Estate of Terminelli v. Police & Firemen's Retirement System , 290 N.J. Super. 231 ( 1996 )

The opinion of the court was delivered by

LANDAU, J.AD.

Anthony Terminelli was the Police Chief of the Borough of Washington, supervising its small twelve-member force. He died on February 18, 1992, after collapsing at police headquarters. The death certificate listed cardiac arrest due to coronary artery disease as the cause of death.

Chief Terminelli was a member of the Police and Fireman’s Retirement System (PFRS). His estate applied for accidental death benefits, contending that death was the direct result of a traumatic event that occurred on February 3, 1992, during the actual performance of police duties. The application was denied by the Board of Trustees of PFRS (Board), which did not accept this contention.

Following administrative appeal, an Administrative Law Judge issued an initial decision supporting the PFRS denial of accidental death benefits. It was adopted by the Board, and the Estate appealed. We affirm.

It is not disputed that Chief Terminelli suffered a heart attack in 1986 for which he was hospitalized and underwent cardiac catheterization. Various cardiac medications were prescribed thereafter. He returned to work on a part-time basis three months after discharge from the hospital, gradually increasing his hours. By February 3, 1992, Chief Terminelli was working a forty-hour week, free of pain or discomfort, walking three miles a day and apparently in good health, according to his wife.

On February 3,1992, while on patrol car duty, he apprehended a burglary suspect after a vigorous foot chase that culminated when he tackled and subdued the suspect. Another senior officer testified that when he responded to a request for back-up, Chief Terminelli was clutching his chest and gasping for breath. The Chief thought he might have been kicked in the chest or fallen against a tree during the tackle. According to the same witness and Mrs. Terminelli, the Chiefs capacity, vigor, and disposition appeared to have deteriorated from that time until his fatal attack on February 18.

The Administrative Law Judge considered the expert opinion testimony of the Estate’s witness, Dr. Bernard Eisenstein, who concluded that Chief Terminelli’s fatal acute myocardial infarction:

was a result of the physical exertion on February 3rd, producing an acute coronary insufficiency state, known as unstable angina, with bridging symptoms and continued coronary insufficiency, until an acute myocardial infarction resulted on — the 18th of February.

So, therefore, the acute myocardial infarction was due to the traumatic event of February 3rd.

[ (Emphasis added).]

While Dr. Eisenstein opined that Chief Terminelli’s death was the direct result of pursuing, tackling, and subduing the suspect, he also unequivocally confirmed that death was due to coronary artery disease as stated in the death certificate.

The ALJ recognized the clarifying, but restrictive, judicial interpretations given to the phrase “traumatic event” as used in N.J.S.A 43:16A-7(1). In Kane v. Board of Trustees, 100 N.J. 651, 663, 498 A.2d 1252 (1985), the Court said:

We think it consonant with the legislative intent to characterize a traumatic event as one that arises in cases in which a worker involuntarily meets with a physical object or some other external matter and is victim of a great rush of force or power chat he himself did not bring into motion. As Cattani makes clear, the focus of inquiry is on the event itself rather than the injury. The force or power must originate from sources other than the injured party. Hence, to be eligible for accidental disability retirement allowance, a worker must demonstrate (1) that his injuries were not induced by the stress or strain of the normal work effort; (2) that he met involuntarily with the object or matter that was the source of the harm; and (3) that the source of injury itself was a great rush of force or uncontrollable power.

[ (Citation omitted).]

It has long been judicially recognized that the concept of “accident” for purposes of death claims under N.J.S.A 43:16A-10 must be the same as that for disability retirement, notwithstanding absence of the words “traumatic event” from the death benefits statute. Russo v. Teachers’ Pension & Annuity Fund, 62 N.J. 142, 152, 299 A.2d 697 (1973); In re Hill, 160 N.J.Super. 382, 388-89, 390 A.2d 131 (App.Div.1978).

The ALJ concluded that occurrence of a “traumatic event” had not been established, making the factual findings: “[ajlthough the chief may have been kicked in the chest by the suspect, this has not been proven by petitioner; indeed even the chief was uncertain.” ¹ Additionally, the ALJ found that, unlike the situation in Petrucelli v. Board of Trustees, 211 N.J.Super. 280, 511 A.2d 735 (App.Div.1986), Chief Terminelli had a preexisting symptomatic coronary artery disease, which was aggravated by the February 3 incident.

These findings of the ALJ find support in the record. Adopting these findings, the Board reasonably could have determined that the three conjunctively-expressed prongs of Kane were not satisfied. Even if injury sustained during violent physical apprehension of a suspect is not necessarily deemed part of the normal work effort for a law enforcement officer, see Gable v. Board of Trustees, 115 N.J. 212, 557 A.2d 1012 (1989), and the “involuntary” prong is read narrowly for policy reasons, id. at 224, 557 A.2d 1012, the evidence in this case falls short of compelling a conclusion that application of an external great rush of force, which Chief Terminelli did not himself bring into motion, caused his death. See Kane, supra, 100 N.J. at 662, 498 A.2d 1252; Cattani v. Board of Trustees, 69 N.J. 578, 586, 355 A.2d 625 (1976). The legislative criterion is not satisfied by proof of disability or death “resulting from the aggravation or acceleration of a preexisting disease even though unusual or excessive work effort is involved.” Cattani, supra, 69 N.J. at 585, 355 A.2d 625; see also Hill, supra, 160 N.J.Super. at 390, 390 A.2d 131.

Neither the Board nor we are free to construe liberally the death benefits statute. See Mazza v. Board of Trustees, 143 N.J. 22, 24, 25, 667 A.2d 1052 (1995). The Board’s decision is supported by sufficient credible evidence on the record as a whole and we cannot say that, in endeavoring to follow the law and legislative policy, it clearly erred or reached an unreasonable conclusion. See id. at 25, 667 A.2d 1052.

1 Although not integral to our decision, we take notice that the classic symptoms of a heart attack are, "[c]rushing pain in the center of the chest, accompanied by difficult breathing, sweating, nausea, or a feeling of faintness.” Lawrence Deckelbaum, M.D., Heart Attacks and Coronary Artery Disease, in Yale University School of Medicine Heart Book 133, 137 (Barry L. Zaret, M.D., et al. eds., 1992).