IRMA NIEVES 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NOT FOR PUBLICATION WITHOUT THE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-0

IRMA NIEVES,

Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent.

_______________________________

December 8, 2015

Before Judges Lihotz and Fasciale.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PFRS #3-10-44693.

WilliamB. Hildebrand,attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Robert E. Kelly, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Irma Nieves appeals from an April 15, 2014 final decision of the Board of Trustees (the Board) of the Police and Firemen's Retirement System denying her application for accidental disability retirement benefits, N.J.S.A. 43:16A-7. Nieves, while working as a corrections officer employed by the Camden County Correctional Facility, entered into an inmate's cell and found him hanging by his bedsheet from the showerhead. The inmate died. Following the incident, Nieves did not return to work and was later diagnosed as suffering from post-traumatic stress disorder (PTSD).

Nieves was awarded total and permanent disability as a direct result of the event; however, her May 18, 2011 application for accidental disability retirement benefits was denied by the Board, which adopted findings and conclusions issued by an administrative law judge (ALJ) following an administrative hearing, as modified.

On appeal, we examine the Board's conclusion Nieves failed to satisfy the requirements for accidental disability retirement benefits by meeting the "mental-mental injury" test set forth Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), as well as the requirements outlined in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007). Based upon our review of the record and applicable law, we reject in part a portion of the Board's reasoning, but nevertheless affirm for other reasons the conclusion Nieves was ineligible for accidental disability retirement benefits.

The facts are found in the record, as recounted by the ALJ. Nieves was the sole witness during the administrative hearing.

Nieves began her employment as a corrections officer on December 30, 2002. A county correction officer's job description requires, among other things, she be physically and mentally able to "maintain security, safety and welfare of inmates and to react properly in crisis situations" as well as have the "ability to cope with crisis situations."

Nieves described her training, which involved arms training, tactical training, CPR training, and suicide awareness and prevention training. She also received specific preparation to address various types of crises a corrections officer would encounter during work, such as shankings, gang activity, fights, and medical emergencies. Nieves described the protocols to be followed and equipment used in the event an inmate attempted hanging. In her seven years as a corrections officer, Nieves was involved in five inmate suicide attempts, and had personal knowledge of other corrections officers who encountered inmate hangings and attempted hangings while on duty.

On November 13, 2009, Nieves was assigned as a "floater[,]" working in the Medical Department. Earlier in the day, she escorted an inmate to his cell and he asked to make a telephone call. Nieves explained he was required to wait until 3:00 p.m., as he was not fully processed and not permitted to be released into the general population. Sometime later, Nieves returned to the cell to retrieve the inmate for his medical exam. As she entered the room accompanied by the nurse, Nieves called the prisoner's name and received no response. She glanced toward the closed shower curtain and "noticed a piece of his sneaker in the shower." When she opened the shower curtain, Nieves found the inmate hanging from the showerhead by his bedsheet.

The nurse and another inmate started screaming. Nieves executed the procedures as she was trained. She radioed the emergency code and removed her cutters to slice through the bedsheets, during which she cut her hand. Another officer responded to the code and arrived to assist in releasing the inmate.

Nieves described the inmate's condition as "completely unconscious[,]" noting he "turned really dark[,]" "his color was off[,]" he "flopped down" and was "motionless." Once on the floor, the nurse commenced CPR and Nieves recalled hearing "his ribs crunching." Shock paddles were set up to revive him and Nieves became alarmed because the inmate was wet.

During her testimony, Nieves stated at that point: "I pretty much lost it . . . my motherly instinct came out[, and] I forgot I was an officer at that time[,]" because "you're not supposed to show a lot of emotion in that type of field." She found a crucifix and began to pray. Her Captain then removed her from the room. Nieves was first relieved when told the inmate survived, but was later devastated when informed "he was brain dead[,]" noting the prior suicide victims she encountered survived. Nieves stated, "after that I wasn't able to return back to work. I was pretty much ashamed and also felt responsible for not letting him make that phone call. I just I don't know, I just felt really responsible for that. Maybe if he would have called his parents . . . ." She added "if [she] hadn't been so busy, [she] probably would have let him make that phone call" and the inmate may have been able to speak to someone about his mental health, but he did not seem to be in distress at the time so she told him to wait. She further remarked: "But this one, I don't know, I took it really personal. And looking down on him was like looking at my own child. It was like he was somebody's child. It was the holidays. Somebody was going to mourn him." Later, Nieves was diagnosed with post-traumatic stress disorder and never returned to duty.

At the conclusion of the administrative hearing, in a written decision issued March 14, 2014, the ALJ denied Nieves' claim for accidental disability retirement benefits. The Board considered the matter on April 14, 2014, and adopted the findings and conclusions of the ALJ, as modified. This appeal followed.

"The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). In our review, "'the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Succinctly,

[o]ur review of administrative agency action is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. However, because "questions of law are the province of the judicial branch," Steven L. Lefelt et al., 37 New Jersey Practice: Administrative Law Practice 7.19 at 387 (2d ed. 2000), we are "in no way bound by an agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), particularly when "that interpretation is inaccurate or contrary to legislative objectives," G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999) . . . . Like all matters of law, we apply de novo review to an agency's interpretation of a statute or case law. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002).

[Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011).]

The statutory test for an employee seeking accidental disability benefits is set forth in N.J.S.A. 43:16A-7(1). When the disabling injury is "based on a mental injury arising out of a pure mental stressor with no physical impact[,]" qualification for benefits requires an additional threshold of proof, that is, evidence of a horrific event "'objectively capable of causing a reasonable person to suffer a disabling mental injury.'" Id. at 18, 31 (quoting Patterson, supra, 194 N.J. at 34).

In its most recent opinion on this issue, the Court clarified the requirements necessary to qualify for accidental disability retirement benefits resulting from mental stressors, by explaining the interplay between its prior holdings in Richardson and Patterson

In Richardson, we explained that to be eligible to collect accidental disability benefits, a claimant must show each of the following

1. that he [or she] 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, we affirmed that a mental disability arising out of a pure mental stressor with no physical impact can qualify a member for accidental disability benefits so long as the member satisfies the Richardson criteria and, in addition[:]

[t]he 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.]

[Russo, supra, 206 N.J. at 17-18.]

Prior reported opinions addressing mental-mental accidental disability retirement awards involved applicants who were personally involved in a traumatic event, which specifically threatened death, serious injury, or other trauma to the applicant's physical integrity. See id. at 18 (successful accidental disability retirement applicant was injured and the victim died during a "terrifying" fire rescue); Guadagno v. Bd. of Trs., Police & Firemen's Ret. Sys., supra, 194 N.J. at 53 (successful applicant subject of gang member's "credible threat" to harm him, then rape and murder his wife and daughter); Caminiti v. Bd. of Trs., 431 N.J. Super. 1, 20-22 (App. Div. 2013) (successful applicant who, in an attempt to subdue a violent drug addict, was stuck by his hypodermic needle); Hayes v. Bd. of Trs. of Police & Firemen's Ret. Sys., 421 N.J. Super. 43, 47-48 (App. Div. 2011) (successful applicant, a police officer, responded to a call and discovered her younger brother, a fellow officer, was shot in the face and thereafter, learned a gang hit was put out on her life). Compare Patterson, supra, 194 N.J. at 51 (finding superior officer's disparagement of applicant was insufficient to "vault the traumatic event threshold" for mental-mental injury); Moore v. Bd. of Trs., State Police Ret. Sys., supra, 194 N.J. at 36-37 (finding applicant subjected to "prolonged exposure to a racially hostile work environment" not a qualifying traumatic event for mental-mental injury).

The facts here are distinguishable from the above referenced cases as neither Nieves' life nor her safety were compromised or threatened by the incident. Rather, she was the first officer to respond to an inmate's attempted suicide and aided efforts to resuscitate him. The Board suggested Nieves' encounter with this horrific event, which it described as coming upon a dead body, was insufficient to qualify as a traumatic event entitling her to accidental disability retirement benefits.

We conclude the facts in this record are insufficient to properly address this determination; nevertheless, we cannot conclude Nieves' response met the "terrifying or horror-inducing event" standard, objectively "sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances[.]" Patterson, supra, 194 N.J. at 34, 50. We find Nieves' described response, relating the inmate to her own children, was idiosyncratic to her and not an objective response for a corrections officer in a similar position. She described the inmate as someone's child and envisioned the inmate's family mourning him as the holiday season approached. She also felt a sense of responsibility and shame for his death, suggesting the situation occurred because she was too busy to allow him to make the requested telephone call. Objectively, these can only be viewed as individual reactions and not a reasonable, objective response by a corrections officer in a similar position. Patterson, supra, 194 N.J. at 34.

Even if Nieves met the Patterson test, she also must show the events leading to her disabling mental injury satisfies each prong identified in Richardson. Patterson, supra, 194 N.J. at 50. Following our review, we conclude her proofs fail to satisfy the undesigned and unexpected prong mandated by the statute. See N.J.S.A. 43:16A-7(1); Richardson, supra, 192 N.J. at 212.

The discussion in Russo guides our analysis of the facts at hand. In Russo, the Court stated

In a mental-mental case, Patterson is the threshold that must be met for further inquiry to be warranted. Satisfying Patterson eliminates the problem of "idiosyncratic responses by members to inconsequential mental stressors," id. at 49, insofar as the events described in Patterson are of sufficient gravity to objectively cause a permanent, disabling mental injury to a reasonable person, id. at 49-50. . . . [W]here a qualifying horrific event is experienced, Patterson is satisfied with no further analysis. It is then that Richardson comes into play.

It is under Richardson that the member who has experienced a qualifying traumatic event must prove that the event, in fact, caused him to be permanently and totally disabled; that it was identifiable as to time and place; undesigned, unexpected, and external to the member; that it was work related; not self-induced, and that the member is unable to perform his usual or any other duty. Richardson, supra, 192 N.J. at 212-13. That is important because it underscores that not every person who experiences a Patterson-type horrific event will automatically qualify for a mental-mental accidental disability benefit. . . . [A]n 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, for example, 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.

[Russo, supra, 206 N.J. at 32-33 (emphasis in original).]

When considering the nature of the traumatic event presented here, within the context of Nieves' training and experience, we conclude although encountering an inmate who took his life was a horribly tragic event, it was an event falling within the crises Nieves as a corrections officer was prepared to likely encounter, and in fact had already encountered, in the course of employment. See Hayes, supra, 421 N.J. Super. at 46-47 ("The event must be horrific, one which falls outside the employee's job description, and for which he or she is not trained."). Consequently, we agree with the Board's conclusion the incident attributed to triggering Nieves' PTSD was not one which was undesigned or unexpected, as utilized in the statute. Accordingly, we reject Nieves' argument she did not anticipate this inmate would act as he did or that she would encounter an attempted hanging on the morning in question. While true, her stated expectations do not satisfy the undesigned or unexpected nature of the statutory test.

Nieves had been trained to address crises, including attempted suicides. Nieves received suicide prevention education along with training on procedures to follow when an inmate attempted suicide, fully demonstrating such an event was expected and corrections officers were required to intervene and act. Previously, she encountered five such instances of prisoners attempting to kill themselves. Also, she acknowledged she knew other officers who were required to cut down inmates while on duty in the facility. Further, Nieves was issued tools specifically used to cut down inappropriately used bedsheets.

On the date of the event, Nieves followed the steps outlined in her training: she radioed the proper alert for assistance, used the issued tool to cut down the inmate, and allowed medical staff to commence CPR. As noted in the Court's example in Russo, "an employee who experiences a horrific event which falls within his [or her] job description and for which he [or she] has been trained will be unlikely to pass the 'undesigned and unexpected' test" mandated by Richardson. Russo, supra, 206 N.J. at 33. That is the case here.

We also reject Nieves' inapposite analogy to the facts in Moran where we concluded it was "undesigned and unexpected" for a firefighter to suffer disabling physical injuries while heroically forcing down a front door with his body to save two people. Moran v. Bd. of Trs., Police & Firemen's Ret. Sys., 438 N.J. Super. 346, 354-55 (App. Div. 2014). The firefighter's inability to gain access was not expected because he did not have proper equipment to address the circumstance, necessitating he instead use his body. Id. at 355. To the contrary, the circumstances here are similar to the paramedic illustration discussed in Russo: Nieves was trained, had earlier encountered inmates' attempted hangings, and carried tools to address the circumstance, fully demonstrating the unfortunate likelihood of such an occurrence. See Russo, supra, 206 N.J. at 33. Encountering the inmate was startling and tragic; but it was something expected to be encountered in the prison facility, which Nieves' training was designed to address.

The remaining arguments raised by Nieves, which challenge the modified factual findings made by the Board and the addition of a conclusion based on that modification, are unavailing. Although the evidence presented could possibly support the modified fact, that is, "it appears that the inmate was deceased when [Nieves] cut him down" (distinguished from Nieves' challenge that the evidence does not support a finding the inmate had passed when encountered by Nieves), the Board's reliance on this fact does not alter our conclusion that the Board's finding is neither arbitrary or capricious. For the reasons we have discussed in our opinion, we conclude Nieves failed to satisfy the requirements for accidental disability retirement benefits.

Affirmed.