ALLEN OWENS v. BOARD OF TRUSTEES, POLICE AND FIREMENS RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3112-05T13112-05T1

ALLEN OWENS,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________________

 

Argued February 15, 2007 - Decided March 12, 2007

Before Judges Lefelt and Parrillo.

On appeal from a Final Agency Decision of the Board

of Trustees, Police and Firemen's Retirement System.

Samuel M. Gaylord argued the cause for petitioner

(Gaylord, Yuska & Rubinstein, attorneys; Mr. Gaylord, on the brief).

Jeff Ignatowitz, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant

Attorney General, of counsel; Mr. Ignatowitz, on the

brief).

PER CURIAM

Petitioner Allen Owens appeals from the denial by the Board of Trustees, Police and Firemen's Retirement System (Board), of an accidental disability pension on the basis that his disability was not the result of a "traumatic event" under N.J.S.A. 43:16A-7. We affirm.

The essential facts are not in dispute. Owens was formerly a corrections officer with the New Jersey Department of Corrections assigned to Trenton State Prison. On August 18, 1997, he responded to a "Code 33," which signals that a disturbance is in progress. At the time, Owens was in the North Compound, "about a minute away" from the incident occurring in the West Compound. By the time he arrived on the scene, the other officers had already confiscated the makeshift knives the inmates had in their possession. Upon arrival, Owens immediately assisted five other corrections officers in the process of restraining an inmate by putting handcuffs and leg shackles on him. During the course of rendering assistance, which lasted approximately five minutes, Owens saw other officers being assaulted by inmates and he himself was struck in the head although he did not seek immediate medical attention for any injury he may have received at that time. In any event, Owens continued working as a corrections officer for over two years after the incident until his retirement from service.

As a result of psychiatric stress from this incident, Owens eventually applied for accidental disability retirement benefits on August 2, 2004. Finding Owens totally and permanently mentally disabled from performing his duties as a corrections officer, but that the causative incident was not a "traumatic event," the Board denied his application and instead granted him an ordinary disability retirement benefit, effective April 4, 2000. Owens appealed and the matter was transferred to the Office of Administrative Law (OAL) as a contested case.

Following a plenary hearing, the administrative law judge (ALJ) affirmed the Board's determination. Significantly, the ALJ found that Owens "appeared on the scene when other officers already were in the process of restraining the inmate . . . [and that he] suffered his [physical] injury not from an offensive, unprovoked attack . . . but rather in [the] course of attempting to subdue and handcuff an unruly inmate . . . ." As to his psychiatric injury, the ALJ found that a corrections officer witnessing an altercation between inmates and staff is not so unusual or extraordinary as to constitute a "traumatic event," because the injury was induced by the "stress or strain of the normal work effort." On this score, the ALJ stated:

Petitioner does not meet this prong because he did not prove that he psychiatrically experienced the requisite great rush of force or uncontrollable power set forth in Pushko v. Board of Trustees, Teachers' Pension and Annuity Fund, 202 N.J. Super. 98 (App. Div. 1985). Under Pushko, Petitioner must prove that he experienced a blow to the mind that was no less than an externally applied blow to the body. Petitioner's proofs do not come close to meeting this standard as his testimony and evidence do not directly address the blow to the mind he suffered from the incident. I, therefore, CONCLUDE that Petitioner does not satisfy the third prong of the Kane traumatic event standard.

[emphasis added.]

The Board adopted the ALJ's decision denying Owens accidental disability retirement benefits. This appeal follows.

Our review of an administrative agency's determination is limited. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). It is only where an agency's decision is arbitrary or capricious, or unsupported by sufficient credible evidence in the record that it may be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). Moreover, it is the party who challenges the validity of the administrative decision who bears the heavy burden of showing that it was "arbitrary, unreasonable or capricious." Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980).

N.J.S.A. 43:16A-7(1) provides that a member of the Police and Firemen's Retirement System may be retired on an accidental disability pension if the member is found to be "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." The term "traumatic" describes "the event which results in a disabling injury, rather than the injury itself],]" Cattani v. Bd. of Trs., Police & Firemen's Ret. Sys., 69 N.J. 578, 586 (1976), and refers to a violent level of force or impact. Ibid.

In Kane v. Bd. of Trs., Police & Firemen's Ret. Sys., 100 N.J. 651 (1985), the Court, in an attempt to clarify the meaning of "traumatic event," fashioned this test:

[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.

[Id. at 663.]

For example, a fireman who is thrown off a roof of a building by a sudden explosion or a burst of flames, or is struck by a falling beam would qualify for an accidental disability pension. Ibid.

Assuming, without deciding, that psychic stimuli alone may otherwise qualify, compare Moore v. Bd. of Trs., State Police Ret. Sys., 382 N.J. Super. 347 (App. Div.), certif. granted, 186 N.J. 365 (2006), with In Re Patterson, 382 N.J. Super. 366 (App. Div.), certif. granted, 186 N.J. 364 (2006), the question here is whether Owens' psychiatric disability is due to such an overwhelming psychic or mental assault as to constitute a "great rush of force or uncontrollable power." We are satisfied, as was the ALJ and the Board, that under the facts found below, the source of Owens' disability was not a "traumatic event" under N.J.S.A. 43:16A-7.

Indeed, far from being exposed to an "uncontrollable power," by the time Owens arrived on the scene, the situation was clearly in the process of being brought under control. The inmates' handmade weapons had already been confiscated. Five other corrections officers were restraining a single unruly inmate and putting handcuffs and leg shackles on him. Whatever the level of inmate disorder that preceded his arrival, it is clear that it subsided significantly when Owens joined the effort to restrain the unruly inmate.

Moreover, at the time Owens was engaged in the normal duties of a corrections officer. He was not only trained, but required as part of his official duties to respond to inmate disturbances within the prison. Undoubtedly, corrections officers are expected to restrain and sometimes subdue unruly inmates. See Gable v. Bd. of Trs., PERS, 115 N.J. 212, 222-24 (1989). Thus, Owens' response to the signal for assistance was part of the normal work effort of a corrections officer. And, focusing on the nature of the event itself, while as a general proposition violent, unprovoked, offensive physical assaults by inmates are not a part of the "stress or strain of the normal work effort," id. at 224, that is clearly not what happened here.

In Gable, a corrections officer who qualified for an accidental disability pension became disabled as a result of three separate, "sought out," violent physical attacks. Id. at 215. First, an inmate threw baby powder into the officer's eyes, and slammed a heavy chair into his back. Ibid. Second, as he awoke a drunken inmate, Gable was kicked with such force that he was thrown against a concrete wall. Ibid. Finally, during an altercation, Gable brought an inmate down to the floor and "four officers and the inmate collapsed in a pile on top of Gable." Ibid. In the companion case in Gable, another officer "was propelled down a narrow flight of stairs by a 185-pound-plus prisoner." Id. at 218, 223.

Here, in stark contrast, although Owens was struck during the restraining effort, the injury required no medical treatment and resulted in no physical disability. As to the resultant mental injury, suffice it to say, objectively speaking, that the incident does not become "traumatic" simply based on Owens' personalized, particularized reaction to the psychic stimuli of a prison disturbance. Cf. Kane, supra, 100 N.J. at 661-63; Cattani, supra, 69 N.J. at 584-86; Moore, supra, 382 N.J. Super. at 356. Rather, we are satisfied that the scene encountered by Owens, as found by the ALJ, did not present such an overpowering psychological assault on his mind as to render him a victim of a "great rush of force or uncontrollable power." In our view, the incident at issue cannot reasonably be characterized as a "traumatic event" to qualify Owens for an accidental disability pension.

 
Affirmed.

A member of the Police and Firemen's Retirement System who retires on an accidental disability pension is entitled to receive two-thirds of his final compensation as a retirement allowance, N.J.S.A. 43:16A-7(b), compared to a member who does not qualify for an accidental disability and retires on an ordinary disability pension, the amount of which is based on years of creditable service, subject to a minimum of 40% of final compensation. N.J.S.A. 43:16A-6.

(continued)

(continued)

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A-3112-05T1

 

March 12, 2007