BARRY MESMER v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM -
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3633-19
BARRY MESMER,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
__________________________
Submitted March 21, 2022 – Decided March 30, 2022
Before Judges Rothstadt and Mayer.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. xx-5049.
Alterman & Associates, LLC, attorneys for appellant
(Stuart J. Alterman and Timothy J. Prol, on the briefs).
Robert Seymour Garrison, Jr., Director of Legal
Affairs, PFRSNJ, attorney for respondent (Thomas R.
Hower, Staff Attorney, on the brief).
PER CURIAM
Petitioner Barry Mesmer appeals from a final agency decision by the
Board of Trustees (Board), Police and Firemen's Retirement System (PFRS),
finding he is not entitled to accidental disability retirement (ADR) benefits
under N.J.S.A. 43:16A-7. We affirm.
We summarize the relevant facts. Mesmer began working for the
Evesham Police Department in November 2006. On February 14, 2016, Mesmer
was dispatched in response to a call regarding a potential suicide. Based on the
address, Mesmer knew he was driving to the home of M.H.,1 an Evesham
Township firefighter. Mesmer described his relationship with M.H. as
professional, but stated they were not close friends.
When Mesmer arrived at M.H.'s house, a woman and her son ran out,
screaming "[h]e's inside, he shot himself." Inside the house, Mesmer saw a
white dog splattered with blood and M.H. propped against the fireplace with a
shotgun under his leg and his head blown off. He also saw brain matter
everywhere and smelled the strong odor of gunpowder and blood.
Mesmer's supervisor instructed Mesmer to stay with the body to prevent
the scene from contamination. Mesmer did not touch the body, nor did he see
the body being removed from the house. After the body was removed, Mesmer
1
We use initials to protect the identity of the suicide victim and his family.
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2
was assigned to comfort M.H.'s wife and son. He also transported M.H.'s
daughter to the police station.
After completing his shift on February 14, Mesmer felt depressed and had
trouble disassociating from the incident. When he returned to work two days
later, Mesmer attended a debriefing to discuss the incident. Mesmer did not
speak during the debriefing because he felt uncomfortable discussing his
feelings in the aftermath of M.H.'s suicide. Mesmer told his supervisor he was
sleeping poorly, experiencing flashbacks, and reliving the incident. A chaplain
sent Mesmer home and recommended he take time off from work.
After the incident, Mesmer saw a psychiatrist. When Mesmer returned
to work, he performed clerical jobs and used headphones to help him focus on
work tasks. Although he attempted to return to his normal work routine, Mesmer
concluded he was unable to continue working as a police officer.
In June 2017, more than one year after M.H.'s suicide, Mesmer filed for
ADR benefits, alleging a mental disability. On January 9, 2018, the Board
denied Mesmer's application for ADR benefits, finding the traumatic event was
not undesigned and unexpected. The Board also found the incident was not a
terrifying or horror-inducing event that would be objectively capable of causing
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permanent mental disability to a reasonable person. Consequently, Mesmer
received ordinary disability retirement benefits.
Mesmer asked the Board to reconsider denial of ADR benefits. The Board
declined. Mesmer appealed the Board's decision, and the matter was transferred
to the Office of Administrative Law.
An administrative law judge (ALJ) conducted hearings on August 22,
2019 and October 1, 2019. During the hearings, Mesmer testified he never
handled a suicide involving someone he knew and was not trained or prepared
to witness the gruesome scene on February 14, 2016. During his career on the
police force, Mesmer witnessed gruesome scenes before the incident with M.H.,
including seeing dead people who had been eaten by animals and smelling the
overwhelming stench of death from decaying bodies. Mesmer explained his
reaction to these deaths differed because he did not know those victims.
Mesmer also provided a brief description of his police academy training.
He recalled attending the New Jersey Police Academy but did not remember any
curriculum for responding to suicide scenes. However, Mesmer testified his job
responsibilities included: responding to domestic abuse calls, securing crime
scenes, controlling crowds in emergency situations, assisting in evacuations,
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4
performing rescues, and withstanding exposure to stress involved with assisting
families with incidents of suicide.
Mesmer's wife, Keli Mesmer, testified as well. According to Keli
Mesmer, after the incident on February 14, 2016, her husband disengaged from
her and the children. She testified "[t]hat incident fundamentally changed who
my husband is" because "he's not as open now, he gets irritated very easily, he
can't remember things, he's not as engaged with the kids."
Mesmer also offered the testimony of Dr. Garry Glass, a psychiatric
expert, who addressed causes associated with post-traumatic stress disorder
(PTSD). At the Board's request, Dr. Glass began treating Mesmer in June 2016.
Dr. Glass diagnosed Mesmer as suffering from PTSD attributable to the
February 14, 2016 incident. The doctor explained Mesmer was unprepared,
either by his training or work experience, for the events at M.H.'s home on
February 14, 2016. In an April 28, 2017 written report to the Board, Dr. Glass
opined Mesmer could not return to police work due to his PTSD.
In a March 17, 2020 written decision, the ALJ concluded Mesmer was not
entitled to ADR benefits. The ALJ found the events of February 14, 2016 were
terror or horror-inducing events which would cause a reasonable person in a
similar situation to suffer a disabling mental injury under Patterson v. Board of
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Trustees, State Police Retirement System, 194 N.J. 29 (2007). However, the
ALJ determined the event was not "undesigned and unexpected" under
Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007). The ALJ concluded
Mesmer was not placed in a situation where he lacked
equipment or training. He had previously been called
to gruesome scenes involving death and decaying
bodies. Further, although he did not anticipate his
reaction, Mesmer knew in advance that he was
responding to a potential suicide at the home of a man
he knew. As Dr. Glass testified, suicides often involve
gunshots, and before Mesmer entered the house he
knew that he could encounter the aftermath of a suicide
by gunshot.
Based on the testimony, "including Mesmer's job responsibilities, his
training and experienced, and the circumstances of the [i]ncident," the ALJ
concluded Mesmer failed to meet "his burden to demonstrate that the incident
of February 14, 2016, which is the cause of his disability, meets the 'undesigned
and unexpected' standard of Richardson and, therefore, he is not able to sustain
his application for ADR benefits."
On April 14, 2020, the Board modified the ALJ's initial decision, rejecting
the conclusion the incident satisfied the terrifying or horror-inducing prong
under the Patterson test. Additionally, the Board adopted the ALJ's conclusion
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the incident was not undesigned and unexpected" and thus denied Mesmer's
application for ADR benefits.
On appeal, Mesmer argues the ALJ erred in determining the incident on
February 14, 2016 was undesigned and unexpected. He also challenges the
Board's modification of the ALJ's decision regarding his failure to satisfy the
terror and horror-inducing prong under Patterson. He further contends the
Board's decision was not based on substantial credible evidence in the record
and the denial of his application for ADR benefits was arbitrary, capricious, and
unreasonable. We disagree.
"Our review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Fireman's Ret. Sys., 206 N.J. 14, 27 (2011) (citing 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."
Ibid. The party who challenges the validity of the administrative decision must
demonstrate it was arbitrary, unreasonable, or capricious. Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980).
We accord deference to the Board's interpretation of a statute it is charged
with enforcing. Thompson v. Bd. of Trs., Teachers' Pension & Annuity Fund,
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449 N.J. Super. 478, 483 (App. Div. 2017), aff'd o.b., 233 N.J. 232 (2018).
"'Such deference has been specifically extended to state agencies that administer
pension statutes,' because 'a state agency brings experience and specialized
knowledge to its task of administering and regulating a legislative enactment
within its field of expertise.'" Ibid. (quoting Piatt v. Bd. of Trs., Police and
Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015)).
Additionally, we will affirm an agency's findings of fact if "supported by
adequate, substantial and credible evidence." In re Taylor, 158 N.J. 644, 656-
57 (1999) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J.
474, 484 (1974)). "The choice of accepting or rejecting testimony of witnesses
rests with the administrative agency, and where such choice is reasonably made,
it is conclusive on appeal." Oceanside Charter Sch. v. Dep't of Educ., 418 N.J.
Super. 1, 9 (App. Div. 2011).
Accidental retirement disability benefits require an employee demonstrate
he or she "is permanently and totally disabled as a direct result of a traumatic
event occurring during and as a result of the performance of his [or he r] regular
or assigned duties." N.J.S.A. 43:16A-7(a)(1). "[A]n accidental disability
retirement entitles a member to receive a higher level of benefits than those
provided under an ordinary disability retirement." Patterson, 194 N.J. at 43.
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In Richardson, our Supreme Court held a claimant seeking ADR benefits
must prove 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 . . . ;
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, 192 N.J. at 212-13 (2007).]
A claimant who has suffered a "permanent mental injury caused by a
mental stressor without any physical impact can satisfy the Richardson
standard." Patterson, 194 N.J. at 48. The Patterson Court held:
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
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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.
[Id. at 34.]
Subsequently, the Court identified a two-part analysis to be applied in
cases asserting a permanent mental incapacity resulting from "an exclusively
psychological trauma." Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 426 (2018). "The court first determines whether the member directly
experienced 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. (quoting Patterson, 194 N.J.
at 50). If the event meets the Patterson test, the court then applies the
Richardson factors to the member's application. Ibid.
As the Court noted 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."
206 N.J. at 33. However, "the Board and a reviewing court must carefully
consider not only the member's job responsibilities and training, but all aspects
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of the event itself. No single factor governs the analysis." Mount, 233 N.J. at
427.
We first address whether the Board erred in modifying the ALJ's initial
decision that the events of February 14, 2016 satisfied the terror or horror-
inducing requirement under Patterson. Having reviewed the record, we agree
with the ALJ's finding that Mesmer suffered a terrifying and horror-inducing
event on February 14, 2016. The gruesome discovery of M.H.'s death by suicide
from a self-inflicted gunshot wound to his head was the direct cause of Mesmer's
PTSD and subsequent mental disability. Despite the absence any personal threat
to his safety, the traumatic event Mesmer experienced on February 14, 2016 was
"objectively capable of causing a reasonable person in similar circumstances to
suffer a disabling mental injury." Patterson, 194 N.J. at 34. As a result of the
horrific event, Mesmer had trouble concentrating, disengaged from his family,
and failed to return to work as a police officer. Based on the undisputed medical
testimony, Mesmer suffers a disabling mental injury stemming from the horrific
event of February 14, 2016.
Because Mesmer met the Patterson test, we next examine whether he
satisfied the "undesigned and unexpected" prong under Richardson. On this
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record, we agree Mesmer failed to satisfy the undesigned and unexpected
requirements to warrant ADR benefits.
In Richardson, satisfaction of the "undesigned and unexpected" prong
requires an event "extraordinary or unusual in common experience" and not
"injury by ordinary work effort." Richardson, 192 N.J. at 201 (quoting Russo,
62 N.J. at 154). "The polestar of the inquiry is whether, during the regular
performance of [the member's] job, an unexpected happening . . . occurred and
directly resulted in the permanent and total disability of the member. Id. at 214.
Here, Mesmer failed to satisfy the undesigned and unexpected
requirement under Richardson. Mesmer's job functions as of February 14, 2016,
included protecting accident scenes, preventing destruction of evidence,
providing support at crime scenes, examining ill or injured persons, removing
dead or injury persons from vehicles at crash scenes, communicating with
distraught persons, and withstanding exposure to and dealing with stress
involving incidents of suicide. Mesmer received training, both at the police
academy and through the course of his career in law enforcement, in responding
to situations involving graphic and gruesome deaths. Mesmer was not a rookie
officer and, during his career in law enforcement, he responded to at least ten
calls involving gruesome and disfigured dead bodies or serious injuries.
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Mesmer conceded he did not experience any disabling mental injury after
responding to those deaths and he returned to work without incident after each
of those events.
Additionally, while Mesmer knew M.H., the two men were not even
casual friends. Mesmer provided no evidence of any close, personal relationship
with the deceased that might have satisfied the undesigned and unexpected
requirement under Richardson.
Mesmer knew he was responding to a suicide at an address where he knew
the homeowner. On this record, nothing about the events of February 14, 2016,
fell outside the scope of Mesmer's general duties as a police officer. Given the
totality of the circumstances, it was not unreasonable for Mesmer to anticipate
the aftermath of M.H.'s suicide.
On this record, we are satisfied there is ample credible evidence
supporting the denial of Mesmer's application for ADR benefits and the Board's
decision was not arbitrary, capricious, or unreasonable.
Affirmed.
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