IN THE MATTER OF ROSEMARIE TATUSKO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2888-08T32888-08T3

IN THE MATTER OF

ROSEMARIE TATUSKO.

_______________________________________________________

 

Argued December 15, 2009 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS #3-10-35043.

Samuel M. Gaylord argued the cause for appellant Rosemarie Tatusko (Gaylord, Rubinstein & Popp, attorneys; Lauren M. Santonastaso, on the brief).

Danielle P. Bradus, Deputy Attorney General, argued the cause for respondent Board of Trustees, Police and Firemen's Retirement System (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Bradus, on the brief).

PER CURIAM

This is an appeal from a final decision of the Board of Trustees of the Police and Firemen's Retirement System which denied appellant's application for an accidental disability pension.

Appellant was employed by the Department of Corrections as a senior correctional officer at the Burlington County Jail. Her application for an accidental disability pension was based on an incident that occurred on October 22, 2005, when she assisted in saving a female inmate who had attempted to commit suicide. Appellant heard a "hacking gagging noise," and when she scanned the prison cells to determine the source of this noise, she found the inmate hanging from a sheet in her cell. Appellant called another correctional officer, Temara Williams, to help her, and the two of them were able to cut down the sheet with scissors and get the inmate to the floor. Appellant thought at the moment that the inmate had died, but later found out that she had survived the attempted suicide.

At the time of this incident, appellant had been a corrections officer for eight years. During that time, she had witnessed three other attempted suicides, two of which involved inmates cutting their wrists and the third of which also involved a hanging. Appellant did not experience any psychological problems after any of those three prior incidents. However, appellant suffered a total and permanent psychological disability as a result of the October 22, 2005 incident. When appellant was asked at the hearing on her application before an Administrative Law Judge (ALJ) how the October 22, 2005 incident differed from those prior incidents, she responded: "I don't know. I can't explain."

This appeal is governed by the Supreme Court's decision in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), which held that a total and permanent mental disability as a result of a mental stressor, without any physical impact, may qualify as a "traumatic event" under the accidental disability provision of the Police and Firemen's Retirement System, N.J.S.A. 43:16-7(1), and other state pension laws, subject to the criteria set forth in that opinion. Those criteria include the ones set forth in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189, 21-13 (2007), and in addition, a requirement that "[t]he 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 34, 50. In further explaining this additional requirement for establishing a claim for an accidental disability pension based on such a mental disability, the Court stated that the mental stressor must have been "objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." Id. at 34.

The ALJ concluded that appellant's observation of the inmate's attempted suicide and efforts to save her constituted a traumatic psychological event under the Patterson criteria:

The witnessing of an attempted suicide by hanging clearly is a "terrifying or horror-inducing event that involves actual or threatened death. . . ." Patterson, [192 N.J. at] 34. Even for a corrections officer that is trained in inmate safety, the witnessing of such an event is no less horrific. In addition, petitioner did more than just witness the hanging, she then went and cut down the inmate and tried to save her. Although Williams did not have a mental trauma from witnessing the same incident, this does not disqualify or discount the horror-inducing nature of the event.

I conclude that the event is terrifying or horror-inducing because it meets the reasonable person test set forth in Patterson. Indeed, the witnessing of an attempted suicide by hanging is "not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." Id. The reasonable person in the instance would be a reasonable corrections office[r] with similar experience and training to the petitioner. It is my opinion that the horrific nature of seeing an inmate trying to hang themselves and then having to rescue the inmate would cause such a reasonable corrections officer with similar experience and training as petitioner to suffer a disabling mental injury.

However, the Board rejected this recommended conclusion and determined that appellant's application should be denied because appellant's observation of the inmate's attempted suicide and her subsequent efforts to save the inmate were not objectively capable of causing a reasonable corrections officer with training and experience similar to appellant to suffer a disabling mental injury:

Ms. Tatusko herself testified that this was the fourth attempted suicide she had been involved with and that she did not know why this one was different. Further, Ms. Williams, who was also involved in stopping the suicide attempt and worked alongside Ms. Tatusko, did not have any problems as a result of this incident. . . . [The ALJ's] conclusion essentially removes [the] reasonable person standard. [The ALJ's] conclusion that the horrific nature of seeing an inmate trying to hang themselves and then having to rescue the inmate would cause such a reasonable corrections officer with similar experience and training as Ms. Tatusko to suffer a disabling mental injury is not born out by the testimony.

The Board correctly concluded that the determination whether a mental stressor was "objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury," Patterson, supra, 194 N.J. at 34, should be made from the perspective of "a reasonable corrections officer with similar experience and training as [appellant]." We also believe that the Board, which is composed partly of law enforcement officers, see N.J.S.A. 43:16A-13(2)(c), is in a better position than this court to decide whether "a reasonable corrections officer with similar experience and training as [appellant]" could suffer a disabling mental injury as a result of the October 22, 2005 incident upon which appellant based her claim for an accidental disability. Therefore, it is appropriate to extend deference to the Board's decision regarding such a claim. See Patterson, supra, 194 N.J. at 51 (stating that the Court "rel[ies] upon the expertise of the [pension] boards to separate legitimate from illegitimate claims and to resolve the difficult causation problems inherent in accidental mental disability claims"). Extending that deference in this case, we conclude that the Board's decision to deny appellant's claim was reasonable and should be sustained.

Affirmed.

 

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A-2888-08T3

January 21, 2010