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

Decided: February 6, 1986.

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



On remand from the Supreme Court of New Jersey for reconsideration. See N.J. (1985), remanding 202 N.J. Super. 98 (App.Div. 1985).

Pressler, Brody and Cohen.

Per Curiam

Following our decision in this matter, reported at 202 N.J. Super. 98 (App.Div.1985), the Supreme Court filed its opinion in Kane v. Board of Trustees, Police & Firemen's Ret., 100 N.J. 651 (1985), and remanded this case to us for reconsideration in the light of Kane.

We detailed the facts in our earlier opinion. It suffices now to say that petitioner John Pushko, while employed as a physical education teacher, suffered a psychiatric breakdown which totally disabled him from continuing in his profession. The administrative law judge had found that the disability was the cumulative result of three traumatic episodes. The first occurred in October 1977 when petitioner was brutally assaulted by a student who hit him across the mouth and then struck him over the head with a cane. The second occurred in December 1980 when petitioner was punched in the chest by a student

who was assaulting two other students. When petitioner attempted to assist the two boys, the aggressor not only struck him but threatened to get a gun and kill him. The third occurred in February 1981 when petitioner, walking into a generally unused hallway, came upon a group of about ten students who were egging on two boys engaged in a fistfight. Petitioner broke up the fight by pushing one of the boys up against the wall and, without being aware of what he was doing, started to choke him. Another teacher, who came upon the scene, separated petitioner from the boy.

The Board of Trustees of the Teachers' Pension and Annuity Fund rejected the administrative law judge's findings in part. Agreeing that all three incidents had combined to produce the psychiatric disability, it nevertheless concluded that neither a separable component of the second episode nor the entire third episode had satisfied the statutory requirement of a traumatic event. Holding that the Board had erred in its application of the traumatic-event element of the statute, we reversed its consequent denial of the petition. Thereafter, Kane was decided, the matter remanded to us, and we afforded the parties an opportunity to file supplemental briefs.

The problems we were faced with in our initial consideration of this case were the result of the psychiatric rather than physical nature of the disability and the psychic rather than physical nature of the third traumatic event, which was deemed a contributing cause of the disability. We noted that in Cattani v. Bd. of Trustees, Police & Firemen's Retire. Sys., 69 N.J. 578, 586 (1976), the Supreme Court had defined "traumatic event" as a "mishap or accident involving the application of external force to the body or the violent exposure of the body to some external force." Concluding that the statute encompassed psychiatric disability caused by a psychic trauma and recognizing that Cattani addressed only a physical injury caused by a physical trauma, we held that a psychiatric disability was accidental within the intendment of the statute "if the object of the force or violence is understood to be the mind

rather than the body" and the nature of the force or violence is "an external force or series of events [which] impinges on the mind and emotions, as distinguished from the physical body." 202 N.J. Super. at 105. We therefore concluded that each of the three events here met the Cattani test, although only the first two involved application of physical force or violence to the body. The question before us now is whether they also meet the Kane redefinition of the test.

Kane prescribes three prerequisite conditions for characterizing an event as traumatic. First, the injury must not have been "induced by the stress or strain of the normal work effort." Second, the employee must have "met involuntarily with the object or matter that was the source of the harm." Third, "the source of the injury itself" must have been "a great rush of force or uncontrollable power." 100 N.J. at 663. As we understand the present position of the Board, it concedes that the first two events, the 1977 and the 1980 assaults, qualify as traumatic within the Kane prescription. Its argument is that the third event does not, and since all three causative events were therefore not traumatic, the disability cannot be classified as accidental. It is therefore only the nature of the third event which we here consider.

The ordinary metaphysical and quantum-mechanical difficulties inherent in the application of this three-pronged standard are obviously compounded when the injuries are, as here, psychic rather than physical and are caused by an accumulation of episodes rather than by a single episode. The analytical task is daunting. Having undertaken it, we have concluded that additional factual determinations must be made in order to apply the Kane redefinition to the third event.

In considering each of the prongs of Kane as applied to the third event, we are satisfied that the test of the first prong is met since we cannot regard the incident as falling into the disqualifying category of a stress or strain of the normal ...


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