MICHAEL BUCCILLI - v. BOARD OF TRUSTEES STATE POLICE RETIREMENT SYSTEM -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5143-09T2

MICHAEL BUCCILLI,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, STATE

POLICE RETIREMENT SYSTEM,

Respondent-Respondent.

___________________________________

June 27, 2012

Argued January 25, 2012 - Decided

Before Judges Cuff, Lihotz, and Waugh.

On appeal from the Board of Trustees, State Police Retirement System.

Eric H. Lubin argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Louis M. Barbone, on the brief).

Eileen S. DenBleyker, Senior Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Danielle P. Schimmel, Deputy Attorney General, on the brief).

PER CURIAM

Michael Buccilli appeals from the final agency decision of the Board of Trustees (Board) of the State Police Retirement System (SPRS), which denied his application for accidental disability retirement benefits. Because we conclude that Buccilli did not satisfy the standard required for accidental disability retirement benefits in a "mental-mental" disability case, we affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Buccilli became a member of the New Jersey State Police in March 2002. On April 19, 2005, Buccilli went to the State Police shooting range to complete firearms qualification. Buccilli arrived in his Class B uniform, on which he had sewn a yellow bar that was only to be worn on his Class A uniform. At the time, Buccilli was not aware that the yellow bar was not supposed to be worn on his Class B uniform.

Throughout the day, Buccilli was teased by a sergeant and several troopers about being "out of uniform." Trooper Michael Stonnell called the Bass River station, to which he and Buccilli were then assigned, to joke about the incident with other troopers assigned there. At the time, Buccilli understood the comments directed at him as jokes.

On April 22, following his annual physical examination, Buccilli reported to the Bass River station to complete a training program. When Buccilli arrived at his locker, he noticed several yellow pieces of paper, about the size of the yellow bar he had sewn onto his uniform, taped to his locker. He concluded they were placed there by his fellow troopers as a joke, and threw them away. When Buccilli went to a computer at the station to sign in, he noticed comments next to his name in the computer system stating that he was "sewing [the yellow] bars on his civilian clothes." Buccilli continued to believe that the pieces of paper and remarks were intended as jokes, but would have preferred that nothing had been entered in the computer system. Buccilli next went to his mailbox, where he found more yellow pieces of paper. He threw them away and proceeded to work on his training module.

Before Buccilli completed his training, Sergeant Stephen Burns instructed him to prepare for patrol. When Buccilli returned to the locker room, he noticed that more imitation yellow bars had been placed on the bench near his locker. He opened his locker, which had a previously-broken lock, to find that someone had used what appeared to be "yellow-out" correction fluid to paint a yellow bar on his Class A uniform.

Buccilli reported to Burns that his uniform had been damaged, but asked Burns not to report it because he feared the potential backlash of an internal investigation. Buccilli confronted Stonnell, whom he believed was responsible for the damage to his uniform. Stonnell denied the allegation. Burns subsequently reported the incident to Sergeant Andrew Randik. It was also brought to the attention of Lieutenant David Jillson.

On April 27, Buccilli's next scheduled day of work, Stonnell took lunch orders from everyone in the same room as Buccilli, but did not take one from Buccilli. On April 28, Stonnell confronted Buccilli about rumors circulating in the station that Stonnell was the one who had gone into Buccilli's locker. As a result of his continuing problems, Buccilli became concerned that Stonnell and other troopers might not provide him with backup while on patrol.

On May 12, while off-duty for unrelated medical reasons, Buccilli received a call from Randik about overdue reports. Buccilli told Randik that he would report for work the next day to complete his reports, even though he was scheduled to take the day off for medical reasons. While working on his reports the following day, Buccilli heard Jillson comment to Sergeant Francis Donlan that personnel with outstanding reports should receive performance notices. When Buccilli turned in his completed reports, Donlan "berat[ed]" Buccilli for taking so long to complete his reports. Buccilli explained that he had been out of work due to a medical condition, and explained that the backlog of reports resulted from the large number of arrests he made in a short period of time.

On May 18, Buccilli reported for an assignment in the Detective Bureau. When he arrived, he found a negative performance notice from Randik in his mailbox. It criticized him for failing to make entries in his vehicle log. Because two other troopers had been allowed to update their log books that day without receiving performance notices, Buccilli believed that he was being singled-out for criticism.

Buccilli then asked to speak to Jillson, whom he told about the locker incidents and the negative treatment he believed he was receiving. He told Jillson he wanted it to stop. Fearing further retaliation, however, Buccilli requested that Jillson not initiate an Internal Affairs investigation. Although Jillson told Buccilli he would handle the situation informally, he subsequently informed Buccilli that he had no choice but to report the locker incidents to Internal Affairs.

On May 21, Buccilli received a telephone call from another trooper who told him that there were rumors that he started an investigation against the Bass River station and that he thought he was working harder than the other troopers there. The trooper also told Buccilli that troopers at the station were afraid to speak with him because they believed he would record their conversations. On May 24, two troopers ignored Buccilli when he said hello.

On May 27, Jillson informed Buccilli that, effective June 3, he would return to patrol duty. The length of Buccilli's shift on patrol duty was also increased. Jillson told Buccilli that his assignment and schedule were changed due to personnel shortages. On June 2 and 3, Buccilli received telephone calls from troopers assigned to other stations that a rumor was spreading that Buccilli had initiated a discrimination investigation.

On June 3, the last day he worked, Buccilli met with Jillson and Randik. They discussed the incidents and rumors involving Buccilli, as well as the performance notice he had received from Randik. Nevertheless, after the meeting, Buccilli believed that his concerns remained unresolved.

While on patrol the night of June 3, Buccilli suffered a panic attack. He testified that he feared for his safety, particularly because he was afraid that his fellow troopers would not provide him with backup in the event he needed it. However, Buccilli has conceded that he never experienced such a situation, was never threatened by fellow troopers, and was never told that other troopers would not provide him with backup if needed.

After June 3, Buccilli began psychiatric treatment with Dr. Theresa Bell. In February 2006, Buccilli received a letter informing him that he would not be reenlisted as a State Trooper.

Buccilli applied to SPRS for accidental disability benefits in February 2006. The Board denied his application in May 2008. Buccilli appealed, and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. The OAL hearing took place in March 2010.

At the hearing, Buccilli testified to the facts outlined above. Bell's testimony on behalf of Buccilli was offered through a video deposition. She diagnosed Buccilli with "major depressive disorder, single episode, severe." Bell testified that Buccilli's symptoms were initiated and "perpetuated" by "the situation at work," and his fear that his colleagues would not provide him with backup. She also testified that Buccilli's symptoms were more the result "of a combination of events," or ongoing workplace problems, and that Buccilli's symptoms did not meet the criteria for post-traumatic stress disorder.

The Board offered Dr. Leon Rosenberg as an expert in psychiatry. Rosenberg's diagnosis was consistent with Bell's diagnosis. He determined that Buccilli was totally and permanently disabled as a result of his work as a member of the State Police due to major depressive disorder and generalized anxiety disorder. Rosenberg agreed that Buccilli's symptoms were the result of cumulative events and that they did not meet the criteria for post-traumatic stress disorder.

On April 22, 2010, the administrative law judge (ALJ) denied Buccilli's application for accidental disability benefits. Buccilli filed exceptions and the Board replied. The Board adopted the ALJ's findings of fact and conclusions of law on May 25, 2010. This appeal followed.

II.

Buccilli argues on appeal that the Board erred in adopting the ALJ's finding that he had not satisfied the requirements for accidental disability benefits. He takes specific issue with the conclusion that there was no qualifying traumatic event.

A.

Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reason ableness. City of Newarkv. Natural Res. Council, 82 N.J 530, 539, cert. denied, 449 U.S 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appel lant. See Barone v. Dep't ofHuman Servs., Div. ofMed. Assistance &Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J 355 (1987).

The reviewing court "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 reApplication of Virtua-WestJersey Hosp. Voorhees fora Certificate of Need, 194 N.J. 413, 422 (2008); see also CircusLiquors, Inc. v. GoverningBody of Middletown Twp., 199 N.J. 1, 9-10 (2009). An appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." MayflowerSec.Co.v.BureauofSec.,64 N.J.85, 93(1973).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In reHerrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't ofCivil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In reN.J. Pinelands Comm'nResolution PC4-00-89, 356 N.J.Super. 363, 372 (App. Div.) (citing Brady v.Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen.Hosp. v. N.J. Hosp.Rate Setting Comm'n, 98 N.J. 458, 468 (1985) (citing Mayflower Sec. Co.v. Bureau of Sec., 64 N.J. 85, 93 (1973)). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes v. TerminixInt'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. ofMed. Assistance &Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. Inre Taylor, 158 N.J. 644, 657 (1999).

Finally, we recognize that "the public pension systems are bound up in the public interest and provide public employees significant rights which are deserving of conscientious protection." Zigmont v. Bd. ofTrs., Teachers' Pension &Annuity Fund, 91 N.J. 580, 583 (1983) (citations omitted). "[P]ension statutes are 'remedial in character' and 'should be liberally construed and administered in favor of the persons intended to be benefited thereby.'" Klumbv. Bd. of Educ., 199 N.J. 14, 34 (2009) (quoting Geller v.N.J. Dep't of Treasury,Div. of Pensions &Annuity Fund, 53 N.J. 591, 597-98 (1969)). Pension statutes must also be liberally construed in favor of public employees because they represent deferred compensation for a government employee's service. Widdis v.Pub. Emp. Ret. Sys., 238 N.J. Super. 70, 78 (App. Div. 1990) (citations omitted). And, of course, a pension board must deal fairly with its members. See Fiola v.N.J. Dep't of Treasury,Div. of Pensions, Police& Firemen's Ret. Sys., 193 N.J. Super. 340, 351 (App. Div. 1984).

B.

To receive an ordinary disability retirement, the Board must find that

[the] member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the Division of State Police which the Superintendent of State Police is willing to assign to him and that such incapacity is likely to be permanent and of such an extent that he should be retired.

[N.J.S.A. 53:5A-9(a).]

To receive accidental disability benefits, which are enhanced, there must be a finding 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 disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duties in the Division of State Police which the Superintendent of State Police is willing to assign to him.

[N.J.S.A. 53:5A-10(a).]

In Richardson v. Board ofTrustees, Police &Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), the Supreme Court determined that an individual seeking accidental disability benefits 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 preexisting 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.

In Patterson v. Board ofTrustees, State PoliceRetirement System, 194 N.J. 29, 34 (2008), the Court held that an applicant claiming a mental disability stemming from a mental trauma (mental-mental claim) must establish a sixth factor:

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.

As outlined above, the Richardson-Patterson criteria1 require the applicant to prove each of the following in a mental-mental disability case: (1) permanent and total disability, (2) that is the 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 preexisting disease that is aggravated or accelerated by the work), (3) that occurred during and as a result of the member's regular or assigned duties, (4) that was not the result of the member's willful negligence, (5) resulting in incapacity to perform the member's usual or any other duty, Richardson, supra, 192 N.J. at 212-13, and (6) that resulted 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. Patterson, supra, 194 N.J. at 34.

III.

Applying the law to the facts of this case, we conclude that the ALJ correctly found that Buccilli had not satisfied the requirements for accidental disability benefits.

Buccilli demonstrated permanent and total disability resulting from the conduct of his fellow troopers, as to which conduct he identified specific times and places. As a result of the cumulative effect of those events, he is unable to perform the usual duties of a member of the State Police. The underlying events were undesigned and unexpected, occurred during Buccilli's assigned duties, and were not the result of his willful negligence. Although Buccilli himself initially viewed many of the events as attempts at humor, we will assume for the purposes of this opinion that some of them can fairly be described as "traumatic." As a result, we further assume that Buccilli has satisfied the first five of the Richardson-Patterson criteria.

Nevertheless, even giving Buccilli the benefit of every favorable inference from the underlying facts, there can be no question that he failed to demonstrate the sixth Richardson-Patterson criterion. There are simply no facts in the record to support a finding that Buccilli's disability "result[ed] from direct personal experience of a terrifying or horror-inducing event that involve[d] actual or threatened death or serious injury, or a similarly serious threat to [his] physical integrity." Patterson, supra, 194 N.J. at 34. None of the events upon which Buccilli relies come close to satisfying that requirement. In addition, Buccilli's unrealized fear that he could find himself facing such a situation without the support of his fellow troopers does not satisfy the sixth criterion. The "direct personal experience of a terrifying or horror-inducing event" must be an actual event, rather than an anticipated event that has never actually taken place.

Although we do not underestimate the serious consequences of the underlying events to Buccilli, they do not entitle him to the relief sought. Consequently, we affirm the Board's decision to deny his application for accidental disability benefits.

A

1 Richardson and Patterson interpreted language from the Police and Firemen's Retirement statute, N.J.S.A. 43:16A-6; N.J.S.A. 43:16A-7, which uses language similar to that contained in the State Police Retirement statute, N.J.S.A. 53:5A-9; N.J.S.A. 53:A-10.