ELIZABETH BISHOP v. NUZZI & MASON L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1280-09T3

ELIZABETH BISHOP,

Plaintiff-Appellant/

Cross-Respondent,

v.

NUZZI & MASON, L.L.C.,

f/k/a Nuzzi, Mason

& Cabana, L.L.C., a New

Jersey liability company,

and VINCENT J. NUZZI, ESQ.,

individually,

Defendants-Respondents/

Cross-Appellants.

____________________________

Argued March 14, 2011 Decided April 28, 2011

 

Before Judges Lisa, Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4419-07.

 

Douglas J. Kinz argued the cause for appellant/ cross-respondent.

 

C. Edward Speidel argued the cause for respondents/cross appellants (The Spadaccini Law Firm, L.L.C., attorneys; Mr. Speidel, of counsel and on the brief).

 

PER CURIAM

Plaintiff Elizabeth Bishop1 appeals from an October 2, 2009 order denying her summary judgment motion and granting summary judgment dismissing her legal malpractice complaint against defendants Nuzzi & Mason and Vincent J. Nuzzi. Defendants cross-appeal from an August 28, 2009 order denying their motion to take plaintiff s deposition. We affirm the August 28 order, reverse the October 2 order, and remand this case to the Law Division for further proceedings.

I

Because this appeal arises from a summary judgment decision, we have reviewed the record de novo to determine whether there are material facts in dispute and, if not, whether the undisputed facts viewed in the light most favorable to the non-moving party entitle the moving party to judgment as a matter of law. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005).

A.

Plaintiff's malpractice suit was based on defendants failure to timely file a pension appeal. Therefore, we begin by describing plaintiff s pension claim. In 2000, plaintiff, a former Paterson police officer, filed a claim for an accidental disability pension, based on psychological damage caused by sexual harassment she suffered in 1998. The Medical Review Board found that plaintiff had developed post-traumatic stress disorder as "a direct result" of the 1998 "harassment at work," and that she was totally and permanently disabled from performing her job.

However, in a September 25, 2001 decision, the Police and Firemen's Retirement System Board of Trustees (Board) ruled that the incidents were not "traumatic events" for purposes of the disability statute and her disability was not "the direct result" of the harassment. The Board awarded her an ordinary disability retirement, which provided lower benefits than an accidental disability retirement.

Plaintiff then had forty-five days to appeal the Board's decision. Had a timely appeal been filed, she would have been entitled to an evidentiary hearing before an independent administrative law judge (ALJ), who would have rendered an initial decision which the Board could adopt, modify or reject. Plaintiff retained defendants to filed the appeal for her, but they failed to do so.

Four years later, on October 26, 2005, defendants finally sent the Board a letter requesting a hearing to appeal the 2001 decision. The Board voted to deny the application as untimely on November 14, 2005. In a December 13, 2005 final determination, the Board also noted that ongoing sexual harassment was the kind of "ongoing act" that did not constitute a traumatic event, and sexual harassment was not a "great rush of force" which the Board found was required to prove a traumatic event justifying an accidental disability pension. Notably, the Board's 2005 decision resulted not from a plenary hearing, to which plaintiff would have been entitled if she had filed a timely appeal, but from the letter that defendants filed on her behalf.

Plaintiff appealed the Board s decision to this court. We affirmed on the timeliness issue without addressing the merits of the claim. IMO Elizabeth Bishop, No. A-2349-05 (App. Div. July 16, 2007).2 Plaintiff then sued defendants for malpractice, claiming that but for their negligence, she would have been awarded an accidental disability pension.

There is no dispute on this record that defendants committed professional negligence by failing to file a timely appeal for plaintiff. However, in order to prevail on a malpractice claim, a plaintiff must prove that the negligence proximately caused the damages that she claims. See Jerista v. Murray, 185 N.J. 175, 190-91 (2005). In a legal malpractice case, the plaintiff must prove that but for defendant s negligence she would have won her case. Id. at 191. Generally, that requires a "suit within a suit," in which the plaintiff presents the case that she would have presented had she been able to pursue her claim, and the trier of fact must decide if she would have won that case. Ibid.

B.

 

On the summary judgment motion in the malpractice case, plaintiff presented to the trial judge, through certifications and expert reports, the proofs that she would have presented to an ALJ had defendants timely filed her administrative appeal. Defendants did not rebut plaintiff's evidence that she was subjected to sexual harassment. Rather, their defense was that, under the law as it existed in 2001, her proofs would have been insufficient to entitle her to an accidental disability pension.

This was plaintiff's evidence. Bishop was hired by the Paterson Police Department in 1990. Beginning in the fall of 1993, her supervising sergeant, Richard Benevento, began to sexually harass Bishop by giving her unwanted gifts, making improper remarks, and inciting his girlfriend to make threatening phone calls to her. The harassment culminated in an incident in December 1993, in which Benevento, who outweighed Bishop by more than 100 pounds, physically restrained Bishop and fondled her inside a patrol car while they were both on duty.

Bishop suffered psychological injury due to the harassment, and she eventually sought professional help and reported her sergeant's conduct to the Police Department. After an administrative disciplinary hearing in March 1994, Benevento was found guilty of misconduct and harassment directed at four female police officers, including Bishop. As a result, he was demoted and ordered to refrain from contacting Bishop. The City also paid Bishop a monetary settlement.

After receiving additional mental health treatment for the 1993-94 incidents, Bishop was able to return to work in 1995 and performed her job successfully until 1998. In the summer of 1998, she was reassigned to work at the main desk of the Paterson Police Department, which required that she have regular contact with Benevento. During that summer, plaintiff experienced a second round of harassment at Benevento's hands, culminating in a physical assault on or about August 24, 1998.

In that incident, which occurred at work, Benevento approached plaintiff from behind and held her in a bear hug while repeatedly thrusting his pelvis into her buttocks and forcing the front of her body into the desk. Bishop was so upset by this incident that she reported it immediately to her captain, who had to escort her home because she was too distraught to drive. Although plaintiff reported the assault to Internal Affairs and returned to work, the harassment continued and she was forced to leave her job due to the psychological trauma of the attack.

The City of Paterson filed an involuntary application on Bishop's behalf for ordinary disability under the Police and Firemen's Retirement System (PFRS) on November 12, 2000. On November 28, 2000, Bishop herself applied for an accidental disability retirement effective December 1, 2000. In her application, she claimed that she was unable to continue working as a patrol officer due to a depressive disorder caused by sexual harassment at the hands of her supervising sergeant.

Five medical experts agreed that Bishop was unable to continue working at the Paterson Police Department. Drs. Joseph M. Verret, M.D., and Konstantin Mouhtis, Ph.D., Bishop's treating doctors, co-authored a December 27, 2000 report on her mental health. They concluded that as a result of the harassment she had experienced, Bishop suffered from major depressive disorder and generalized anxiety disorder, and was "totally disabled from her work as a police officer."

On August 16, 2000, Dr. James R. Cowan, Jr., M.D., submitted a report about Bishop's mental health to the Paterson Police Department's Internal Affairs Division. He opined that Bishop suffered from major depressive illness and post traumatic stress syndrome, and was "totally disable[d] and unable to work, secondary to her depression."

Dr. Max Goldberg, M.D., P.A., F.A.P.A., conducted an independent medical examination of Bishop for the Division of Pensions and Benefits. In a report dated March 4, 2001, he concluded that Bishop was exhibiting symptoms consistent with post traumatic stress disorder (PTSD), attributable to the 1998 harassment. He opined that the first round of harassment in 1993 and 1994 "resulted in anxiety and depression from which she recovered." However "[a] second series of incidents, a few years later, seemed to have undermined her emotional stability in [a] much more profound and lasting way [than the earlier incidents of harassment]." Dr. Goldberg's opinion was that, as a result of her emotional state, Bishop would "need to be in continuous treatment for the foreseeable future," and that she "is totally and permanently disabled from the performance of her duties."

Another evaluation was performed by Dr. John P. Motley, M.D., on May 24, 2001. As a result of this in-person interview, and his review of prior psychological evaluations, internal memoranda and other documentation of the harassment, Dr. Motley concluded that Bishop suffered from PTSD and major depressive disorder. As a result of this diagnosis, he opined that she was "totally and permanently disabled from the performance of her duties as a police officer in the Paterson Police Department." He also opined that her PTSD was caused by her "perception of harassment and threats by superior officers on the Paterson Police Department."

As noted earlier, the Medical Review Board agreed that Bishop was totally and permanently disabled as a direct result of the 1998 harassment. However, the PFRS Board initially rejected that conclusion, reasoning that "the incidents described occurring beginning in August 1998 were not 'traumatic events' as detailed by statute and court decisions and . . . your disability was not the direct result of the incidents described." The Board's decision provided no findings of fact or other rationale to support that conclusion. Bishop never had an opportunity to challenge that decision because defendants did not file her appeal.

C.

 

The Law Division judge denied plaintiff's summary judgment motion and granted judgment for defendants.3 In a written opinion, the judge reasoned that, because the Board rejected plaintiff s claim in 2005, she would not have succeeded in an administrative appeal even if defendants had timely filed one for her in 2001. He also reasoned that, because the Board s decision was consistent with "the then existing law that governed" her application, plaintiff could not prove that an appeal to this court from an unfavorable Board decision would have succeeded.

Further analyzing the development of the case law concerning accidental disability pensions, the judge reasoned that from 2001 until 2007, the law was unclear as to what constituted the kind of "traumatic event" that would entitle an employee to an accidental disability pension. He concluded that the standard did not become clear until the Supreme Court issued its 2007 decision in Richardson v. Board of Trustees, Police and Fireman's Retirement System, 192 N.J. 189 (2007), clarifying that the term "traumatic event" referred to an "accident" and did not necessarily require that an employee have been injured by "a great rush of force." See Kane v. Bd. of Trs. Police & Firemen's Ret. Sys., 100 N.J. 651, 663 (1985).

Based on his analysis, the judge reasoned that, had Bishop filed an appeal with this court prior to 2007, she would have had no more than an "even chance" of succeeding. Thus, he concluded that plaintiff could not prove, by a preponderance of the evidence, that she would have prevailed on her claim. Because she could not prove that defendants' malpractice caused her any damages, the judge found that she had no viable cause of action against them. As discussed at length in part III, infra, we appreciate the judge's thoughtful analysis of the issue, but we take a different view of the law as applied to this record.

II

Before addressing that legal analysis, however, we consider defendant's cross-appeal, because it deals with the evidentiary record. Defendants claim, in essence, that Bishop sandbagged them by filing a certification on the summary judgment motion that provided a new, more explicit description of the 1998 harassment. They argue that they should have been permitted to depose her, based on this certification. In addressing this claim, we consider the events occurring during discovery.

The parties exchanged paper discovery, but defendants did not attempt to take plaintiff's deposition during the discovery period. Nor, apparently, did they attempt to depose Sergeant Benevento or any of Bishop's other former co-workers. The summary judgment record presented to us contains no certifications or other legally competent evidence to rebut Bishop's version of events or, for that matter, to rebut the opinions of the medical and psychological experts.

Based on the record presented to us, the materials available to defendants in discovery included plaintiff's interrogatory answers and multiple expert reports. A December 27, 2000 report from Bishop's treating psychologists, Drs. Joseph M. Verret and Konstantin Mouhtis, recited that Bishop told them that Benevento "physically assaulted" her and stalked her during the summer of 1998. Another examination report, prepared on August 2, 2001 by a psychiatrist, Dr. John P. Motley, also described the 1998 assault as well as the severe difficulty Bishop experienced in talking about it. According to Motley's report, Bishop described Benevento's renewed campaign of harassment. In particular, the report recites what Bishop told Dr. Motley about the 1998 assault and describes in parentheses Bishop's emotional reaction as she is telling Motley about the incident:

He [Benevento] needed the clipboard. He pushed his body into hers. She panicked and ran into the Captain's office. (She is sobbing at this point.) The Captain took her home. (At this point she is constantly sobbing and using sheets of tissues.) . . . She never told anyone how scared she [is] of this man.

 

Bishop's interrogatory answers, dated September 5, 2008, also described physical acts of harassment. She stated that in 1998, Benevento began "placing himself in physically intimidating positions next to me" and he "began blocking my path or that of my husband" and he "on one occasion bumped my husband in his shoulder." Her interrogatory answer continued by describing a sexual assault:

The new round of harassment culminated in an incident that took place on or about August 24, 2998, when Sgt. Benevento, acting under the guise that he needed my clipboard, purposely pushed his body into mine in a sexual way. This assault caused me to become distraught and unable to return to work.

 

[Emphasis added.]

 

Despite all of this discovery alerting them that Bishop was alleging that in 1998 Benevento physically assaulted her in a sexual manner, defendants did not take her deposition.

After the close of discovery, the parties filed summary judgment motions. Defendants filed a motion for summary judgment on July 10, 2009. Plaintiff filed a motion for partial summary judgment on liability, on July 14, 2009. In support of her motion, Bishop filed a certification on July 23, 2009, further describing the 1998 incident:

[W]hile acting under the guise that he needed my clipboard, Sgt. Benevento pushed his body into mine "in a sexual way." Specifically, Sgt. Benevento came up to me from behind, put his arms around me in bear-hug fashion, and then thrust the front of his pelvis into my buttocks so forcefully that I was pushed up against the desk, at which point he pushed up with his pelvis while reaching for the clipboard in front of me with his hand. Upon grabbing the clipboard, Sgt. Benevento thrust his pelvis hard once again against my buttocks before letting me go. As set forth in Dr. Morley's report, this assault made me so distraught that I ran into my captain's office, who had to drive me home. . . . Had I been given the opportunity to testify in an OAL proceeding as to the details of the 1993 and 1998 incidents described above, my testimony would have been identical to what I have stated here.

Based on plaintiff's July certification, defendants moved on August 5, 2009 for leave to take Bishop's deposition. By order dated August 28, 2009, Judge Brogan4 denied the motion because it was filed long after the close of discovery, defendants never sought to depose Bishop earlier, and they failed to show extraordinary circumstance justifying a discovery extension. Moreover, there was a scheduled trial date of September 20, 2009.

We find no abuse of discretion in Judge Brogan's decision. Defendants were on notice that plaintiff was claiming that Benevento physically assaulted her and that the assault was sexual in nature. They chose not to take her deposition. The fact that plaintiff's certification contained more details than her earlier description of the event did not constitute the kind of unfair surprise or change of testimony that might have justified a late deposition request. See Vitti v. Brown, 359 N.J. Super. 40, 51-53 (Law Div. 2003). Therefore, the summary judgment record properly constitutes the record for purposes of this appeal.

III

We next consider whether, based on that record, the motion judge's decision is sustainable as matter of law. We conclude it is not.

On this appeal, Bishop contends that the motion judge failed to focus on the pre-2007 case law concerning psychological, as opposed to physical, injury. She also argues that the judge should have more closely analyzed whether her claim would in fact have succeeded, and should have actually predicted the outcome of a hypothetical appeal. Defendants contend that Kane, supra, was the law in 2001 and Bishop would have lost an appeal if she had filed one. They also argue that even under the case law developed in 2007, Bishop would have lost an appeal.

We begin with the accidental disability statute, which provides that a PFRS member may receive an accidental disability pension, under these pertinent circumstances:

[p]rovided, that the medical board, after a medical examination of such member, shall certify that 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 . . . and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department. . . .

 

[N.J.S.A. 43:16A-7(1).]

 

At the time Bishop submitted her application, the Supreme Court had construed the statute as requiring proof that the employee had suffered an injury from an external source rather than from physical stress inherent in performing the job. In Cattani v. Board of Trustees, Police and Fireman's Retirement System, 69 N.J. 578 (1976), the Court held that a firefighter who suffered paralysis, due to the strain of fighting a fire combined with his existing unrelated health problem, did not suffer a traumatic event.

The Court reasoned that the statute required "much more than disability resulting from the aggravation or acceleration of a preexisting disease even though unusual or excessive work effort is involved." Id. at 585. Instead, the Court adopted this definition:

Trauma has been defined as "a wound; any injury to the body caused by external violence." The phrase "traumatic event" would ordinarily involve a mishap or accident involving the application of some kind of external force to the body or the violent exposure of the body to some external force.

 

[Id. at 586 (citations omitted).]

 

The Court held that "[s]ince Cattani's disability does not stem from an injury or wound produced by external force or violence, he has not satisfied the requirement of a traumatic event." Ibid.

In Kane, supra, 100 N.J. at 651, the Court refined the Cattani test to require that the accident that causes the injury be something more than a minor occurrence:

We think it consonant with the legislative intent to characterize a traumatic event as one that arises in cases in which a worker involuntarily meets with a physical object or some other external matter and is victim of a great rush of force or power that he himself did not bring into motion. As Cattani makes clear, the focus of inquiry is on the event itself rather than the injury. 69 N.J. at 586. The force or power must originate from sources other than the injured party. Hence, to 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 (emphasis added).]

 

The Court cited as examples of traumatic events, a situation in which a firefighter falls off a high ladder, is struck by a falling beam, or is blown off a roof by an explosion. Ibid. By contrast, a firefighter who strains his back while carrying a heavy ladder has not suffered a traumatic event, but has merely succumbed to one of the physical stresses inherent in the job. Ibid. Applying that rule, the Court held that a police officer who twisted his ankle stepping off a curb; an officer who stepped on a stone while getting out of a patrol car; and a firefighter who strained his wrist while opening a fire hydrant, all failed to meet the statutory standard for suffering a traumatic event. Id. at 664-65. Rather, they suffered "mishaps" that did not qualify under the statute. Id. at 664.

Both Cattani and Kane intended to honor the Legislature's effort to restrict the availability of accidental disability pensions, and to prevent employees from obtaining those higher pension benefits based on relatively minor mishaps or injuries attributable to the stress of the work itself. However, as the Court would later observe in Richardson, supra, 192 N.J. at 189, the Kane decision gave rise to confusion and inconsistent results, depending on how literally the deciding forum construed the "great rush of force" requirement. Id. at 192. As examples, the Court compared cases denying applications from employees injured in slip-and-fall accidents, (Maynard v. Board of Trustees, Teachers' Pension and Annuity Fund, 113 N.J. 169 (1988); Ciecwisz v. Board of Trustees, Policemen and Firemen's Retirement System, 113 N.J. 180 (1988)) with a later case granting benefits to two correction officers injured during attacks by inmates (Gable v. Board of Trustees, Public Employees' Retirement System, 115 N.J. 212 (1989)). Richardson, supra, 192 N.J. at 205-08. The Richardson Court confirmed that Gable correctly applied the statute, while the other two cases applied an incorrect standard. Id. at 211-12.

To clear up the confusion, Richardson specified that a "great rush of force" was simply an example of the kind of "accident" that could constitute a traumatic event. Id. at 212. The Court reasoned that the statute intended "to excise disabilities that result from pre-existing disease alone or in combination with work effort from the sweep of the accidental disability statutes and to continue to allow recovery for the kinds of unexpected injurious events that had long been called 'accidents.'"5 Ibid. Thus "a member who is injured as a direct result of an identifiable, unanticipated mishap has satisfied the traumatic event standard." Id. at 213.

In the later case of Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), the Court addressed "whether a permanent mental injury resulting from an exclusively psychological stimulus can vault that threshold." Id. at 43. Recognizing that psychological trauma can cause devastating mental disabilities such as PTSD, the Court held that

[a] permanently disabling mental injury, that is the direct result of a mental stressor that is identifiable as to time and place, undesigned and unexpected, external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work), that occurred during and as a result of the member's duties, and was not the result of the member's willful negligence, can qualify the member for an accidental disability retirement benefit.

 

[Id. at 48.]

 

However, the Court added that the mental stressor must be severe enough "to inflict a disabling injury when experienced by a reasonable person in similar circumstances." Id. at 50. Therefore, "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." Ibid. Notably, the Court upheld the dismissal of claims based on cruel or discriminatory language alone. Id. at 51. Patterson would not be on point here, because, viewing the evidence in the light most favorable to her, Bishop suffered a physical assault as well as verbal assaults.

Based on Richardson, we conclude that a police officer whose supervisor or co-worker launches a physical, sexual assault on her person, thereby causing her to suffer a debilitating case of post-traumatic stress syndrome, has suffered a "traumatic event" within the meaning of the statute. The question, however, is whether the courts would have accepted that view in 2001, when defendants should have filed Bishop's appeal.

Unlike the motion judge, we are reasonably confident that we can answer that question, and that the evidence in this case would have carried the day for Bishop, even pre-Richardson. First, the Board's 2005 response to defendants' tardy request for reconsideration may have reflected an inadequate presentation of evidence. We are not so sure that Bishop would have lost before the Board if she had been able to develop her evidence in detail at an Office of Administrative Law (OAL) hearing.

The sexual harassment at issue in the unreported case of Fackenthal v. Board of Trustees, Public Employees Retirement System, No. A-3993-00 (May 13, 2002), on which the Board relied, bore no relationship to the magnitude of what Bishop experienced. There, a supervisor brushed against the employee, kissed her cheek, and made one sexist remark. In this case, the supervisor directed an unremitting series of vile physical and verbal assaults on Bishop in 1993-94, causing her to become temporarily psychologically disabled. However, she recovered from this disability and returned to work for three years. Then, in 1998, the same employee physically assaulted Bishop in a sexual manner, leading to her permanent disability.

We would conclude that the facts, as they would have been developed at an OAL hearing, were much closer to Just-Cornelius v. Board of Trustees, State Police Retirement System, TYP 1804-95 initial decision (Aug. 29, 1997), adopted, Board (September 30, 1997), in which an ALJ held that the repeated use of graphic, sexually harassing language, without any physical contact, was sufficient to constitute a traumatic event. While Just-Cornelius might not survive Patterson, it was certainly precedent in 2001.

Moreover, a physical assault of the type Bishop described in her certification would constitute a "great rush of force." Kane, supra, 100 N.J. at 663. Indeed, if a corrections officer assaulted by an inmate would qualify for an accidental disability pension, it is difficult to understand why a police officer assaulted by her supervisor or co-worker would not also qualify. See Gable, supra, 115 N.J. at 224-25. See also Fairweather v. Public Employees' Retir. Sys., 373 N.J. Super. 288, 301 (App. Div. 2004)(an employee who was pulled off balance by a delirious patient, causing the employee to fall down icy steps, qualified for an accidental disability pension). We do not conclude that the law was so unsettled in 2001 that Bishop would not have had at least a 51% chance of prevailing on her accidental disability claim.6 We therefore reverse the order granting summary judgment to defendants.

IV

In light of our conclusion that defendants were not entitled to summary judgment, this matter must be remanded to the Law Division for further proceedings. Our review of the briefs on this appeal reveals that neither party properly briefed the issue of whether plaintiff was affirmatively entitled to summary judgment on the liability issue. However, even if we consider her cross-appeal, we could not conclude that she was entitled to summary judgment. In considering plaintiff's motion, we must view the evidence in the light most favorable to defendants. Estate of Hanges, supra, 202 N.J. at 525. So viewed, there are material disputes of fact as to the nature of the harassment plaintiff experienced at the hands of Sergeant Benevento.

A review of the entire record presented on the summary judgment motions reveals at least some evidence that Bishop did not consistently describe the August 1998 incident as involving a physical assault.7 While there was certainly enough evidence to put defendants on notice that she claimed a physical assault, and hence to alert them to the need to take her deposition, that is a different question from whether she is entitled to summary judgment on that factual question. We conclude that she is not entitled to summary judgment on liability.

Therefore, we remand this case to the Law Division to conduct the "trial within a trial" to which plaintiff would have been entitled if defendants had timely filed her administrative appeal. In this case, both sides agreed that the Law Division judge should decide the issue of proximate cause, a position they confirmed at oral argument. Therefore, the proceedings on remand should be conducted as a bench trial. That is also consistent with the adjudication plaintiff would have received before the agency - her administrative appeal would have consisted of a bench trial before an administrative law judge, who would have rendered findings of fact and conclusions of law.

On remand, the critical issues are whether and to what extent plaintiff suffered one or more physical assaults at the hands of Benevento, and whether those assaults directly caused the post-traumatic stress and depression that led to her disability. After making factual findings based on the evidence presented at the trial on remand, the Law Division judge should then apply the law as we have described it in this opinion to determine whether plaintiff would have prevailed in her claim for accidental disability benefits, either before the Board or on an appeal to this court. Should plaintiff prevail on the merits of her malpractice claim, the Law Division judge should also determine the amount of her damages.

Affirmed in part, reversed in part and remanded.

 

 

 

1 Plaintiff is referred to as Elizabeth Nieves in many of the earlier documents in the record. Prior to her retirement, she married a fellow police officer and took her husband's last name, Bishop.

2 In response to our inquiry, both counsel advised us that neither the October 26, 2005 letter nor the Board's December 13, 2005 decision were presented to the trial court as part of the summary judgment motions that gave rise to this appeal. Our description of the letter and the Board decision is drawn from our 2007 opinion. Bishop, supra, slip op. at 4.

3 The judge also determined that because plaintiff's success or failure turned purely on a matter of law, the court and not a jury should decide the issue of whether plaintiff would have succeeded in an appeal. Neither party challenged that determination on this appeal.

4 Judge Brogan was the civil presiding judge. He did not adjudicate the summary judgment motions.

5 Explaining the unwarranted liberality that caused the Legislature to amend the statute to its present restrictive form, the Court described earlier decisions thus: "It [qualifying trauma] was no longer limited to unexpected mishaps like falls, banister collapses, and car crashes. It now included heart attacks sustained by workers with longstanding heart disease who were simply doing their jobs at the time of their heart attacks." Id. at 198.

6 While the motion judge cited Pushko v. Board of Trustees, Teachers' Pension and Annuity Fund, 202 N.J. Super. 98 (App. Div.)(Pushko I), remanded, 102 N.J. 349 (1985), and 208 N.J. Super. 141 (App. Div. 1986) (Pushko II), as examples of the unsettled state of the law after Kane, we read Pushko as emblematic of this court's disinclination to permit a badly injured employee to go without a remedy. Indeed, the Court in Patterson later approved the basic approach set forth in Pushko I. See Patterson, supra, 194 N.J. at 47.

7 We required the parties to provide us with all of the materials, other than the briefs, filed by each side in support of and in opposition to the motions.