JOSEPH GUADAGNO, Petitioner- v. BOARD OF TRUSTEES, POLICE & FIREMEN'S RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1832-04T21832-04T2

JOSEPH GUADAGNO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE &

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

 

Argued January 11, 2006 - Decided February 22, 2006

Before Judges Weissbard, Winkelstein and Lihotz.

On appeal from a final decision of the Board of Trustees of the Police & Firemen's Retirement System, 3-10-229826.

Vicki W. Beyer argued the cause for appellant (Stark & Stark, attorneys; Ms. Beyer, on the brief).

Eileen S. DenBleyker, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General; Patrick DeAlmeida, Assistant Attorney General, of counsel; Linda Bilec, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Joseph Guadagno was a senior corrections officer who suffered post-traumatic stress syndrome after being threatened by an inmate. He receives ordinary disability pension benefits as the result of being permanently and totally disabled from that disorder. He appeals from a final decision of the Board of Trustees of the Police and Firemen's Retirement System (the Board) that rejected his application for accidental disability pension benefits. The Board concluded that because his injuries were not the result of a traumatic event, he did not qualify for those benefits. See N.J.S.A. 43:16A-7(1). We affirm.

We take the facts from the hearing before the Administrative Law Judge (ALJ) on May 24, 2004, where petitioner's attorney phrased the issue as follows: "The only issue before the court at this time is whether or not [the October 28, 2002] incident rises to the level of a traumatic event, as it's been defined by the statute as well the case law interpreting the statute."

Petitioner was a senior corrections officer employed at the Albert C. Wagner Youth Correction Facility. His disability resulted from an incident that occurred on October 28, 2002, when he was working in the facility's administrative segregation unit. Petitioner described what happened:

During the course of one of my inspections, inmate Church was in (sic) his cell door. I had known him from a previous incident, where we had had an altercation. It was different this time, he was just eerily smiling at me as I was making the rounds. I asked him, you know, what was going on, you know, "Is there a problem, do you need anything?" And he's smiling at me and he made a threat that I'll never forget. And he basically told me he said, "I know you now. I know who you are. You're from Hamilton, you got that pizza place. You worked at that bar." He said, "I know you, I'm going to kill you."

He threatened to rape my wife, kill my he knew I had a daughter. He told me, if he can't do it, either him or his boys on the street are going to do it and that all he wants is murder. When he told me that the details of my past he knew my family owned a pizza place. I previously between employments had worked at a bar in Trenton. I was scared . . . my heart dropped and was scared to death.

Q. You said there was a previous incident with the inmate; is that correct?

A. Yes, ma'am.

Q. And when did that occur?

A. Approximately a week before. . . .

. . . .

I was assigned by the supervisor that day with two other officers to escort an inmate from the visit area back to the Seg[regation] Unit. . . .

We told the inmate the visit was terminated. . . . [I]t was the same inmate, Paul Church. He didn't seem to think that his visit was up, but he complied. We handcuffed him and we started escorting him back to the unit. As we were escorting him, he turned to me and said, "What do you think you're superman because if you are I can turn you into a paraplegic like Christopher Reeve." And it wasn't like he was laughing . . . or just trying to be funny about it, like some inmates do, but he looked at me straight in the eye and he said it and he complained that I was cutting his visit too short because I was the one that told him it was up. And he made the threat.

The administrative segregation unit houses inmates who require separation from the general prison population as a result of their misconduct. The cells are enclosed; they have steel doors with a small window. When the October 28 incident occurred, the inmate was locked in his cell.

During his employment as a corrections officer between 1997 and the October 28, 2002 incident, petitioner was threatened by inmates "numerous times." He testified that generally, threats "roll[] off your back a lot of the times because it's just the normal course of duties that you encounter." Nevertheless, he did not consider the subject threat "idle comment or anything like that." The inmate was significantly larger than petitioner, "muscular from working out," and petitioner believed the inmate "could definitely manhandle [him]." When the inmate made the comment on October 28, 2002, "he was standing right up on the door and he was just standing there staring me down and he had this big grin on his face. He was just smiling like he heard the funniest joke in the world."

Petitioner's supervisor, Lieutenant William Varrell, testified that the window on the steel door that separated petitioner from the inmate was "maybe about two foot by maybe five, six inches wide." Approximately six or seven officers were "roving" in the administrative segregation unit at the time the comments were made. When petitioner reported the incident to Varrell, petitioner appeared angry.

According to Varrell, inmates yell at corrections officers all the time; threats to officers did not occur every day, but were "not infrequent." Varrell considered threats by inmates to be part of the normal stress and strain of the work effort. He acknowledged on cross-examination that threats that included specific knowledge about a particular officer, like those made to petitioner on October 28, were "very infrequent."

The ALJ recommended that petitioner be awarded accidental disability benefits. He said:

First, it is clear that the threat encountered by Petitioner is not part of the stress and strain of the normal work effort. Indeed, Lieutenant Varrell confirmed that it is "very infrequent" for a threat to have such personal information as the one encountered by Petitioner. Second, since Petitioner did not encourage or solicit the threats it is clear that he met them involuntarily. Third, this threat was a great rush of force because of the inmate's intimate knowledge of where the Petitioner lived and the violent threats to kill and rape were made against his family.

While accepting the facts as found by the ALJ, the Board rejected his recommendation. It concluded that the threats were within the stress and strain of petitioner's normal work effort as a senior corrections officer, and the incident, involving no physical contact, did not involve "great force"
or "uncontrollable power." The Board found:

[I]t is Board's position that the October 28, 2002 incident failed to meet the first prong and third prongs of the Kane-Pushko test.[] The incident failed to meet the first prong because a verbal threat made from behind a locked cell door is within the stress and strain of the normal work effort of a senior corrections officer. The job specification for a senior corrections officer specifically recognizes the fact that custody and care of inmates is a dangerous job requiring the ability to deal firmly and effectively with individuals who shout violent and threatening remarks. The job specification recognizes that officers will be exposed to some level of direct threats to their personal safety because it requires an officer to control inmates and respond to riots, escapes and pursuits and requires training in the use of firearms and other equipment. The court has recognized that even direct physical harm up to the level of a scuffle are within the stress and strain of a correction officer's work effort. Gable v. Board of Trustees, Public Employees' Retirement System, 115 N.J. 212 (1989).

Lt. Varrell, Mr. Guadagno's supervising officer, testified at the hearing that he considers verbal threats within the stress and strain of the normal work effort of a corrections officer. He testified that correction officers are trained to deal effectively and efficiently with such threats and take the appropriate action when they occur. Both Mr. Guadagno and Lt. Varrell stated verbal threats from inmates are common occurrences.

If a verbal threat by an inmate was deemed to constitute a traumatic event, it is fair to say that a very high percentage of incidents would qualify as traumatic. Such an interpretation of the pension laws, however, would be contrary to the legislative objective of the amendment to N.J.S.A. 43:16A-7, which was to narrow the terms of eligibility for accidental disability retirement benefits to extraordinary circumstances.

The incident in this matter also fails to meet the third prong of the Kane test. The incident involved no physical contact. The statements were made from behind a steel door through a small window by a prisoner that was locked down in Administrate Segregation. Mr. Guadagno did not come into contact with the inmate again.

To qualify for accidental disability pension benefits under the Police and Firemen's Retirement System, a member must be permanently and totally disabled as a direct result of a traumatic event incurred in the performance of his or her regular assigned duties. N.J.S.A. 43:16A-7(1). Accidental disability retirement benefits are calculated at two-thirds of the member's actual annual compensation at the time of the occurrence, N.J.S.A. 43:16A-7(2)(b), compared to forty percent for ordinary disability benefits. N.J.S.A. 43:16A-6(2)(b). "The current standard for the award of an accidental disability pension was adopted in the mid-1960s by amendments to the statutes governing the state pension funds. L. 1965, c. 89, 10 (State Police), L. 1964, c. 241, 4 (Police & Firemen's); L. 1966, c. 67, 4 (Public Employees); L. 1966, c. 66, 2 (Teachers)." Moore v. Bd. of Trs. of the State Police Ret. Sys., ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op. at 8). The Legislature adopted that standard "'to make the granting of an accidental disability pension more difficult' than it had been under prior law." Ibid. (quoting Cattani v. Bd. of Trs., Police & Firemen's Ret. Sys., 69 N.J. 578, 584-85 (1976)).

A three-prong test to determine whether an event is traumatic has been established by our Supreme Court. See Kane, supra, 100 N.J. at 663. The Court said:

[T]o 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 the injury itself was a great rush of force or uncontrollable power.

[Ibid.; see also In re Patterson, ___ N.J. Super. ___ (App. Div. 2006) (slip op. at 8); Moore, supra, ___ N.J. Super. ___ (slip op. at 9)].

Here, the issue on appeal, as it was before the ALJ and the Board, is whether the October 28, 2002 incident meets the three-prong Kane test so as to qualify as a traumatic event. The Board found that it did not meet either the first or third prong.

The first prong requires that the injury not have been "induced by the stress or strain of the normal work effort." Kane, supra, 100 N.J. at 663. The Board concluded that the threat fell within the "stress and strain of the normal work effort of a senior corrections officer" because the testimony from both petitioner and his supervisor showed: it was "a single verbal threat"; "made from behind a locked door cell"; "correction officers are trained to deal effectively and efficiently with such threats and take the appropriate action when they occur"; and "verbal threats from inmates are common occurrences."

In analyzing the Board's decision, we are mindful of our role in the review of an agency determination. The authority of an administrative agency is "to be liberally construed to enable the agency to accomplish the Legislature's goals." Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). Accordingly, a "strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility." Ibid.

We are not free to substitute our judgment for the "wisdom of a particular administrative action" as long as the action is statutorily authorized and not arbitrary or unreasonable." Id. at 391 (quoting N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978)). Said another way, our capacity to review administrative actions "is severely limited." Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. Only if an agency did not follow the law, the record did not contain substantial evidence "to support the findings on which the agency based its action," or the agency "clearly erred" in reaching a conclusion "that could not reasonably have been made on a showing of the relevant factors," can an agency determination be deemed arbitrary or unreasonable. Ibid. If we are satisfied that the evidence and inferences to be drawn from the evidence support the agency decision, we are required to affirm that decision, even if we would have reached a different result. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

Applying that standard here, the record supports the Board's determination that the October 28, 2002 threat was within the stress and strain of normal work effort of a senior corrections officer. In addition to the particular circumstances of the event, factors the Board considered to support its decision were that the "custody and care of inmates is a dangerous job"; corrections officers' job specifications recognize they will be exposed to some level of direct threats to their personal safety; the job specifications require officers to control inmates, respond to riots and escapes, and require training in the use of firearms; and, corrections officers are required to take "the necessary steps to assure safe and orderly conditions."

Threats to corrections officers are common. While threats to the degree of specificity contained here occur infrequently, the agency concluded that the threat a single instance from behind a locked door should be expected by a corrections officer as a normal part of his or her job. The Board was guided by the intent of the amendments to N.J.S.A. 43:16A-7 to narrow the award of accidental disability benefits. See Kane, supra, 100 N.J. at 661; Cattani, supra, 69 N.J. at 584. It also recognized that if a verbal threat by an inmate was deemed to constitute a traumatic event, "a very high percentage of incidents would qualify as traumatic." That determination was consistent with the Board's obligation to oversee the "proper operation" of the Police and Firemen's Retirement system and adopt rules to operate the retirement system economically and consistent with other pension funds within the Division of Pension and Benefits. See N.J.S.A. 43:16A-13(1), (7).

While reasonable minds may differ as to the Board's conclusion, we cannot say that the decision is either unsupported by the record or so clearly mistaken that intervention by us is demanded in the interest of justice. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001). Thus, even if we would have reached a different conclusion, giving appropriate deference to the agency, we do not find the Board's decision that petitioner failed to meet the first prong of the Kane test to have been arbitrary or unreasonable under the circumstances.

We next turn to the third prong of the Kane test. That is, whether the verbal threat that occurred on October 28, 2002 constituted "a great rush of force or uncontrollable power." Kane, supra, 100 N.J. at 663. In examining this issue, we address first whether a psychic injury can be caused by a "traumatic event" in the absence of some type of external physical force. Two recent opinions have considered this issue, and have reached different conclusions.

In Moore, supra, an African-American state trooper was subject to "prolonged exposure to a racially-hostile work environment" that rendered him permanently and totally disabled from the performance of his job. ___ N.J. Super. ___ (slip op. at 2-3). The appellate panel concluded that the petitioner did not qualify for accidental disability benefits because the third prong of the Kane test could not be satisfied by a purely psychic stimulus. Id. (slip op. at 16). The court grounded its decision on the legislative history of N.J.S.A. 43:16A-7(1), which reflected an intent to limit the grant of accidental disability pension; and, on the language in Kane, supra, that says that accidental disability pension cases are those where "a worker involuntarily meets with a physical object or some other external matter." Id. (slip op. at 8-10) (quoting Kane, supra, 100 N.J. at 663); see also Cattani, supra, 69 N.J. at 586 (1976) ("the application of some kind of external force to the body or the violent exposure of the body to some external force" is necessary to satisfy the requirement of a traumatic event). Consequently, if we apply the reasoning in Moore to the facts here, because no physical event caused petitioner's psychic injury, he would be precluded from receiving accidental disability benefits under the third prong of the Kane test.

Subsequent to Moore, another panel of this court concluded that a purely psychic stimulus could qualify as a traumatic event and warrant entitlement to accidental disability benefits. See Patterson, supra, ___ N.J. Super. ___. There, after a state police officer was alleged to have broken his girlfriend's nose, he was assigned to desk duty. Id. (slip op. at 2). On the day of his first new assignment, his squad sergeant, in the presence of the rest of the squad, called him derogatory names and humiliated him. Id. (slip op. at 2-3). The squad sergeant repeated his action later that day. Id. (slip op. at 3). A third incident occurred as the petitioner was about to leave the building, when the squad sergeant bullied him to the point that he believed he would be physically assaulted. Id. (slip op. at 3-4). The next day when the petitioner returned to work, another sergeant told him that he would have to stay out of sight until the end of his shift. Id. (slip op. at 4). The petitioner then "literally hid in a closet for months." Ibid. The court concluded that this series of events was sufficient to establish a traumatic event and reversed the Board, which had denied accidental disability benefits. Id. (slip op. at 11-12). The court said: "Simply put, the undisputed evidence established multiple traumatic psychic events evidencing intense, brutal, and hostile treatment, not the 'single instance of abusive language' characterized by the Board." Id. (slip op. at 13).

The holding in Patterson was consistent with the suggestion in Pushko II, supra, that "a psychic stimulus of uncontrollable power" could satisfy the third prong of the Kane test. 208 N.J. Super. at 146. Nevertheless, Patterson is factually distinguishable from this case because the court rested its decision on the series of abusive actions against the petitioner. Here, it was only a single event, the October 28 threat that contained specific personal information, that petitioner claims caused his post-traumatic stress disorder. While a week earlier the inmate had threatened petitioner, that event was no more than a normal stress and strain of petitioner's employment.

Thus, although we agree with the conclusion in Patterson and Pushko II that under certain circumstances a purely psychic stimulus may constitute a traumatic event and satisfy the third prong of the Kane test, the Board's conclusion here that this is not such a case was not arbitrary or unreasonable. In concluding that the proofs did not qualify petitioner for accidental disability benefits under the third prong of Kane, the Board said: "[t]he incident involved no physical contact. The statements were made from behind a steel door through a small window by a prisoner that was locked down in Administrative Segregation. Mr. Guadagno did not come into contact with the inmate again." Accordingly, the Board found that the October 28 threat from behind a locked steel door does not rise to the level of "a great rush of force or uncontrollable power." That decision was not clearly mistaken and we find no clear error.

 
Affirmed.

WEISSBARD, J.A.D., dissenting.

Finding myself in fundamental disagreement with the majority, I dissent.

The critical question posed by this case is, when is a threat not just another threat? The majority defers to the Board's finding that the threat made against Guadagno and his family on October 28, 2002 was just another threat, part of the normal stress and strain of a corrections officer's life. ALJ Hurd concluded otherwise, and I agree with his reasoning. He found it to be "clear that the threat encountered by Petitioner is not part of the stress and strain of the normal work effort. Indeed, Lieutenant Varrell confirmed that it is 'very infrequent' for a threat to have such personal information as the one encountered by Petitioner." Recall that the prisoner conveyed unusual and specific knowledge of petitioner and his family, including where they could be located and, most significantly, that the prisoner had friends on the outside ("my boys from the street") who would rape his wife and kill his daughter.

There are two reasons why the Board's contrary conclusion is not entitled to the usual degree of deference pursuant to the authorities cited in the majority opinion. First, the Board completely ignored the unique, personal nature of this particular threat. The Board relied on the fact that the threat was "made from behind a locked cell door" and quoted Varrell's testimony, as well as petitioner's concession, that "verbal threats from inmates are common occurrences." Nowhere, however, does the Board refer to Varrell's admission that threats containing such personal information are "very infrequent," or to the testimony that, notwithstanding the inmate's inability to carry out the threat, the statement contained within it the ability to accomplish its murderous purpose by others. The Board has, in my view, an obligation to discuss all the pertinent evidence fairly, not to simply pick and choose the testimony that supports its conclusion. When it fails to do so, as here, its decision becomes "arbitrary and unreasonable." Stated otherwise, the Board "clearly erred."

Second, as I see it, the ALJ's finding that this threat was not part of "the stress or strain of the normal work effort," Kane v. Bd. of Trs., Police and Firemen's Ret. Sys., 100 N.J. 651, 663 (1985) (emphasis added), was a finding of fact based on the "credibility of lay witnesses" that could not be rejected by the Board unless it could demonstrate "that the findings are arbitrary, capricious, or unreasonable or are not supported by sufficient, competent and credible evidence in the record." N.J.S.A. 52:14B-10(c). Thus, the July 1, 2001 amendment to the Administrative Procedure Act reversed the manner in which the agency had previously had a much more unfettered power to reject ALJ credibility determinations. Lefelt, Miragliotta and Prunty, New Jersey Practice, Administrative Law and Practice, 6.16 (2000 and 2005 pocket part) (hereafter "Lefelt"). Clearly, for the same reasons stated earlier, the Board did not make, and state, findings that would permit it to overturn this factual determination. I disagree with the Board's conclusion that only a question of law was involved. Indeed, the Court itself, post-Kane, has made clear that whether an injury arises from the normal work effort is a factual issue. Gable v. Bd. of Trs., Pub. Employees' Ret. Sys., 115 N.J. 212, 222-23 (1989). Nor is this a matter calling for deference to "agency expertise," see, e.g., Campbell v. New Jersey Racing Comm'n, 169 N.J. 579, 588 (2001), since there is no suggestion that the Board has particular expertise in corrections matters.

The Board's decision seems to constitute a determination that threats by inmates are in all circumstances part of the normal stress and strain of a corrections officer's job, as this statement suggests:

If a verbal threat by an inmate was deemed to constitute a traumatic event, it is fair to say that a very high percentage of incidents would qualify as traumatic. Such an interpretation of the prison laws, however, would be contrary to the legislative amendment to N.J.S.A. 43:16A-7, which was to narrow the terms of eligibility for accidental disability retirement benefits to extraordinary circumstances.

If this statement can be read as a prospective determination that verbal threats by inmates are in all circumstances part of the stress and strain of a corrections officer's normal work effort, it should, perhaps, be the subject of agency rule-making. Lefelt, supra, 2.5 at 55.

In any event, there is no support in this record for the Board's conclusion that if this threat was deemed traumatic "a very high percentage of [threat] incidents would qualify as traumatic." Finally, as the Board itself noted, the 1964 amendment to the statute did not intend to disqualify injuries arising from "extraordinary circumstances." I conclude that this case does meet that criteria.

For all of these reasons, I conclude that petitioner met the first prong of the Kane test. The second prong having been conceded, the Board concluded that petitioner also did not meet the third requirement that the injury, here the psychic trauma to petitioner, resulted from "a great rush of force or controllable power." There is little doubt that those words have bedeviled the ALJs, the agencies and the courts. See, e.g., Fiume v. Bd. of Trs., Police and Firemen's Ret. Sys., 96 N.J.A.R.2d (TYP) 153 (1996); Flint v. Police and Firemen's Ret. Sys., 96 N.J.A.R.2d (TYP) 278 (1996); Kablesh v. Bd. of Trs. of the Teachers' Pension and Annuity Fund, 93 N.J.A.R.2d (TYP) 229 (1993); D'Arpa v. Bd. of Trs., Pub. Employees' Ret. Sys., 95 N.J.A.R.2d (TYP) 333 (1995). In any event, their applicability to purely psychic injuries is not readily apparent. Nevertheless, it now seems settled that a psychic injury, even when unaccompanied by any external physical force, can constitute a traumatic event as defined by Kane. Pushko v. Bd. of Trs. of Teachers' Pension and Annuity Fund, 202 N.J. Super. 98, 105 (App. Div. 1985) (Pushko I), and on remand at 208 N.J. Super. 141, 144-45 (App. Div. 1986) (Pushko II). Indeed, if a psychic injury of such nature could not qualify, an entire class of injuries would be automatically excluded from possible coverage. There is nothing to suggest that the Court had such a broad exclusion in mind when it formulated the Kane test. While it would be helpful for the test to be clarified in this regard, I find Pushko (I and II) controlling. See In re Patterson, ___ N.J. Super. ___ (App. Div. 2006) (slip op. at 9-13). I fully agree with the majority's apparent rejection of the contrary result reached in Moore v. Bd. of Trs. of the State Police Ret. Sys., ___ N.J. Super. ___ (App. Div. 2006). However, the majority concludes that since this case involved only a single discrete threat and Patterson involved "a series of abusive actions against the petitioner" (slip op. at 15), this case does not meet the third prong. I disagree. If one accepts the premise that a psychic assault can constitute a "great rush of force or uncontrollable power," then there is no rational basis upon which to reject petitioner's claim, once it is determined that the first and second prongs have been met. In any event, here again, the Board clearly erred by focusing on the fact that the "incident involved no physical contact," the threats having been "made from behind a steel door through a small window by a prisoner that [sic] was locked down in Administrative Segregation." That statement, once again, ignores the particular facts constituting this threat, discussed earlier. If the Board's conclusion can be read, as I believe it can, as holding that there must always be a physical component to a traumatic psychic event, I consider it wrong as a matter of law. See Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (appellate court not "bound by the agency's interpretation of a statute or its determination of a strictly legal issue"); see also Clowes v. Terminix Int'l Inc., 109 N.J. 575, 588 (1988). Contrary to the majority's conclusion, the Board was "clearly mistaken." (slip op. at 16.)

The unique facts of this case cannot be conveniently "swept under the rug." This threat against this officer under these circumstances, was not "part of the stress or strain of [his] normal work effort," Kane, supra, 100 N.J. at 663, and it resulted from an event which constituted a "great rush of force or uncontrollable power," ibid., directed at petitioner's mind, his psyche. It was, "an externally applied blow to the mind [just as] a physical force constitutes an externally applied blow to the body." Pushko I, supra, 202 N.J. Super. at 104; see also Pushko II, supra, 208 N.J. Super. at 145-46.

 
Accordingly, I dissent from the majority's otherwise thoughtful and well-crafted opinion.

Kane v. Bd. of Trs., Police & Firemen's Ret. Sys., 100 N.J. 651, 663 (1985); Pushko v. Bd. of Trs. of Teachers' Pension & Annuity Fund, 208 N.J. Super. 141, 144 (App. Div. 1986) (Pushko II).

Our dissenting colleague suggests the first prong of the test is a question of fact; that the Board must find the ALJ's decision to be arbitrary, capricious, or unreasonable or not supported by sufficient, competent and credible evidence before the Board can reject it. See infra at p. 3. We disagree that the first prong of the test calls for a finding of fact. It is a test that calls for a legal conclusion based on a fact-specific analysis. That conclusion, so long as it is supported by the record, entitles the Board's decision to our deference. We disagree that the Board must find the ALJ's factual finding on the issue to have been arbitrary before the Board can arrive at its own conclusion.

The dissent asserts the Board ignored the personal nature of the threat because it made no mention of Lieutenant Varrell's acknowledgment that such a threat is "very infrequent." We disagree with the dissent's conclusion. While the Board did not specifically reference Varrell's statement, in arriving at its determination the Board relied on Lieutenant Varrell's testimony that "corrections officers are trained to deal effectively and efficiently with such threats. . . ." The agency did not reject the ALJ's credibility findings with regard to Lieutenant Varrell's testimony.

The court in Pushko II, supra, did not decide if the facts there satisfied the Kane test, but remanded to the Board of Trustees for additional psychiatric testimony. 208 N.J. Super. at 146.

The dissent reads the Board's conclusion as holding that there must always be a physical component of a traumatic psychic event. We respectfully disagree. The Board referred to the specific facts of the case that when the threat was made the inmate was locked behind a steel door and had no subsequent contact with petitioner to support its conclusion that the source of the injury was not caused by a great rush of force or uncontrollable power. The Board did not conclude, as the dissent suggests, that there must always be a physical component to a traumatic psychic event.

Even if this determination by the ALJ was an "ultimate" or "conclusionary" fact, it rested on a "basic" fact and was, therefore, entitled to the same degree of deference. See Lefelt, supra, 7.22, 7.23 at 394-95.

Pushko I was remanded for reconsideration in light of Kane, 102 N.J. 349 (1985).

As Moore points out (slip op. at 8), the Kane Court's use of the phrase "great rush of force or uncontrollable power" likely traces its origin to Cattani v. Bd. of Trs., Police & Firemen's Ret. Sys., 69 N.J. 578 (1976), which stated that the "phrase '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." Id. at 586 (emphasis added). However, the Court appeared to reach that definition after referring to the definition of "[t]rauma . . . as 'a wound; any injury to the body caused by external violence.'" Ibid. However, trauma is not so narrowly defined. Among its alternative definitions are "an emotional shock that creates substantial and lasting damage to the psychological development of the individual" and "something that severely jars the mind or emotions." Webster's New Collegiate Dictionary 1172. Pushko accepted a similar definition of psychic trauma. Pushko I, supra, 202 N.J. Super. at 105. Cattani itself recognized that its definition of traumatic event was "not all-inclusive and . . . a traumatic event may possibly be found in some situations which do not literally fall within the external force or violence concept." Cattani, supra, 69 N.J. at 586. There is no reason to believe that Kane intended to close this door left open in Cattani.

(continued)

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