been aggravated and rendered symptomatic by the added strain and effort of the events of June 19, 1971, but that it was not caused by them. Dr. Rowen, Cattani's medical expert, agreed with the diagnosis of Cattani's preexisting condition. He said that the stress and strain of Cattani's activities on June 19 probably increased the clotting mechanism in his blood and thus brought about the final closing of the basilar artery. However, he admitted that the prognosis for persons suffering from a condition similar to Cattani's was poor, and that such a person could suffer an episode, such as Cattani did, at rest without experiencing strain.

The hearing officer, whose report was adopted by the Board of Trustees, found that Cattani was totally and permanently disabled from performing firemanic duties but that his disability was not 'a direct result' of his firefighting activities on June 19; rather, he found that Cattani was disabled by reason of basilar arterial occlusion, atherosclerosis and hyperlipidemia. He also found that Cattani's firefighting activities on June 19 did not constitute a 'traumatic event' within the meaning of the statute.

In reversing this ruling, the Appellate Division held that the work effort of June 19 was a traumatic event since it was both unusual and excessive, and that the disabling condition (acute thrombosis of the basilar artery) was the direct result of that unusual and excessive work effort.

The development of the present statutory provisions for accidental disability retirement, common to many of our public employee pension statutes, has been discussed in Russo v. Teachers' Pension and Annuity Fund, 62 N.J. 142, 299 A.2d 697 (1973); Shea v. Board of Trustees, 116 N.J.Super. 348, 282 A.2d 415 (App.Div.1971); Hillman v. Bd. Trustees, Public Employees' Retirement Syst., 109 N.J.Super. 449, 263 A.2d 789 (App.Div.1970); Titman v. Bd. Trustees Teachers' Pens. & An. Fund, 107 N.J.Super. 244, 258 A.2d 31 (App.Div.1969).

Prior to 1964 the pension act in question provided for accidental disability retirement upon certification by the medical board that

'* * * the natural and proximate cause of such disability was an accident met in the actual performance of duty * * *.' L.1959, c. 158, pp. 628--629, § 1.

In construing this provision a number of cases applied workmen's compensation concepts to the terms 'accident' and 'natural and proximate cause.' Particularly with regard to a person suffering from a preexisting progressive disease, who became disabled, it was held that the requirement of causation was satisfied by showing that the actual work effort, whether or not unusual, materially contributed to the precipitation, aggravation or acceleration of the underlying disease. Fattore v. Police and Firemen's Retirement System of New Jersey, 80 N.J.Super. 541, 194 A.2d 363 (App.Div.1963).

This liberal application of the statute brought a legislative response. In 1964 N.J.S.A. 43:16A--7 was amended to provide that accidental disability retirement would only be granted if the medical board certified that:

'(1) * * * 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 * * *.'

At the same time there was added to the same section the provision that

'(4) permanent and total disability resulting from a cardiovascular, pulmonary or musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.'

The legislative purpose was clear. These statutory changes were intended to make the granting of an accidental disability pension more difficult. We noted in Russo, supra, 62 N.J. at 151, 299 A.2d 697, quoting from Titman, supra, that the words 'traumatic event' were a significant departure from the term 'accident' previously used, plainly indicating that the Legislature did not intend that the workmen's compensation concept of 'accident' was to be applied to an accidental disability pension statute.

In Hillman, supra, 109 N.J.Super. at 460, 263 A.2d 789, a similar amendment to the Public Employee's Retirement System was held to reject the concept that an 'accident' can be found in the impact of ordinary work effort upon a preexisting progressive disease.

Hillman sought to give some definition to the new statutory term by stating that, in determining whether there truly was a traumatic event, it was important that (a) the event be identifiable as to time and place, (b) the injury or disability resulted directly from it, and (c) the event was undesigned, unexpected and unusual. By way of Dicta it also suggested that a traumatic event could be...