CLEMENT KACKOS v. BOARD OF TRUSTEES PUBLIC EMPLOYEES' RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CLEMENT KACKOS,

Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT

SYSTEM,

Respondent.

___________________________________

November 1, 2013

Argued October 15, 2013 Decided

Before Judges Yannotti and St. John.

On appeal from the Board of Trustees, Public Employees' Retirement System, Docket No. 2-10-193721.

Robert E. Margulies argued the cause for appellant (Margulies Wind, attorneys; Mr. Margulies, of counsel; Jeffrey R. Kivetz, on the brief).

Jeffrey S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).

PER CURIAM

Clement Kackos appeals from a final determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), dated March 22, 2012, finding that he was not eligible for accidental disability retirement benefits. We affirm.

The facts are essentially undisputed. On September 11, 2001, Kackos was employed as a toll collector for the New Jersey Turnpike Authority and assigned to Exit 14B in Jersey City. Kackos claimed that, at approximately 9:15 a.m., he felt something like a "blast" or "concussion." He looked up and observed that one of the World Trade Center (WTC) towers had been hit by a plane. Kackos was outside of his booth when he saw a plane strike the other tower.

Kackos testified that he was "shaken" and "very nervous." He said observing the planes hitting the WTC towers "brought back" memories of his experiences in the Vietnam War, during which he had been involved in "explosions." Kackos returned to his home and watched the television coverage of the terrorist attack upon the WTC. He was scheduled to return to work the following day but was unable to do so. Kackos was later declared totally disabled and eligible for social security disability benefits.

Kackos filed an application for accidental disability retirement benefits pursuant to N.J.S.A. 43:15A-43, claiming he was permanently and totally disabled from the performance of his toll collector duties as a result of a traumatic event that occurred on September 11, 2001. The Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

The ALJ issued a decision dated August 1, 2005, in which she concluded that Kackos was entitled to the benefits he was seeking. The Board issued a decision dated September 22, 2005, rejecting the ALJ's initial decision. The Board found that Kackos did not qualify for an accidental disability pension.

Kackos appealed. While the appeal was pending, the Supreme Court decided Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), which modified the standards for determining eligibility for accidental disability retirement benefits. We remanded the matter to the Board for reconsideration in light of Richardson. Kackos v. Bd. of Trs., Pub. Employees' Ret. Sys., No. A-1200-05 (App. Div. Aug. 20, 2007).

Thereafter, the Board again referred the matter to the OAL for a hearing before an ALJ. At the hearing, Kackos presented testimony from Glenn R. Schiraldi, Ph.D., who was qualified as an expert in stress and post-traumatic stress disorder (PTSD). Schiraldi testified that he did not know whether Kackos's PTSD predated September 11, 2001. He stated, however, that Kackos's experience on September 11, 2001, was an "independent" cause of his PTSD.

The ALJ issued an initial decision dated November 28, 2011, finding that Kackos was not entitled to receive accidental disability retirement benefits. The ALJ determined that Kackos's disability was not due to a direct personal experience in a traumatic event. The ALJ additionally found that Kackos did not experience a traumatic event as a direct result of the performance of any of his regular or assigned duties. On March 22, 2012, the Board issued a final decision adopting the ALJ's decision. This appeal followed.

Kackos argues that (1) PTSD stemming from the September 11, 2001, terrorist attack meets the criteria for an accidental disability pension; (2) his disability resulted from the direct personal experience of witnessing the attack upon the WTC which involved a threatened serious injury to himself and thousands of victims who were ultimately harmed; and (3) he experienced the traumatic September 11, 2001, attack while performing his duties as toll collector assigned to the Turnpike's Exit 14B toll booth.

The standard of review that applies in an appeal from a state agency decision is well established. "Judicial review of an agency's final decision is generally limited to a determination of whether the decision is arbitrary, capricious, or unreasonable or lacks fair support in the record." Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223-24 (2009)). In reviewing an administrative decision, we ordinarily recognize the agency's expertise in its particular field. Ibid.

We are satisfied from our review of the record that the Board's decision is not arbitrary, capricious or unreasonable and is supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(D). Accordingly, we affirm the Board's determination substantially for the reasons stated by the ALJ, which were adopted by the Board. We add the following.

Pursuant to N.J.S.A. 43:15A-43, a member of the PERS 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 Richardson, the Court held, that in order to qualify for accidental disability retirement benefits, a member of the retirement system 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.

[Richardson, supra, 192 N.J. at 212-13.]

Thereafter, in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), the Court established an additional requirement that must be met when the member of a retirement system seeks an accidental disability pension due to a psychological disability arising from "an exclusively mental stressor." Id. at 50. The Court held that, to qualify for the benefits, "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. This requirement "assure[s] that the traumatic event is objectively capable of causing a permanent, disabling mental injury to a reasonable person under similar circumstances." Ibid.

Here, Kackos witnessed the terrorist attack on the WTC towers in Manhattan but he viewed those events from his toll booth in Jersey City. Kackos was not struck with any debris and he did not suffer any physical trauma. Furthermore, since Kackos observed the attacks from a distance, he was not faced with any direct threat of death or serious injury, and he did not witness a similarly serious threat to the physical integrity of any person in his physical proximity. We are therefore convinced that the ALJ and the Board reasonably determined that, while Kackos may be suffering from PTSD, his condition was not the result of the sort of "direct personal experience" that Patterson requires.

Moreover, the traumatic event that Kackos observed may have occurred while he was working but it was not the "result" of his performance of any assigned duty, as required by Richardson. In Richardson, the Court noted a traumatic event can occur while an employee is engaged in his ordinary work effort. Richardson, supra, 192 N.J. at 213-14. The Court explained that "[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." Id. at 214. The Court said that each of these examples "meets the traumatic event standard." Ibid.

Kackos's claim does not meet the traumatic event standard because the performance of his job duties played no role in the events of September 11, 2001. Many individuals observed the terrorist attack on the WTC towers. The fact that Kackos happened to be working at a distant toll booth at the time is too indirect to meet the standard established by Richardson.