STEPHEN MILLER v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1972-09T2

STEPHEN MILLER,

Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent.

_______________________________________

November 8, 2010

Argued October 19, 2010 Decided

Before Judges Skillman and Yannotti.

On appeal from a Final Determination of the Board of Trustees, Police and Firemen's Retirement System.

Darryl M. Saunders argued the cause for appellant (Fusco & Macaluso, L.L.C., attorneys; Charles E. Tempio, on the brief).

Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief).

PER CURIAM

Stephen Miller (Miller) appeals from a final determination of the Board of Trustees of the Police and Firemen's Retirement System (Board), which denied his application for accidental disability retirements benefits under N.J.S.A. 43:16A-7. We affirm.

The relevant facts are essentially undisputed. Miller was employed as a sheriff's officer in Essex County. He was authorized to carry a weapon at all times. In October 1999, Miller's girlfriend filed a complaint charging him with committing an act of domestic violence. The trial court issued a preliminary restraining order and Miller was required to surrender his service weapon.

The domestic violence case was tried in November 1999, after which the court dismissed the complaint and vacated the retraining order. Defendant was permitted to carry a weapon while on duty. Thereafter, the Essex County Sheriff asked the Essex County Prosecutor to permit Miller to carry his weapon during on and off-duty hours, and that he be rearmed without any restrictions.

In response to this request, an assistant prosecutor sent a letter to Miller stating that before the County Prosecutor would consider allowing him to be rearmed on a full-time basis, he would have to attend and successfully complete a "group batterers program." In the letter, the assistant prosecutor stated that, in the interim, Miller could only be armed while on active duty with the Sheriff's Office and would be required to return the weapon to his supervisor at the end of each shift. Miller read the letter on May 25, 2000 and claimed that he was totally and permanently disabled as a result of the psychic trauma he experienced as a result of reading the letter.

In April 2003, Miller filed with the Board an application for accidental disability retirement benefits pursuant to N.J.S.A. 43:16A-7. On October 20, 2003, the Board determined that Miller was totally and permanently disabled from his duties as a sheriff's officer but determined that he was not entitled to accidental disability benefits because the incident of May 25, 2000 did not qualify as a "traumatic event" under the relevant statute and case law. The Board found, however, that Miller was entitled to ordinary disability benefits.

Miller filed an administrative appeal from the Board's decision. The Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ). At the hearing, Miller testified that on May 25, 2000, when he read the assistant prosecutor's letter, he was "devastated" and "shocked by this news." Miller said that he was "in great fear" that he would not be able to protect himself during the off-duty hours.

The ALJ issued an initial decision finding that Miller did not qualify for accidental disability benefits under N.J.S.A. 43:16A-7 because he failed to establish that his disability was the direct result of a "traumatic event." On July 11, 2005, the Board adopted the ALJ's initial decision and Miller appealed to this court.

We reversed and remanded the matter to the Board for reconsideration of its decision in light of the Supreme Court's decision in Richardson v. Bd. of Trustees, Police and Firemen's Retirement Sys., 192 N.J. 189 (2007), which had been issued while the appeal was pending. Miller v. Bd. of Trustees, Police and Firemen's Retirement Sys., No. A-6762-04 (Aug. 20, 2007) (slip op. at 9). We noted that the Supreme Court could provide further guidance in other cases involving accidental disability retirement benefits that were then pending before it. Id. at 9.

Thereafter, the Supreme Court issued its opinion in Patterson v. Bd. of Trustees, State Police Retirement Sys., 194 N.J. 29 (2008). In Patterson, the Court held that, when a claimant alleges that he is permanently disabled as a result of a mental injury resulting from an exclusively psychological stimulus, the claimant may qualify for accidental disability retirement benefits if he establishes that the stimulus was

the direct result of a mental stressor that is identifiable as to time and place, undesigned and unexpected, external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work), that occurred during and as a result of the member's duties, and was not the result of the member's willful negligence[.]

[Id. at 48.]

The court additionally stated that "the disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Id. at 50. The Court observed that under this standard "a permanently mentally disabled policeman who sees his partner shot; a teacher who is held hostage by a student; and a government lawyer used as a shield by a defendant all could vault the traumatic event threshold." Id. at 50.

On May 14, 2008, the Board issued a determination finding that, although Miller was totally and permanently disabled from the performance of his regular and assigned duties, his disability was not the result of a mental stressor that met the Patterson criteria. Miller filed an administrative appeal from the Board's decision and the matter was again referred to the OAL for a hearing before an ALJ.

The ALJ subsequently issued a decision in which he found that Miller's disability was not the direct result of an incident that met the criteria established by Patterson. The ALJ wrote:

The event in Miller's case which precipitated his mental disability was the reading of a letter from the Essex County Prosecutor, which indicated that his weapon would not be returned until he satisfied the condition that he attend a batterer's program. Although Miller may have been "shocked" or horrified at this requirement, it simply cannot be characterized as "a direct personal experience of a terrifying or horror inducing event that involved actual or threatened death or serious injury, or similarly serious threat to the physical integrity of the member or another person."

Miller's fear of being unarmed for a period of time out in the streets where he may confront an unsavory element which he found threatening is no more than conjecture which cannot give rise to an argument that would overcome the additional analysis required by Patterson. The events depicted of a horrifying or terrifying nature were actually seen and experienced by the victim. Reading of a letter from the Essex County Prosecutor simply does not come under the category of terrifying or horrifying.

On November 9, 2009, the Board adopted the ALJ's decision. This appeal followed. Miller argues that: 1) the traumatic event that he experienced meets the test for accidental disability benefits; 2) the ALJ and the Board erred in applying the Patterson test because they failed to evaluate the serious threat to his physical integrity; 3) the ALJ and the Board erred in applying Patterson's objective standard; and 4) he received ineffective assistance of counsel when his attorney refused to call an expert witness in the remand hearing to establish how the words communicated to him were a serious threat to his physical integrity.

We have carefully considered the record and conclude that Miller's contentions on appeal are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). We add the following brief comments.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). We may only reverse a final decision of an administrative agency "in those rare circumstances" when the "agency['s] action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

Our review of a final decision of an administrative agency is limited to four inquiries: 1) whether the decision is contrary to either the State or Federal Constitution; 2) whether the decision violates express or implied legislative policies; 3) whether the record contains substantial evidence to support the findings on which the agency based its decision; and 4) whether the agency clearly erred in applying the legislative policies to the facts by reaching a decision that could not reasonably have been made on a showing of the relevant factors. Ibid.

We are satisfied that the Board's decision is legally sound and there is sufficient credible evidence to support its finding that Miller's psychological disability was not the result of a "traumatic event" under the criteria established by Patterson. We therefore affirm the Board's determination substantially for the reasons stated by the ALJ in his initial decision, as adopted by the Board.

Affirmed.