Opinion
DOCKET NO. A-4650-13T3
10-29-2015
GLENN ZADROGA, Petitioner-Appellant, v. POLICE AND FIREMAN'S RETIREMENT SYSTEM, Respondent-Respondent.
Catherine M. Elston argued the cause for appellant (C. Elston & Associates, LLC, attorneys; Ms. Elston, on the brief). Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Dorfler, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from the Board of Trustees of the Police and Fireman's Retirement System, Docket No. 3-10-045094. Catherine M. Elston argued the cause for appellant (C. Elston & Associates, LLC, attorneys; Ms. Elston, on the brief). Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Dorfler, on the brief). PER CURIAM
Appellant Glenn Zadroga, a former Belleville Police Officer, appeals the decision of the Board of Trustees of the Policeman and Fireman's Retirement System (Board) denying his application for accidental disability benefits pursuant to N.J.S.A. 43:16A-7. The Board found appellant was involved in an incident on July 2, 2009, that left him "totally and permanently disabled from the performance of [his] regular and assigned duties." The Board denied appellant's application, however, because "the event that caused [appellant's] disability claim [was] not undesigned and unexpected."
In this appeal, both parties agree that the issue before us is entirely a question of law. Appellant argues the Board erred as a matter of law in denying his application for accidental disability benefits because the traumatic events appellant experienced while engaged in the performance of his duties as a police officer were "undesigned and unexpected" within the standards established by our Supreme Court in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189, 212-13 (2007). In response, the Board argues the incident that forms the basis of appellant's application is inherently associated with his training, experience, and responsibilities as a police officer, and thus cannot be characterized as "undesigned and unexpected" as a matter of law.
Ordinarily, we are bound to uphold an administrative agency's quasi-judicial decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27 (2007). However, because both parties agree that the issues raised in this appeal concerns purely a question of law, our review is de novo. Russo v. Board of Trustees, Police and Firemen's Retirement System, 206 N.J. 14, 27 (2011) (holding that questions of law are within the exclusive province of the judicial branch and a court is "in no way bound by an agency's interpretation of a statute or its determination of a strictly legal issue." (quoting Mayflour Sec. Co. v. Bureau of Sec, 64 N.J. 85, 93 (1973))).
Here, the Board adopted the Administrative Law Judge's (ALJ) findings, which described "the incident" that formed the basis for appellant's application for accidental disability benefits involved a high-speed car chase that ended with appellant witnessing a suspect run down his partner with the alleged stolen car. Appellant testified he heard the "thump of the impact which knocked his partner into the air." Appellant's partner shot and killed the assailant. The parties stipulated appellant "suffers from post-traumatic stress disorder (PTSD) as a result of the incident." (Emphasis added). Despite these uncontested facts, the Board adopted the ALJ's legal conclusion that the "incident" that caused appellant's psychological injury was not "undesigned and unexpected" under N.J.S.A. 43:16A-7(1), as construed by the Supreme Court in Richardson.
We disagree with the Board's legal conclusion and reverse. Applying a de novo standard of review, we hold the Board erred in denying appellant's application for accidental disability benefits pursuant to N.J.S.A. 43:16A-7(1). The Board's decision misconstrued the "undesigned and unexpected" standard in N.J.S.A. 43:16A-7(1). As Justice Long made clear on behalf of a unanimous Court in Richardson, "[t]he polestar of the inquiry is whether, during the regular performance of his job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member." Richardson, supra, 192 N.J. at 214.
Appellant's training and responsibilities as a police officer are not relevant factors in determining whether the event that caused this injury was "undesigned and unexpected." Although police officers are trained to deal with violent confrontations, the particular outcome of any incident is always fact-sensitive. Here, the undisputed facts established that an inherently dangerous high-speed pursuit through the streets of Belleville turned unexpectedly into a significantly more violent incident, causing appellant to sustain a permanent psychologically disabling injury.
In determining whether this "unexpected happening" was "undesigned and unexpected," we focus on the spontaneous and unforeseen actions of the suspect, who decided to intentionally run appellant's partner down with the alleged stolen car. We also take notice that despite appellant's arguably heroic efforts, the suspect managed to strike appellant's partner with the alleged stolen car with sufficient force to thrust him into the air. The assailant was killed by a single gunshot to the head fired by appellant's partner immediately before he was struck by the car.
The Board found appellant was permanently and totally disabled as a result of his diagnosis of PTSD, which was directly related to and caused by this incident. Additionally, the Board found this psychological injury met the eligibility standards for determining a permanent "mental injury" articulated by the Court in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29, 34 (2008). Based on these uncontested facts, we are satisfied the event that caused appellant's permanent and disabling psychological injury was "undesigned and unexpected" under Richardson as matter of law.
I
At the time of this incident, appellant was thirty-nine years old and had been involved as a law enforcement officer for the past twelve years. His law enforcement career included serving six months as a corrections officer in the State Department of Corrections assigned to the East Jersey State Prison in Rahway, a maximum security prison. Thereafter, he served three years as a police officer with the Essex County Police Department. Appellant received specialized training as an accident investigator while employed by Essex County.
Appellant's next law enforcement position was as a Police Officer in the Township of Belleville. At first, appellant continued to serve as an accident investigator, which included responding to the scene of serious accidents with severely injured people. In 2005, the Belleville Police Department established a Special Weapons and Tactics (SWAT) team. Appellant was assigned as one of the founding members of Belleville's SWAT team. In this capacity, he received specialized training in managing high-risk situations. Appellant's duties as a member of the SWAT team included executing high-risk warrants, which required forced entries into premises or structures used presumably by armed suspects to barricade themselves. However, the record does not contain specific information describing appellant's involvement in any prior incidents in which a suspect was killed and a fellow police officer was placed in mortal danger.
On July 2, 2009, appellant and his partner were involved in a high speed pursuit of a suspected stolen car with three occupants. The pursuit proceeded through residential neighborhoods in Belleville, at times reaching a speed of sixty-five miles per hour. The pursuit covered one and one-half miles, and lasted approximately four minutes. The chase ended when the suspects drove the alleged stolen car into a dead-end street. One of the three occupants was able to flee on foot. Appellant and his partner were able to block the suspects' car by placing their police vehicle perpendicular to the suspects' vehicle.
As appellant ran out of the police car to chase the suspect who had fled on foot, "he heard the suspects' vehicle engine rev." Appellant turned in time to see his partner standing outside the police vehicle, blocking the suspects' only possible escape route. At this point, appellant ran back to assist his partner. Appellant smashed the front window of the suspects' car and attempted "to grab the driver." Unfortunately, appellant was not able to reach the driver, who accelerated the car forward knocking appellant to the ground and striking appellant's partner.
The record before us includes a Police Incident Report which indicates that "[i]n the course of action Officer Zadroga struck the passenger side window of the vehicle with his right hand/arm causing injury to both. Officer Zadroga was taken to Clara Mass Hospital at this time he was treated for injuries to his right arm and was also treated for stress."
Although appellant did not actually see the suspects' vehicle strike his partner, he heard the "thump" of the impact. The suspects' car hit appellant's partner with sufficient force to propel his body into the air. Appellant also heard the sound of gunfire and saw the muzzle flash from his partner's service weapon. Appellant immediately went to assist his partner who suffered minor injuries. The driver of the suspected stolen car was shot and killed by a single gunshot to the head. The other occupant in the vehicle managed to drive away. He was subsequently apprehended.
II
On July 20, 2011, appellant applied to the Board for accidental disability benefits based on the psychological injuries he sustained as a result of his involvement in the July 2, 2009 incident. Appellant listed three specific manifestations of that injury to support his disability claim: PTSD; depression; and anxiety. In a letter dated June 19, 2012, the Board denied appellant's claim for accidental disability benefits on the ground that the July 2, 2009 incident was not "undesigned and unexpected." The Board found
no evidence that the event was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury; as your [sic] did not result from "direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person."
Consequently, the Board granted appellant Ordinary Disability benefits effective August 1, 2011. The Board informed appellant that he "may appeal [this decision] by submitting a written statement to the Board within 45 days after the date of written notice of determination." If such an appeal is sought, the Board would then determine whether to grant an administrative hearing before an ALJ. The Board, thereafter, granted appellant's request for an evidentiary hearing before an ALJ.
We note the term "appeal" as used by the Board under these circumstances is a misnomer because "[f]inal determinations of the PFRS Board of Trustees are reviewable only by this court." In re Town of Harrison, 440 N.J. Super. 268, 302 (App. Div. 2015); see also N.J.A.C. 17:4-1.7(e); R. 2:2-3(a)(2). --------
Appellant was the only witness who testified at the hearing before the ALJ. His testimony describing the event was thus unrebutted and accepted in its entirety. In his Initial Decision, the ALJ found the Board correctly denied appellant's accidental disability benefits. The only issue in contention was whether appellant's psychological injury was caused by an "undesigned and unexpected" event.
The statutory basis for appellant's application is found in N.J.S.A. 43:16A-7(1), which provides:
Upon the written application by a member in service, by one acting in his behalf or by his employer any member may be retired on an accidental disability retirement allowance; provided, that 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. The application to accomplish such retirement must be filed within five years of the original traumatic event, but the board of trustees may consider an application filed after the five-year period if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member.
In Russo, the Court reaffirmed the factors that govern whether a claimant is entitled to accidental disability benefits:
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.
[Russo, supra, 206 N.J. at 18 (quoting Richardson, supra, 192 N.J. at 212-13).]
The only factor at issue here is whether the event that caused appellant's psychological injury was "undesigned and unexpected." We need not restate the relevant facts. We are satisfied the Board erred in concluding the event experienced by appellant on July 2, 2009, was not "undesigned and unexpected" based in large part on the facts the Court focused on in Richardson. The appellant in Richardson was a corrections officer at South Wood State Prison. Richardson, supra, 192 N.J. at 193. In the course of assisting two fellow corrections officers subdue an unruly inmate, the appellant fell back onto his hand and hyper-extended his wrist. Ibid. The initial treatment he received proved to be ineffective; subsequent surgery performed to repair the injury was equally unsuccessful. Ibid.
As was the case here, the Board in Richardson denied the appellant's application for accidental disability benefits. Ibid. The central issue in Richardson was whether the injury sustained by the appellant was "traumatic" under N.J.S.A. 43:16A-7(1). Id. at 194. At the evidentiary hearing before an ALJ, two witnesses testified that such violent resistance from inmates was not part of the normal course of a corrections officer's duties. Ibid. Despite this uncontested record, the ALJ found the incident "did not constitute a traumatic event, because Richardson's response was part of the ordinary duties of a corrections officer. The Board adopted that decision." Ibid.
Writing for a unanimous Supreme Court, Justice Long reversed the Board. Although the central issue in Richardson concerned what constitutes a "traumatic" injury, Justice Long also addressed the central issue in this case, to wit, what are the relevant factors that we must consider to determine whether the incident that caused the traumatic injury was "undesigned and unexpected:"
The Board contends that because subduing an inmate is part of the anticipated work of a corrections officer and was not unexpected or unintended, Richardson cannot satisfy the traumatic event standard. That is a misreading of the statute, which requires that the traumatic event occur "during and as a result of the performance of [the member's] regular or assigned duties." To be sure, when the "normal stress and strain" of the job combines with a pre-existing disease to cause injury or degeneration over time, a traumatic event has not occurred. That is quite different from saying that a traumatic event cannot occur during ordinary work effort. Indeed it can. 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. Each of those examples is identifiable as to time and place; undesigned and unexpected; and not the result of pre-existing disease, aggravated or accelerated by the work. Thus, each meets the traumatic event standard. So long as those members also satisfy the remaining aspects of the statute, including total and permanent disability, they will qualify for accidental disability benefits.
In sum, the fact that a member is injured while performing his ordinary duties does not disqualify him from receiving accidental disability benefits; some injuries sustained during ordinary work effort will pass muster and others will not. The polestar of the inquiry is whether, during the regular
performance of his job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member.
[Id. at 213-14 (Internal citations omitted; emphasis added).]
Justice Long's reasoning in Richardson applies with equal force here. Plaintiff's experience as a police officer and as a member of Belleville's SWAT team does not vitiate the "undesigned and unexpected" nature of the incident, which resulted in his permanent, totaling disabling, psychological injury. Police officers' everyday experiences and activities may often be routine and ordinary. They can also unexpectedly turn dangerous and violent, based on events totally outside their control. Like the corrections officer in Richardson, appellant here was engaged in the performance of his duties when he encountered an event that unfortunately had a profound negative effect on his psyche. No one has questioned the validity of the injury. The Board's decision to deny appellant accidental disability benefits under these circumstances was based on a legally incorrect interpretation of the terms "undesigned and unexpected" in N.J.S.A. 43:16A-7(1).
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION