GREGORY RUSSO v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3706-08T2
GREGORY RUSSO,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
January 27, 2010
Argued November 30, 2009 - Decided
Before Judges Lisa and Alvarez.
On appeal from a final determination of the
Board of Trustees of the Police and
Firemen's Retirement System, Docket No. 3-
10-32345.
John D. Feeley argued the cause for
appellant (La Rocca, Feeley & Associates,
Steven J. Kaflowitz, of counsel
attorneys;
and on the brief; Mr. Feeley, on the brief).
Eileen S. DenBleyker, Deputy Attorney
General, argued the cause for respondent
(Anne Milgram, Attorney General, attorney;
Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Jeff S. Ignatowitz,
Deputy Attorney General, on the brief).
PER CURIAM
Gregory Russo appeals from the March 10, 2009 final
determination of the Board of Trustees of the Police and
Firemen's Retirement System (Board) denying his application for
accidental disability benefits. After our review of the record
and consideration of the arguments made, we affirm.
On November 29, 2001, during his first year as an officer
for the Montclair Police Department, Russo was dispatched to the
scene of a residential fire with three other officers. They
entered the burning building, determined that there were four
residents inside and escorted two children and an adult to
safety from the first floor. They could hear a fourth person
calling for help from the second floor and tried to reach him,
but could not safely proceed upstairs because of the fire's
rapid advance. As they were attempting to rescue the fourth
occupant, local fire department personnel entered the building
and ordered the police officers to leave. The man on the second
floor died as a result of the fire.
After being evacuated from the residence, Russo witnessed
the fire department removing the fourth occupant's body through
a window and was verbally berated by the man's family for not
doing enough to rescue him. The officers were taken to the
local emergency room to be treated for smoke inhalation and were
released the following morning. As a result of this traumatic
event, Russo was diagnosed with post-traumatic stress disorder.
A-3706-08T2
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The initial decision of an Administrative Law Judge (ALJ)
who considered the matter, issued on November 6, 2008, found
that Russo met the standard for receipt of accidental disability
retirement benefits. Such benefits are substantially greater
than ordinary disability benefits, which are only forty percent
of a member's final compensation. N.J.S.A. 43:16A-6(2)(b). In
contrast, a member who receives accidental disability benefits
receives two-thirds of his annual compensation. N.J.S.A.
43:16A-7(2)(b).
Pursuant to our statutory scheme, eligibility for job-
related disability benefits is explicitly extended to
"individuals with disabling mental injuries." Patterson v. Bd.
of Trs., State Police Ret. Sys.,
194 N.J. 29, 44 (2008). See
also N.J.S.A. 43:16A-7(1); N.J.S.A. 43:16A-6(1). Such injuries
"will be recognized as a basis for accidental disability [even]
if . . . caused by an exclusively psychological trauma."
Patterson, supra,
194 N.J. at 44-45. This is referred to as the
Id. at 45.
"mental-mental category."
Patterson restated the test for claims for accidental
disability retirement benefits in the mental-mental category,
which was first articulated in Richardson v. Board of Trustees,
Police & Firemen's Retirement System,
192 N.J. 189, 212-13
A-3706-08T2
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(2007). In Patterson, the Court reiterated that the disability
must stem 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.
Under that 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.
By the addition of the latter
requirements to the Richardson template, we
assure that the traumatic event is
objectively capable of causing a permanent,
disabling mental injury to a reasonable
person under similar circumstances.
[Patterson, supra,
194 N.J. at 50.]
In other words, in addition to the analysis called for by
Richardson, accidental disability in the mental-mental category
requires "stressors sufficient to inflict a disabling injury
when experienced by a reasonable person in similar
circumstances." Ibid.
The ALJ found that Russo was eligible for accidental
disability retirement because he considered Patterson's
reasonable person test to be "fully satisfied under the known
facts of this case." In contrast, the Board, although it
A-3706-08T2
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adopted the ALJ's factual findings, reached the following legal
conclusions:
The ALJ incorrectly concluded that
Russo met the reasonable person standard.
In reaching his conclusion, the ALJ reasoned
that it would be [] "a harrowing and
frightful experience for a normal person,
untrained as a professional firefighter, to
enter a burning building to save the life of
another human being." The ALJ also reasoned
that this stress was added to by "the
suffocating heat and smoke [which] nearly
cost you your own life and forced you to
retreat to safety." However, there is no
evidence in the record to support these
conclusions, as all four police officers
left the residence without incident. It is
important to note that Mr. Russo's expert
witness opined that Mr. Russo's
confrontation with the victim's family
members, e.g. yelling and blaming him for
their loss, was a significant factor. In
fact, the expert referenced that incident as
a "second trauma." It is clear that this
second incident is the only difference
between [] Mr. Russo and the three other
police officers who left the house
unscathed. Furthermore, under Patterson,
being yelled at in and of itself does not
constitute a traumatic event. Patterson,
supra,
194 N.J. at 94.
The ALJ also incorrectly found that it
was reasonable for a police officer, with no
relation whatsoever to the victim of a fire,
to endure disabling "feelings of guilt and
helplessness" because he and the other
officers had to "abandon one of the trapped
occupants, whose lifeless body was later
stretched out on the front lawn in view of
grieving relatives who angrily accuse you of
not doing enough to rescue their loved one."
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The ALJ also found significant Russo's
"feeling the hypocrisy arising from being
praised for your supposed heroism, when deep
inside you genuinely believe that you have
disgraced yourself, acted dishonorably and
let down your co-workers." However, Mr.
Russo's remorse or feelings of guilt simply
do not establish that the incident is
objectively capable of causing a reasonable
police officer in similar circumstances to
suffer a disabling mental injury. As one of
several first responders to the scene, Mr.
Russo sought to make every effort to save
the occupants. Collectively, Mr. Russo and
the three other responding officers
determined that they could not safely enter
the second story of the building, and all
four officers left the residence without
incident. Moreover, Mr. Russo did not know
the victim, nor did he see the victim during
the rescue attempt. While it may be
reasonable to feel a degree of remorse in
this situation, it is clearly not within the
scope of a reasonable person for those
feelings to render a member permanently
disabled.
We begin our own analysis with the recognition of well-
concerning judicial review of
established principles
administrative agency actions. Our role as an appellate court
is restricted to four inquiries:
(1) Whether the agency's decision offends
the State or Federal Constitution; (2)
whether the agency's action violates express
or implied legislative policies; (3) whether
the record contains substantial evidence to
support the findings on which the agency
based its action; and (4) whether in
applying the legislative policies to the
facts, the agency clearly erred in reaching
a conclusion that could not reasonably have
A-3706-08T2
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been made on a showing of the relevant
factors.
[George Harms Constr. Co. v. N.J. Tpk.
Auth.,
137 N.J. 8, 27 (1994).]
On the whole, "[o]ur function is to determine whether the
administrative action was arbitrary, capricious or
unreasonable." Burris v. Police Dep't, Twp. of W. Orange,
338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway
State Prison,
81 N.J. 571, 580 (1980)). See also Aqua Beach
Condo. Ass'n v. Dep't of Cmty. Affairs,
186 N.J. 5, 15-16
(2006). "The burden of demonstrating that the agency's action
was arbitrary, capricious or unreasonable rests upon the [party]
challenging the administrative action." In re Arenas,
385 N.J.
Super. 440, 443-44 (App. Div.), certif. denied,
188 N.J. 219
(2006); see also Barone v. Dep't of Human Servs.,
210 N.J.
Super. 276, 285 (App. Div. 1986), aff'd,
107 N.J. 355 (1987).
We are constrained to agree with the Board in light of the
substantial deference we afford an administrative decision.
None of the four officers who responded to the fire suffered any
injuries beyond the smoke inhalation for which Russo was
treated. Although the sight of the lifeless body of the fourth
occupant of the burning building being removed was no doubt
traumatic for Russo and entitles him to receive ordinary
disability, police officers are trained to deal with injured and
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dead citizens under a multitude of horrific circumstances,
including homicides, automobile accidents and natural disasters.
It no doubt compounded Russo's trauma to be verbally berated by
the surviving family members of the deceased occupant. That
circumstance in and of itself, however, does not constitute a
traumatic event, as the Board pointed out in its written
See Patterson, supra,
194 N.J. at 33-34 (stating that
opinion.
only events in which "the physical integrity of" a member or
other person is seriously threatened qualify as a "traumatic
event."). Hence, we concur with the Board's conclusion that the
level of proofs necessary to "vault the traumatic event
threshold" has simply not been reached in this case. Id. at 50.
Russo has not met his burden of establishing that the Board's
decision was arbitrary, unreasonable and capricious.
Affirmed.
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