BRIANE K. WASHINGTON v. BOARD OF TRUSTEES POLICE & FIREMEN'S RETIREMENT SYSTEM

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1857-08T1

BRIANE K. WASHINGTON,

Appellant,

v.

BOARD OF TRUSTEES, POLICE &

FIREMEN'S RETIREMENT SYSTEM,

Respondent.

___________________________________________________________

September 27, 2010

 

Submitted September 14, 2010 - Decided

Before Judges Graves and Waugh.

On appeal from a Final Agency Decision of

the Board of Trustees, Police and Firemen's

Retirement System, Agency Docket No. PFRS 3-

10-033940.

Briane K. Washington, appellant pro se.

Paula T. Dow, Attorney General, attorney for

respondent (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Thomas E. Kemble,

Deputy Attorney General, on the brief).

PER CURIAM

Briane Washington (Washington), a former Essex County Correction Officer, applied for accidental disability retirement benefits as a result of a stressful incident on February 21, 2005, when an inmate spit in his face on two separate occasions. The Board of Trustees of the Police and Firemen's Retirement System (the Board) found that Washington was suffering post-traumatic stress disorder (PTSD) as a result of the incident and awarded him ordinary disability retirement benefits because he was permanently and totally disabled. However, the Board denied Washington's application for accidental disability retirement benefits, concluding that he did not satisfy N.J.S.A. 43:16A-7, which requires an employee 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."

Washington appealed and was granted an administrative hearing. Based on the evidence presented, an Administrative Law Judge (ALJ) determined that Washington was ineligible to receive an accidental disability pension. On appeal, Washington argues that he is entitled to an accidental disability pension because his disability resulted from "a traumatic event" on February 21, 2005. We affirm.

At his administrative hearing, Washington testified that his supervisor directed him to pick up an inmate at the University Hospital of Medicine and Dentistry (UMDNJ) in Newark and transport him to the Essex County jail on February 21, 2005. When Washington arrived at the hospital, the inmate was not restrained because he was getting dressed. Washington described what happened next as follows:

I noticed that he was pacing in the room and he was picking up things and he was done getting dressed. So, I told him to have a seat so I could put the shackles on him and handcuff him. At that time, he started cursing and being very belligerent and pacing back and forth and he was peeking his head out the door, like you know, he was looking for something down the hall.

And at that point, I'm thinking he's going to try to run. So, I told [him] to have a seat so we can put the shackles on and he starts cursing and screaming. So . . . as I went to approach him, he spat in my face. And when he spat . . . he dug down into his throat and put a blob of spit on [my] face.

 

. . . .

 

I had the cuffs, so I handcuffed him. When I went to go handcuff him, he spat again in my face and I had to restrain him.

 

Washington testified that after the inmate spit on him, he said: "Now you have what I have." In addition, the parties stipulated that, as a result of the incident, Washington suffered from PTSD and was permanently and totally disabled. The only disputed issue was whether Washington was eligible to receive an accidental disability pension.

Pursuant to our statutory scheme, job-related disability benefits are available to "individuals with disabling mental injuries." Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 44 (2008). To qualify for an accidental disability retirement pension, an employee with a permanent injury must satisfy the standards set forth in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007). In addition, an employee with a permanent mental injury must also satisfy the following requirement:

The 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. By that addition, we achieve the important assurance that the traumatic event posited as the basis for an accidental disability pension is not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.

 

[Patterson, supra, 194 N.J. at 34.]

 

In other words, the Court limited "accidental disability recovery to stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances." Id. at 50.

In the present matter, the ALJ found there was no credible evidence that the inmate "was actually transmitting a life-threatening disease" and that Washington failed to satisfy the additional test set forth in Patterson:

The remaining issue is whether the event was traumatic under the additional test enunciated by the Patterson Court for a mental-mental disability. It was not. There is no dispute that Washington had an overwhelming reaction of a fear of contracting HIV or AIDS as a result of the inmate's conduct. However, in applying the objective reasonable standard where the focus is on the nature of the conduct rather than on Washington's reaction to it, the inmate's spitting saliva into Washington's eyes and mouth, although disgusting, was not a terrifying or horror-inducing event in line with the examples given by the Patterson Court. This is so even if the inmate had uttered, "now you have what I have." Although Washington heard rumors after February 21, 2005, that the inmate might have HIV or AIDS, on that day he had no prior knowledge of this inmate's existence no less his real or rumored medical condition. He had no information or basis to presume that the inmate had AIDS.

 

. . . .

 

The question here is whether the event was terrifying or horror-inducing rather than merely frightening or as the Patterson Court says "inconsequential." In sum, although the event of February 21, 2005, gave cause for a degree of concern by Washington, it was not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.

 

The Board adopted the findings of fact and the conclusions of law of the ALJ, and our scope of review is limited. In re Taylor, 158 N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

In this case, the Board correctly applied the law and its decision is supported by substantial credible evidence. Consequently, the Board's final decision is neither arbitrary, capricious, nor unreasonable.

Affirmed.