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Pushko v. Board of Trustees of Teachers'' Pension and Annuity Fund

Decided: June 3, 1985.

JOHN PUSHKO, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE TEACHERS' PENSION AND ANNUITY FUND, RESPONDENT-RESPONDENT



On appeal from the Final Decision of the Board of Trustees of the Teachers' Pension and Annuity Fund.

Pressler, Brody and Cohen. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

John Pushko appeals from the denial by the Board of Trustees of the Teachers' Pension and Annuity Fund (Board) of his application for accidental disability retirement. We reverse.

To a significant extent the relevant facts are undisputed. Petitioner was employed by the Elizabeth Board of Education as a physical education teacher in 1968 and worked in that capacity until February 1981 when he became permanently disabled. His disability is wholly psychiatric in nature. He suffers from the irrational and uncontrollable fear of returning to work and of harming children in the school environment. He claims that these disabling phobias resulted from a combination of three specific job-related incidents.

The first of these incidents occurred in the school gymnasium on October 19, 1977. Petitioner sent a student who had come into the gym class in street clothes "to the office." Sometime later, as petitioner was about to leave the gym, the student hit him across the mouth, causing dental injuries and oral bleeding. Petitioner pinned him to the ground. Finally, three other teachers seemed to have him under control, and petitioner started to walk away to attend to his injuries. The student apparently broke loose, picked up a cane that another student had and hit petitioner over the back of the head with it. He again subdued the student who was finally taken away by other school personnel. Petitioner not only sustained physical injuries in this attack but also developed psychosomatic symptomotology, including a chronic nervous cough, attacks of diarrhea, and insomnia. He also was "feeling different anxieties." The school's physician referred him to a psychiatrist under whose care he remained for 8 months. He had never before been

treated by a psychiatrist or had felt himself to be in need of psychiatric treatment. Apparently he attempted to return to work shortly after the incident but was unable to do so. As he described his problem, "I had the nervous cough. I came back to teaching and I just broke out in a cold sweat." He finally did return to work 6 months after the incident and was apparently able to function as a teacher for the next several years, although when he first returned to work he was, on the recommendation of his psychiatrist, assigned to duties other than his regular physical education classes.

The second incident occurred on December 22, 1980, just before the Christmas recess. Petitioner was teaching in the gym when a student whom he knew to be an extortionist came into the gym and attacked two students who had not paid him the required 25 cents a week. One of the students was on the floor bleeding and the other one was having difficulty breathing. As petitioner was trying to assist these boys, the assailant punched him in the chest and threatened to get a gun and kill him. Petitioner believed these threats. The psychosomatic symptoms he had experienced after the 1977 attack recurred. He nevertheless returned to school after the Christmas recess.

The third and final incident occurred at the end of February, some two months after the second incident. It took place in a generally unused hallway in which two students were fighting, egged on by a group of about ten other students. As petitioner came upon the group, one of the participants was ready to stop fighting but the other one continued his attack. Petitioner broke up the fight by pushing the second student against the wall. Then, without being aware of what he was doing, he started to choke him. He was called to his senses by another teacher and released the boy. He was never able thereafter to return to teaching or able to overcome what were now, at least in medical opinion, irreversible phobias about teaching and harming children in school.

Of significance is petitioner's predisposition to the psychiatric illness which finally disabled him. It was the undisputed testimony of the Board's examining psychiatrist that petitioner's "personality structure prior to developing symptomotology" was premorbid, that is, he had difficulty in "neutralizing anger." As the psychiatrist explained it,

Mr. Pushko had a personality and our personalities may predispose us to certain conditions.

It's when the condition -- it is prior to the time that the condition emerges that we ...


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