The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2005
Before Judges Skillman, Axelrad and Payne On appeal from Board of Trustees, State Police Retirement System.
The issue presented by this appeal is whether a psychic stimulus occurring in the course of public employment may constitute a "traumatic event" that would establish eligibility for an accidental disability pension. We conclude that only an accident that involves application of an external physical force may be found to constitute a "traumatic event," and therefore a disability caused by a purely psychic stimulus does not qualify for an accidental disability pension.
Appellant Glynn Moore, an African-American, was a State Trooper for fifteen years. Appellant was placed on medical leave for stress in May 1999. Appellant remained in this status until September 2002, when the Superintendent of the State Police notified him, after a medical evaluation, that he was mentally and physically incapacitated for the performance of his assigned duties and should submit an application for a disability retirement. Appellant then applied for retirement on an accidental disability pension based on his "prolonged exposure to a racially hostile work environment as a New Jersey State Trooper by being pervasively exposed to racial profiling." Appellant claimed that this racially hostile work environment had caused him to suffer post-traumatic stress disorder and other mental disabling consequences.
The Board of Trustees of the State Police Retirement System denied appellant's application on the ground that the incidents of racial harassment alleged in his supporting certification did not constitute "traumatic events" within the intent of N.J.S.A. 53:5A-10. The Board also concluded that appellant had not shown that his failure to file an application for an accidental disability pension within five years of the alleged "original traumatic event," as required by N.J.S.A. 53:5A-10, was due to a "delayed manifestation" of his disability. However, the Board determined that appellant was permanently and totally disabled from the performance of his assigned duties and consequently awarded him an ordinary disability pension.
Appellant requested a hearing to contest the denial of his application for an accidental disability pension, and the matter was referred to the Office of Administrative Law. The Administrative Law Judge (ALJ) to whom the case was assigned bifurcated the issue of whether there had been a "delayed manifestation" of appellant's disability and heard evidence solely on the question whether the racial harassment experienced by appellant constituted a "traumatic event."*fn1
At the hearing, appellant testified to numerous incidents of racial harassment, beginning shortly after his graduation from the State Police Academy in 1987. In his first assignment, appellant's supervisor referred to him as "boy," "black boot" and "ditty bobber" and described his clothing as "pimp clothes." When appellant complained to the station commander about this treatment, he was told to "get with the program or get the hell out." Other troopers poured water on appellant's hat and put it in a freezer, put salt in the pockets of his shirt and pants, and placed racist pictures and other items in his locker and squad box, including a Ku Klux Klan membership keychain.
In November 1988, appellant and his supervisor responded to a call regarding a disabled motorist. When they arrived at the scene, they found an African-American woman whose car had gone down an embankment. The woman was hysterical and smelled of alcohol. Appellant helped the motorist out of her car and took her up the embankment, after which the officers handcuffed her and attempted to place her in the back seat of the police car. As she was being placed in the car, the woman kicked one of the officers. Appellant's supervisor then jumped into the car and began beating the woman with his fists and a flashlight. A municipal police officer who had responded to the scene also struck the woman. As the officers were beating the woman, they referred to her as "black bitches." The beating was sufficiently severe to require the woman's hospitalization. When appellant complained to his sergeant about the excessive force used upon the woman, the sergeant said: "I better get my act together . . .[,] ship up and get with the program[,] or I'm getting out of here, and he reminded me that I had less than five years on my tenure."
Appellant also testified that he was instructed and required to participate in racial profiling in which African-Americans, Hispanics and other minorities were stopped, questioned and searched without probable cause. The Caucasian officers referred to the African-Americans as "coons," "niggers" and "porch monkeys" and the Hispanics as "wetbacks" and "spics."
After appellant was transferred to another assignment in 1989, the pattern of racial harassment he had experienced in his first assignment continued. Racially derogatory materials were placed in his locker and squad box, and a tire on his personal car was slashed. Appellant's complaints to supervisors about this harassment were rebuffed.
Appellant was subjected to similar racial harassment in his subsequent assignments within the State Police. In late 1998, he was assigned to ride with another trooper who was notorious for engaging in racial profiling. This trooper would say, "Hey, we're going hunting tonight," or "We're going to wrestle up some cattle," which meant he planned to arrest and search African-Americans without probable cause. The trooper also would subject the African-Americans he stopped to various forms of intimidation and harassment and use racial epithets to degrade them. Appellant complained to his supervisors about this conduct, but was again rebuffed.
The Board did not present any evidence to contest appellant's allegations regarding the racial harassment he had ...