CLEMENT KACKOS v. BOARD OF TRUSTEES PUBLIC EMPLOYEES' RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1200-05T21200-05T2

CLEMENT KACKOS,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE

PUBLIC EMPLOYEES' RETIREMENT

SYSTEM,

Respondent-Respondent.

_______________________________________

 

Argued October 25, 2006 - Decided August 20, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from a Final Decision of the Board of Trustees, Public Employees' Retirement System, PERS # 02-10-193721.

Robert E. Margulies argued the cause for appellant (Margulies, Wind & Herrington, attorneys; Jeffrey R. Kivetz, on the brief).

Kellie L. Kiefer Pushko, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Kiefer Pushko, on the brief).

PER CURIAM

Appellant Clement Kackos (Kackos) appeals from a final determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), finding that Kackos was not entitled to accidental disability retirement pursuant to N.J.S.A. 43:15A-43 because, although Kackos was totally and permanently disabled from the performance of his regular and assigned duties, his disability was not the result of a "traumatic event." We reverse and remand the matter to the Board for reconsideration.

Kackos filed an application for accidental disability retirement on March 13, 2003, in which he claimed that he was permanently and totally disabled as a result of emotional distress resulting from his observation of the September 11, 2001, terrorist attack on the World Trade Center. By letter dated October 16, 2003, Kackos was informed that the Board had denied his application. Kackos filed an administrative appeal and requested a hearing. The Board granted the request and referred the matter for a hearing at the Office of Administrative Law (OAL) before an Administrative Law Judge (ALJ).

The matter was heard at the OAL on October 25, 2005. At the hearing, the PERS did not dispute Kackos' assertion that he was permanently and totally disabled from the performance of his regular and assigned duties. The PERS also conceded that Kackos' application was timely and there was no issue as to causation. The only issue in dispute was whether Kackos' disability was the result of a "traumatic event" occurring during and as a result of the performance of his regular or assigned duties.

Kackos testified that on September 11, 2001, he was employed as a toll collector for the New Jersey Turnpike Authority and was assigned to Interchange 14B in Jersey City. Kackos said that he felt the toll booth shake. He looked up and saw that one of the towers at the World Trade Center was on fire. Kackos said that he felt a blast, "like a force, or a concussion from the explosion."

The flow of traffic slowed and Kackos came out of his booth. Kackos observed the second plane fly into the other tower. Kackso testified that he felt a "bigger force because [he] wasn't protected so much by the booth." Kackos said that he got very nervous and started to shake. The experience "brought" him back to his time in Vietnam, where he had been in two explosions.

Kackos left work and went home. Kackos was scheduled to return to work the following day but he was unable to do so. Kackos testified that it took two weeks before he could return to work because, when he woke up in the morning, he had chest pains and was trembling. Kackos stated that he could not complete a full week's work. He had chest pains and felt dizzy. Kackos began to take time off.

Kackos went to a Veteran's Affairs (VA) facility and was referred to a counselor who advised him to enter a hospital. Kackos went to his personal physician, who also advised him to go to the hospital. However, Kackos did not want to go to a hospital at that time. He continued meeting with the counselor and also saw a psychiatrist at the VA hospital. The doctor prescribed certain medications. Kackos later was declared totally disabled and eligible for social security disability benefits.

The ALJ issued an initial decision dated August 1, 2005, in which she concluded that Kackos qualified for accidental disability retirement because he was totally and permanently disabled from the performance of his regular and assigned duties as a result of a "traumatic event" under the test established in Kane v. Bd. of Trustees, Police & Firemen's Ret. Sys., 100 N.J. 651, 663 (1985). Exceptions were filed on behalf of the PERS. The Board rendered a final determination dated September 22, 2005, in which it rejected the ALJ's initial decision, finding that Kackos' disability was not the result of a "traumatic event." This appeal followed.

Pursuant to N.J.S.A. 43:15A-43, a member of the PERS may be retired on an accidental disability pension if the member is "permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties . . . ." In Kane, supra, 100 N.J. at 663, the Court established the following test for determining whether the event that caused the disability was "traumatic." The applicant must establish that: 1) the injuries were not induced by the stress or strain of the normal work effort; 2) the worker met involuntarily with the object or matter that was the source of the harm; and 3) the source of the injury was a great rush of force or uncontrollable power.

However, while this appeal was pending, the Supreme Court decided Richardson v. Bd. of Trustees, Police & Firemen's Retirement Sys., N.J. (2007). In its opinion in that case, the Court observed that while a "traumatic event" may be established by a great rush of force, that is merely one example of an incident that may allow for the award of accidental disability retirement benefits. The Court stated that for purposes of determining whether an employee is entitled to accidental disability retirement, a "traumatic event" will be considered "an unexpected external happening that directly causes injury and is not the result of pre-existing disease alone or in combination with work effort." Id. at (slip op. at 32).

The Richardson Court set forth the modified "traumatic event standard." The Court stated that in order to obtain accidental disability retirement benefits, the member must establish:

1. that he is permanently and totally disabled;

2. as a direct result of a traumatic event that is

a. identifiable as to time and place,

b. undesigned and unexpected, and

c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

4. that the disability was not the result of the member's willful negligence; and

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Id. at (slip op. at 32-33).]

The Court additionally rejected the Board's assertion that the "traumatic event" standard cannot be satisfied if the member is injured by the "normal stress and strain" of the job. The Court stated that a traumatic event has not occurred when the "normal stress and strain" of a job combines with a pre-existing disease to cause injury. Id. at (slip op. at 34). The Court added:

That is quite different from saying that a traumatic event cannot occur during ordinary work effort. Indeed it can. A policeman can be shot while pursuing a suspect; a librarian can be hit by a falling bookshelf while re-shelving books; a social worker can catch her hand in the car door while transporting a child to court. Each of those examples is identifiable as to time and place; undesigned and unexpected; and not the result of pre-existing disease, aggravated or accelerated by the work. Thus, each meets the traumatic event standard. So long as those members also satisfy the remaining aspects of the statute, including total and permanent disability, they will qualify for accidental disability benefits.

[Ibid.]

Here, the Board found that Kackos' observation of the September 11, 2001 terrorist attack upon the World Trade Center from his toll booth on the New Jersey Turnpike was not a traumatic event under the Kane test. Because the Kane test has now been substantially modified by Richardson, we are convinced that the matter should be remanded to the Board for reconsideration in light of Richardson. We express no opinion as to whether the circumstances at issue here qualify as a traumatic event under the Richardson test.

We also express no view as to whether Kackos' response to the events of September 11, 2001, would meet the "traumatic event standard" under Richardson if the terrorist attack is considered to be a "purely psychic stimulus." See Moore v. Bd. of Trs., State Police Ret. Sys., 382 N.J. Super. 347 (App. Div.), certif. granted, 186 N.J. 365 (2006), and In re Patterson, 382 N.J. Super. 366 (App. Div.), certif. granted, 186 N.J. 364 (2006). See also Guadagno v. Bd. of Trs., Police & Firemen's Ret. Sys., No. A-1832-04T2 (App. Div. February 22, 2006), appeal pending, No. A-123-05. The Supreme Court may provide further guidance to the Board on that issue when the Court decides Moore, Patterson, and Guadagno.

 
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

(continued)

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A-1200-05T2

August 20, 2007