SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2891- 21 ANGEL MENDEZ, Petitioner-Appellant,

v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.

____________________________

Argued January 22, 2024

– Decided February 2, 2024 Before Judges Marczyk and Vinci. On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PFRS No. xx3001. Herbert J. Stayton, Jr. argued the cause for appell a nt (Stayton Law, LLC, attorneys; Herbert J. Stayton, J r., on the brief). Juliana C. DeAngelis, Legal Counsel, argued the cau se for respondent (Nels J. Lauritzen, Deputy Director of Legal Affair s, attorney; Juliana C. DeAngelis, on the brief). NOT FOR PUBLICATION WITHOUT THE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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2891

- 21

PER CURIAM Petitioner Angel Mendez appeals from the April 13, 2022 final agency decision of the Board of Trustees of the Police and Firemen's Retirement System (the "Board") denying his claim for accidental disa bility retirement benefits under N.J.S.A. 43:16:A-7(1). Based on our review o f the record and the applicable principles of law, we affirm. Mendez was employed as a firefighter by the Camden City Fire Department beginning in April 2006. According to M endez, on March 25, 2017, while responding to a fire, he injured his left sho ulder while unloading or "stretching" a four-inch supply line from the fire truck "going towards the [fire] hydrant" to connect the supply line to the hydrant. Mendez testified "as [he] was stretching [the supply line he] got jerked back and as [he] got jerked back [his] left arm went back and [he] felt a sharp pain on [his] left arm . . . ." When asked what caused him to be jerked back, Mende z responded, "[a]pparently a lump sum of the four[-]inch supply line that was sitting on the hose bed came down on the section I was stretching causing it to get jammed . . . ." Mendez "guess[ed] one of the coupl ings got caught or something." He "believe[d] . . . [the supply line] must[have] been stored incorrectly." Mendez testified it was unusual for a hose to be stored incorrectly.3 A- 2891

- 21

According to Mendez, when a hose is stored correctl y it comes out one layer at a time, and it was unusual for "a large pile of hos e to come down like that." After returning to the fire station on the day of t he incident, Mendez completed and signed an injury report in which he s tated, "[firefighter] hurt his left shoulder while repacking [four-inch] hose." I n the supervisor's report section of the injury report, the fire captain wrot e, "[t]he firefighter stated that while repacking the [four-inch] hose he felt and he ard something pop in his left shoulder." Mendez received three months of formal firefighter training before assuming his position and received additional train ing every work shift. He was trained on "[l]oading hose beds, unloading hose bed s, hooking up hydrants," and "[s]tretching hose lines." In his years as a firef ighter, he responded to "hundreds" of fires. On May 30, 2018, Mendez filed an application for ac cidental disability retirement benefits. The disability comments secti on of the application states, "[a]s a result of attempting to remove a [four-]inc h supply line that was improperly stored on the hose bed I suffered a seve re shoulder injury." On October 19, 2018, Mendez underwent a medical disabi lity examination. The "description of accident" section of the disability evaluation report prepared4 A- 2891

- 21

following that examination states, "[m]ember was re packing a [four-inch] hose and felt a pop in his left shoulder." On December 11, 2018, the Board denied his applicat ion and awarded ordinary disability benefits because "the event tha t caused [his] disability [was ] not undesigned and unexpected." The Board also det ermined Mendez was totally and permanently disabled as a direct result of the March 25, 2017, incident. After Mendez contested the Board's denial, a hearin g was conducted in the Office of Administrative Law. Mendez was the o nly witness who testified. Following the hearing, the Administrative Law Judge ("ALJ") affirmed the Board's decision in a written decision. The ALJ fo und "the facts are unclear as to what happened on March 25, 2017." The ALJ deter mined Mendez's testimony was not convincing and noted "he himself did not ap pear convinced" of what happened because "he could not articulate what occu rred on that date." The ALJ specifically recounted Mendez testified "'apparentl y' the accident was caused by a 'lump sum of the . . . supply line,' he 'guess[ed ]' one of the couplings got caught or something, and he 'believe[d]' there was a lump sum of hose." The ALJ also found Mendez's testimony was inconsistent with the injury report he signed on the day of the incident and the October 19, 2018, d isability evaluation report,5 A- 2891

- 21

both of which state Mendez was injured while "repac king" the hose, not "stretching" it from the truck. The ALJ found Mendez "was the only person who was u nloading the hose, and he [was] uncertain what occurred." The ALJ det ermined there was "no evidence of" a traumatic event that was undesigned and unexpected. The ALJ concluded Mendez "did not particularize what occurred and [ did] not [meet] his burden of presenting sufficient competent and credi ble evidence of facts essential to his claim[]" and "[did] not [meet] the burden of proving . . . eligibility for accidental disability retirement [b enefits] by a fair preponderance of the evidence." Mendez filed exceptions to the ALJ's decision with the Board. After considering those exceptions, the Board adopted the ALJ's decision and affirmed the denial of Mendez's application. This appeal fo llowed. On appeal, Mendez argues he proved by a preponderan ce of the evidence he is entitled to accidental disability retirement benefits because the event that caused his disability was undesigned and unexpected , and the Board's decision was arbitrary, capricious, and unreasonable. Mende z also argues pension statutes are remedial and should be liberally const rued in favor of the employee.6 A- 2891

- 21

"Our review of administrative agency action is limi ted." Russo v. Bd. of Trs., Police & Fireman's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). "An agency's de termination on the merits 'will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in t he record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 369, 3 80 (2014) (quoting Russo , 206 N.J. at 27). "Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and i n disregard of circumstances. Where there is room for two opinion s, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Wo rthington v. Fauver, 88 N.J. 183, 204-05 (1982) (alteration in original) (quotin g Bayshore Sewerage Co. v. Dep't Env't Prot., 122 N.J. Super. 184, 199 (Ch. Di v. 1973)). In determining whether an agency's decision is arbi trary, capricious, or unreasonable, we examine: (1) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the7 A- 2891

- 21

"agency clearly erred in reaching [its'] conclusion ." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474 , 482-83 (2007)). In Richardson v. Bd. of Trs., Police & Firemen's Re t. Sys., 192 N.J. 189 (2007), the Supreme Court clarified the meaning of the term " traumatic event " under N.J.S.A. 43:16A-7(1). A claimant for acciden tal disability benefits must establish: (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 membe r'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.] Under N.J.S.A. 43:16A-7(1), a member applying for a ccidental disability must prove the event was "undesigned and unexpected ." Ibid. As the Court explained in Richardson , " [t]he polestar of the inquiry is whether, during th e8 A- 2891

- 21

regular performance of his job, an unexpected happe ning, not the result of preexisting disease alone or in combination with the w ork, has occurred and directly resulted in the permanent and total disability of t he member. " Id. at 214. "Undesigned and unexpected" requires "an unanticipa ted consequence " that "is extraordinary or unusual in common experience." Id. at 201. The evaluation of the event is not based on results but instead on wh at the injured person was doing at the time. Russo, 206 N.J. at 18. Although pension statutes are "remedial in character" and "should be liberally construed and administered in favor of th e persons intended to be benefited thereby," Geller v. Dep't of Treasury, 53 N.J. 591, 597-98 (1969), "eligibility is not to be liberally permitted," Smi th v. State, Dep't of Treasury , 390 N.J. Super. 209, 213 (App. Div. 2007). After considering all the evidence presented and th e applicable legal standards, the ALJ determined Mendez failed to prov e by a preponderance of the evidence his disability was caused by an undesi gned and unexpected event. The ALJ specifically noted Mendez was not able to convinc ingly articulate how he was injured and "did not particularize what occu rred." The ALJ also found his testimony was inconsistent with the contemporan eous injury report he completed on the day of the incident as well as the report of his disability9 A- 2891

- 21

evaluation. The ALJ's decision was based on ample findings supp orted by substantial credible evidence in the record and was not arbitrary, capricious, or unreasonable. We discern no basis to disturb the B oard's decision adopting the ALJ's findings and denying Mendez's application for accidental disability retirement benefits. To the extent we have not otherwise addressed appel lant's arguments, the y are without sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(D) and (E).

Affirmed.