STEPHEN R. 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NOT FOR PUBLICATION WITHOUT THE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-6762-04T16762-04T1

STEPHEN R. MILLER,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S 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, Police and Firemen's Retirement System, PFRS # 3-10-29817.

Fred J. Klein argued the cause for appellant.

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; Jeff Ignatowitz, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Stephen R. Miller (Miller) appeals from a final determination of the Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS), finding that Miller did not qualify for an accidental disability retirement under N.J.S.A. 43:16A-7 because, although totally and permanently disabled from the performance of his usual duties, Miller's disability was not the result of a "traumatic event." We reverse and remand to the Board for reconsideration.

The following are the pertinent facts. Miller was employed as a sheriff's officer in Essex County. He filed an application for accidental disability retirement with the Division of Pensions and Benefits (Division), alleging in part that he was totally and permanently disabled as a result of a stress disorder arising from an incident that occurred on May 25, 2000. The Board denied the application. Miller filed an administrative appeal and the Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).

The matter was heard at the OAL on June 16, 2004. Miller testified that he had been employed in the sheriff's office since 1982. He became a detective in 1994. Miller had a "full time weapon" which he was required to carry at all times. In October 1999, Miller was accused by a girlfriend of committing an act of domestic violence. Miller asserted that D.S., the woman involved in the incident, had an "alcohol problem." According to Miller, at the time of the incident, D.S. was with him at his apartment. Miller discovered a quart bottle of vodka and poured it down the sink. Miller said that D.S. attacked him.

Three days later, D.S. went to the local police and filed a complaint alleging that Miller had assaulted her and falsely imprisoned her in his apartment. D.S. sought the issuance of a temporary restraining order, which was granted. Miller denied the allegations and filed his own complaint, alleging that D.S. had committed an act of domestic violence upon him. However, Miller was required to surrender his service weapon during off-duty hours, pursuant to a directive issued by the Attorney General that established a procedure for the seizure of weapons from municipal and county law enforcement officers who are alleged to be involved in incidents of domestic violence.

In November 1999, the Law Division judge dismissed the charges against Miller and vacated the temporary restraining order. The sheriff requested that the county prosecutor authorize the restoration of Miller's privilege to carry his service weapon during off-duty hours and that he be re-armed without any restrictions.

On May 25, 2000, Debra Cannella (Cannella), an assistant prosecutor in Essex County, and head of the prosecutor's Domestic Violence Unit, sent a letter to the sheriff advising that before the county prosecutor would consider re-arming Miller on a full-time basis, he must first attend and successfully complete a "group batterers program." Cannella wrote that, in the interim, Miller may be armed with his service weapon only while on active duty with the Sheriff's Office and he must return the weapon to his supervisor at the end of each shift. Cannella also wrote that Miller could not carry a firearm while off-duty and he was prohibited from possessing any personally-owned firearms.

Miller testified that when he read Cannella's letter, he was "in total shock" He said that he could not believe that this type of action was necessary. Miller asserted that the prosecutor's determination "devastated" him. He testified that he could not comprehend why he would have to attend a "group batterers program" before he could possess firearms, particularly in light of the disposition of the matter by the court. He said he was "floored" and "shocked by this news."

Miller was asked how he felt being off-duty without a weapon. Miller stated that he was "in great fear" of not being able to protect himself. He said that he had been carrying a weapon since he was eighteen years old and carried a firearm everywhere. Miller asserted that he had been responsible for placing people in jail and had received terroristic threats over the years. Miller said that he was "pretty nervous" that he would not be able to have a firearm in the off-duty hours.

Miller added that, after he received Cannella's May 25, 2000, letter, he continued to work. However, according to affidavits submitted by his friends, Miller became depressed and demoralized. In early 2001, he went out on sick leave because of stress. Miller saw a psychiatrist at that time. Miller refused to attend a "group batterers program" and his service weapon was never returned to him for use in the off-duty hours. Miller ceased working in May 2001. The PFRS did not dispute Miller's contention that he was permanently and totally disabled from the performance of his usual duties as a result of the psychiatric injury he sustained on May 25, 2000.

The ALJ issued an initial decision dated June 20, 2005. The ALJ determined that Miller's disability was not the result of a "traumatic event" under N.J.S.A. 43:16A-7, and the test established in Kane v. Bd. of Trustees, Police & Firemen's Ret. Sys., 100 N.J. 651 (1985). The ALJ determined that Miller had not shown that the injury he suffered was outside the scope of the normal stress and strain of his employment as a sheriff's officer. The ALJ further found that Miller had not established that his reading of the assistant prosecutor's letter involved a great rush of force or uncontrolled power. Miller filed exceptions to the ALJ's decision. However, by letter dated July 15, 2005, the Board notified Miller that it had adopted the ALJ's decision denying his application for accidental disability retirement. This appeal followed.

Pursuant to N.J.S.A. 43:16A-7(1), a member of the PFRS 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 a work-related accident constitutes a "traumatic event." The employee must show that: 1) his injury was not induced by the stress or strain of the normal work effort; 2) he 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. (July 24, 2007). In its opinion in that case, the Court revisited the "traumatic event standard" established by Kane. The Court stated that while a "traumatic event" may be established by a great rush of force, such an incident is merely one example of a "traumatic event" that may allow for the award of accidental disability retirement benefits. Id. at (slip op. at 32).

The Court modified the Kane "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 determined that Miller's reading of the assistant prosecutor's letter was not a "traumatic event" under the Kane test. The Board found that the incident was not outside the scope of the "normal stress and strain" of Miller's employment as a sheriff's officer. The Board further found that the reading of the letter did not involve a great rush of force or uncontrollable power. However, under Richardson, neither finding necessarily precludes a determination that the incident at issue here was "traumatic event."

In the circumstances, we are convinced that the matter should be remanded to the Board for reconsideration of its determination in light of the Supreme Court's decision in Richardson. We express no opinion as to whether the incident at issue here qualifies as a "traumatic event" under the Richardson test.

We also express no view as to whether Miller's reading of the letter is sufficient to establish a "traumatic event" under the Richardson test if the incident 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.

 

Miller also sought accidental disability retirement benefits as a result of an incident that occurred on July 7, 2000. While the Board found that the incident was a "traumatic event," it concluded that Miller was not totally and permanently disabled as a direct result of that occurrence. Miller did not pursue the matter at the administrative hearing.

(continued)

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A-6762-04T1

August 20, 2007