JUAN CORBACHO 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NOT FOR PUBLICATION WITHOUT THE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-1810-11T2

JUAN CORBACHO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

_______________________________

March 7, 2013

 

Submitted January 29, 2013 - Decided

 

Before Judges Messano and Lihotz.

 

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Docket No. 3-10-29559.

 

Steven J. Kossup, attorney for appellant.

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).

 

PER CURIAM

Petitioner Juan Corbacho appeals from a final decision issued by respondent the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS), denying his application for accidental disability retirement benefits. In denying petitioner's request, which was based on a mental disability, the Board concluded petitioner failed to satisfy the standards as clarified by the Supreme Court in Russo v. Board of Trustees, Police and Firemen's Retirement System, 206 N.J. 14 (2011). We agree and affirm.

The facts supporting petitioner's claim are taken from the Board's decision and are essentially undisputed. On September 1, 2000, petitioner, a four-year patrol officer for the Newark Police Department, was dispatched to a call for assistance with his partner, Officer Lawee Colbert, Jr. The officers responded to a domestic dispute call from a Newark residence to supervise the removal of a male and his belongings from his girlfriend's apartment.

Petitioner, the more experienced of the two officers, described the assignment as a "moving job[,]" which was considered "low priority[.]" However, when petitioner and Colbert arrived at the residence, the woman informed them her boyfriend had a gun, which she watched him load. Another witness confirmed seeing a loaded weapon. Also, the officers heard children in an adjoining apartment and noted other occupants in the area. Petitioner explained these facts elevated the assignment to one of "high risk[.]"

As he entered the apartment, petitioner saw a man who was over six feet tall, weighing approximately 250 pounds, with a thick neck and powerful build, who he learned was D.S. Petitioner saw a gun at D.S.'s left hip, and, in accordance with his training, "shouted out, 'Gun[!]'" to alert Colbert and others in the area of the threat.

The officers identified themselves and ordered D.S. to stop. D.S. was "surprise[d,]" to see police officers and became "very angry and desperate." He retreated to the apartment's kitchen. Although ordered "to come out," and told "'[l]et me see your hands,'" D.S. refused, taking "a concealment stance behind . . . the kitchen door frame." At times D.S. would "peek out . . . part of his head," revealing "his shoulder and his elbow in a bent position[,]" leading petitioner to believe D.S. was holding his weapon and "peeking out looking . . . to fire a shot."

Petitioner and Colbert kept their weapons drawn in a defensive stance. D.S. finally exited the kitchen, but the gun was not at his hip and his hands were not visible. After receiving orders "'to get on the floor,'" D.S. finally lowered himself to the floor, but continued to resist petitioner's attempt to handcuff him. Petitioner secured one handcuff when "all of a sudden" D.S. blurted out, "'Fuck this shit, I'm not goin' out this way, fuck ya.' And pushed off," throwing the smaller, lighter petitioner against the wall. Colbert continued to train his gun on D.S., who ran toward a large window, broke the glass, and brandished a piece of broken glass as a weapon, "swinging it back and forth" at the officers. At one point, D.S. held the glass to his neck, shouting "'Fuck this, I'm not goin' out this way. Y'all motherfuckers are gonna have to kill me, cause I'm not goin'. You're gonna have to kill me.'" D.S. repeatedly shouted "'Kill me,'" while moving closer to petitioner, who had again drawn his gun.

As D.S. advanced, petitioner moved backward until he encountered a wall. Petitioner froze so Colbert ordered him to move out of the way and took over. Moments later back-up officers arrived and secured D.S. in their custody.

Neither petitioner nor Colbert suffered "actual serious injury," and, in fact, no person was harmed. Petitioner testified he was concerned he "would be required to shoot the suspect," noting as he squeezed the trigger of his weapon, he "already imagined him dead, full of blood, everything." Colbert confirmed this account of events, adding "I started tearing at the eyes [be]cause I really thought I was gonna have to kill this guy, and I started squeezing the trigger."

Petitioner was diagnosed with "post traumatic stress disorder [(PTSD)], delayed onset, moderate to severe[,]" as a result of the September 1, 2000 incident. He was awarded disability retirement benefits. However, his request for accidental disability retirement benefits was denied. He appealed and the matter was transferred to the Office of Administrative Law (OAL) for a hearing.

An administrative law judge (ALJ), considered the evidence presented during a two-day hearing and recommended petitioner's application for accidental disability retirement benefits be denied. The Board adopted the ALJ's findings, concurred with the ALJ's conclusion, and denied petitioner's application on December 12, 2006.

While petitioner's appeal was pending, the Supreme Court provided additional guidance on the requirements for an accidental disability retirement award. See Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007), and Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29 (2008). In light of this new authority, by order dated October 18, 2017, we granted PFRS's motion to remand the matter to the Board for reconsideration of petitioner's application. The Board again denied petitioner's application, and, on petitioner's appeal, the matter returned to the OAL for additional proceedings.

Another two days of testimony was presented before a different ALJ.1 Prior to the release of the ALJ's initial decision, a third Supreme Court case was issued. See Russo, supra, 206 N.J. at 14. Petitioner's motion to reopen the record was granted and supplemental written submissions were provided. Reviewing the facts, a different ALJ recommended petitioner's application for accidental disability retirement benefits be granted.

Exceptions were filed by PFRS. The Board, in its review, rejected the ALJ's recommendation, finding the September 1, 2000 incident "did not result 'from direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury[]' as required under Patterson." Further, the Board rejected the ALJ's conclusion that the September 1, 2000 incident was "undesigned and unexpected[.]" The Board found the events were "not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury" because petitioner was "adequately trained to handle the detention and apprehension of suspects[,]" including those "who are uncooperative or resist restraint." Petitioner's appeal ensued.

Our scope of review of an administrative agency's final determination is limited. In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007) (citations omitted). We accord to the agency's exercise of its statutorily delegated responsibilities a "strong presumption of reason ableness[,]" City of Newark v. Natural Res. Council, 82 N.J 530, 539, cert. denied, 449 U.S 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and "are obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution 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). As a general rule, we will not disturb an administrative agency's determinations or findings because of doubts as to the wisdom of the decision or because the record may support more than one result. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973). Accordingly, this court's task is to ensure the agency's determination is based on substantial evidence and supported by the record. In re Carter, supra, 191 N.J. at 483 (citation omitted). However, we accord no deference to "the agency's interpretation of a statute or its determination of a strictly legal issue." U.S. Bank, N.A. v. Hough, 201 N.J. 187, 200 (2012) (internal quotation marks and citations omitted). Our review of such issues is de novo. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002).

The burden of proof "rests upon the person challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). We will set aside an agency's final decision only if a challenger presents "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 Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citations omitted). See also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009) (same).

This appeal addresses a request for specific statutory retirement benefits. While a petitioner may "qualify for ordinary disability benefits if he is disabled for any reason[,]" to qualify for accidental disability benefits, a petitioner must demonstrate he experienced a traumatic work-connected event. Russo, supra, 206 N.J. at 28. Accordingly, a PFRS member who is permanently disabled is entitled to enhanced accidental disability retirement benefits2 only when

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 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 duty and of any other available duty in the department which his employer is willing to assign to him.

 

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

 

As is clear from our factual recitation, the Supreme Court has clarified and refined the framework of N.J.S.A. 43:16A-7(1) through a trilogy of cases. Consideration of these opinions is critical to our review of petitioner's arguments.

In Richardson, the Supreme Court explained eligibility to collect accidental disability benefits requires a claimant to show each of the following five elements:

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.

 

[Supra, 192 N.J. at 212-13.]

 

In Patterson, the Court considered whether an award of accidental disability retirement benefits could be based on a "permanent mental disability as a result of a mental stressor, without any physical impact," described as a "mental-mental injury[.]" Supra, 194 N.J. at 33. The Court examined whether such a condition could satisfy the "traumatic event" requirement of the statute, recognizing a mental-mental permanent disability "presents a unique set of challenges" as "'the proofs related to the traumatic nature of an event and the causal relationship between event and injury may be more problematic than in the case of a physical event.'" Russo, supra, 206 N.J. at 31 (quoting Patterson, supra, 194 N.J. at 48-49).

The Court "established a high threshold for the award of accidental disability benefits based on a mental injury arising out of a pure mental stressor with no physical impact[,]" ibid. (citing Patterson, supra, 194 N.J. at 50), concluding a member must also prove

[t]he disability . . . result[ed] 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 Russo, the Court revisited the application of the standards enunciated in Richardson and Patterson, clarifying that, when analyzing a mental-mental application, the threshold showing must be a Patterson-type traumatic event that is "'not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.'" Supra, 206 N.J. at 18 (quoting Patterson, supra, 194 N.J. at 34). "[W]here a qualifying horrific event is experienced, Patterson is satisfied with no further analysis." Id. at 32. Thus, in a mental-mental case, the member must first meet the prongs delineated in Patterson, showing events "of sufficient gravity to objectively cause a permanent, disabling mental injury to a reasonable person[.]" Ibid. (citing Patterson, supra, 194 N.J. at 49-50). "It is then that Richardson comes into play." Ibid.

Turning to the facts at hand, it is not disputed petitioner is permanently and totally disabled. However, the Board rejected the claim for accidental disability retirement benefits for two reasons. First, it found petitioner failed to prove a Patterson-type event which was "objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." Patterson, supra, 194 N.J. at 34. Second, petitioner did not show the events alleged to cause his mental disability were "undesigned and unexpected[.]" Richardson, supra, 192 N.J. at 212. On appeal, petitioner argues the Board arbitrarily rejected the ALJ's recommendations, maintaining the evidence satisfied all factors outlined in Patterson and Richardson.

In Patterson, the Court examined claims filed by three separate petitioners, Robert Patterson, Glynn Moore, and Joseph Guadagno, to discern whether the claims were supported by a finding of a permanently disabling mental injury. Patterson was ostracized and ridiculed after he allegedly broke his girlfriend's nose and was charged with domestic violence. Id. at 34-35. Moore related racially motivated taunting and abuse, being ordered to participate in racial profiling, witnessing the brutal beating of an African-American woman, and receiving death threats because he would not persuade a friend to drop a racial profiling suit against a fellow officer. Id. at 36-37. Finally, Guadagno was subjected to death threats and claims his wife and daughter were exposed to rape by compatriots of an imprisoned gang member, who added details demonstrating knowledge of his and his family's personal life, including where they lived and worked. Id. at 38-39.

Applying its newly announced standard, the Court found Patterson's claims failed to allege a terrifying or horror-inducing event. Id. at 51. However, Moore's and Guadagno's claims of death threats were remanded for further review to discern whether the events qualified as traumatic events, as defined by the Court. Id. at 52-53.

The Court did not directly define "a terrifying or horror-inducing event that involve[d] 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, and it also declined to consider whether the death threats experienced by Moore and Guadagno actually qualified as Patterson-type events. Nevertheless, the Court provided illustrations of events that would vault the threshold. These included: "a permanently mentally disabled policeman who sees his partner shot; a teacher who is held hostage by a student; and a government lawyer used as a shield by a defendant[.]" Id. at 50.

Additionally, the events described in Russo were found sufficient to vault the traumatic event threshold. Supra, 206 N.J. at 33-34. Officer Russo, who had no firefighting experience, "was ordered into a burning building so full of intense heat and smoke that his uniform was singed," to attempt to save a trapped resident. The Court noted:

The intensity of the fire terrified and disoriented Russo, singed his uniform, and sent him to the hospital overnight for smoke inhalation. One person in the house, who cried out for help to Russo and his fellow officers, could not be reached because of the fire's ferocity and perished. Thereafter, the victim's family heaped scorn on Russo and blamed him for their relative's death. It was as a result of the fire and the confluence of events it generated, including the death of the victim and the relatives' accusations, that Russo was rendered permanently mentally disabled. Those circumstances plainly satisfied both Pattersonand Richardsonand, in our view, are exactly what the Legislature had in mind when it enacted the accidental disability statutes.

 

[Id.at 34-35.]

Finally, the Court drew on the Legislature's description of post-traumatic stress disorders and causal events found in N.J.S.A. 40A:14-198 and N.J.S.A. 40A:14-196, to reflect "traumatic event[s] that might be expected to result in a mental injury." Patterson, supra, 194 N.J. at 49. These include:

the firing of a weapon or an exchange of gunfire; serious bodily injury to or the death of a juvenile; a terrorist act; a hostage situation; serious bodily injury or the death of another law enforcement officer employed in the same agency, when the serious bodily injury or death occurred in the performance of the officer's duties.

 

[Ibid. (quoting N.J.S.A. 40A:14-196).]

We fail to find a similar factual predicate in this case. Here, petitioner, who recognized he was overmatched physically by D.S., faced an enraged, irrational, armed man, in a compact residential space, who was seemingly intent on killing or being killed. Petitioner described his fear, which was not based on any physical interaction with D.S. Rather, his "biggest fear or concern . . . was that [he] would be required to shoot the suspect[.]" Faced with such a prospect, petitioner froze, requiring his partner to take control.

Throughout these events, petitioner and Colbert were continuously armed; no shots were fired; the two officers successfully contained the movements of D.S. until back-up arrived; and no one was hurt, despite D.S.'s repeated threats. While we agree the events as they unfolded were tense and contained stressful, anxious moments, the circumstances are distinguishable from the qualifying examples provided by the Court. Petitioner's interaction with D.S. does not objectively rise to the level of threatened serious injury to petitioner's physical integrity, nor does it constitute the type of shocking or petrifying experience objectively sufficient to inflict a disabling injury. The Board's decision, concluding petitioner was permanently disabled but rejecting the circumstances as objectively causing that disability, are inferred to reflect an "idiosyncratic response[] by [a] member[] to inconsequential mental stressors." Patterson, supra, 194 N.J. at 49-50.

Assuming arguendo, the experiences of petitioner can be said to sufficiently satisfy Patterson's event test, they do not demonstrate Richardson's "undesigned and unexpected" requirement.3 See Russo, supra, 206 N.J. at 32-33. Thus, any claim for accidental disability benefits must fail.

Prior to undertaking this discussion, we first address a procedural issue. Petitioner argues the Board erred in allowing consideration of Russo, suggesting the Board had previously conceded in its initial May 14, 2008 denial of benefits, the events experienced by petitioner were undesigned and unexpected. Therefore, petitioner suggests the Board erred in re-examining the issue in its recent denial.

Because Richardson and Patterson were decided while petitioner's initial appeal was pending, a remand to the Board was ordered. Full consideration of the issues was undertaken and the ALJ heard two more days of testimony. Prior to the ALJ's recommendation, Russo was decided. At petitioner's request, the record was reopened to consider issues implicated by that recent decision.

Remand of this matter to the OAL allowed review of the applicable issues by a different ALJ. The parties stipulated petitioner was disabled by the events of September 1, 2000. However, whether the events were traumatic and supported the claimed mental disability were disputed issues. Additional evidence was submitted by petitioner, including photographs of the residence and testimony by his expert and by Officer Colbert. When the Court decided Russo, its impact was addressed by the parties.

The Board was not bound by the ALJ's decision to limit consideration of the disputed issues. We agree with the Board's conclusion its review must determine whether petitioner's evidence satisfied all applicable factors: not only the Patterson traumatic event test, but also the five factors set forth in Richardson. Moreover, the Board's determination issued on May 14, 2008, shows the Board had not undertaken review of the Richardson factors because the Board found petitioner failed to show events causing serious injury to his physical integrity or objectively capable of causing a disabling mental injury to a reasonable person facing similar circumstances. Accordingly, on remand all issues should have been addressed.4

It is clear, a member who experiences a traumatic event may nonetheless be unable to link the event to a disabling mental injury. The Court emphasized "not every person who experiences a Patterson-type horrific event will automatically qualify for a mental-mental accidental disability benefit." Russo, supra, 206 N.J. at 32. Illustrating this point, the Court noted

a member who experiences a Patterson-type horrific event and simply becomes upset will not satisfy the permanent and total disability standard. Likewise, one who has suffered long-standing psychiatric issues may fall short of the "direct result" standard. Similarly, an employee who experiences a horrific event which falls within his job description and for which he has been trained will be unlikely to pass the "undesigned and unexpected" test. Thus, . . . an emergency medical technician who comes upon a terrible accident involving life-threatening injuries or death, will have experienced a Patterson-type horrific event, but will not satisfy Richardson's "undesigned and unexpected" standard because that is exactly what his training has prepared him for.

 

[Id. at 32-33 (emphasis added).]

 

This passage serves as the foundation of the Board's analysis of the Richardson factors.

The Board considered the evidence of record,5 specifically petitioner's testimony, stating during his six-month police academy training he received instruction on apprehending suspects, discharging weapons, "search and seizure," use of a police baton, discharging mace, and disarming someone with a weapon. Petitioner acknowledged that during his four years as a police officer, prior to the September 1, 2000 incident, he routinely encountered suspects "[r]esisting arrest," or "guys trying to get away," which "usually" required him to "grab them" or resulted in "a little hassle on the floor" until he could restrain them. Further, Officer Colbert confirmed police academy training included instruction on "proper methods [for] restraining a suspect who is resisting" arrest and use of a service weapon.

These facts support the Board's finding petitioner was adequately trained for, and his job entailed, "apprehending suspects who were resisting arrest." Consequently, we will not disturb the Board's conclusion drawn from these facts that the events experienced by petitioner on September 1, 2000 were those for which he was trained and therefore not "undesigned and unexpected."

Following our review, we conclude petitioner has not shown the events experienced were trauma inducing. Further, he was fully trained to address the circumstances in which he was placed, as a police officer is expected to encounter suspects who are violent, may be armed, and/or resist efforts for apprehension. Petitioner encountered what he was trained to expect. We conclude accidental disability benefits were properly denied.

A

ffirmed.

1 Prior to this proceeding petitioner passed away as a result of unrelated events. Consequently, he provided no additional testimony.

2 Contrast N.J.S.A. 43:16A-7(2)(b) (providing accidental disability retirement allowance equates to "2/3 of the member's actual annual compensation") and N.J.S.A. 43:16A-6(2)(b) (stating total retirement allowance after a disability equates to "1 1/2 % of final compensation multiplied by his number of years of creditable service but in no event shall the total allowance be less than 40% of the member's final compensation").

3 The only Richardson factor in dispute is whether the events faced by petitioner were undesigned and unexpected.

4 We reject the Board's suggestion Russo "provided for a different application of the Richardson standards in a mental disability case [and] represented a significant change in the analytical construct for determining whether a mental disability was the result of a traumatic event." Russo merely clarified the objective nature of the traumatic event test set forth in Patterson and provided illustrations of how other facts may defeat satisfaction of causation elements necessary to meet the facts delineated in Richardson.

5 We recognize the Board accepted the ALJ's factual findings including "54. Petitioner had no training for this specific type of situation." Although at first blush this appears to be incompatible with the Board's finding that petitioner's training made the events expected, we do not believe this poses an irreconcilable inconsistency. The ALJ's finding is circumscribed as "this specific type of situation." The Board's findings, which we uphold, relate the petitioner's overall training, along with his four years experience on-the-job. Taken together, these provided skills necessary to address various types of street encounters, even though the "specific type of situation" that occurred here may not have been expressly addressed.