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Kackos v. Board of Trustees of the Public Employees' Retirement System

August 20, 2007

CLEMENT KACKOS, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from a Final Decision of the Board of Trustees, Public Employees' Retirement System, PERS # 02-10-193721.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 25, 2006

Before Judges Wefing, Parker and Yannotti.

Appellant Clement Kackos (Kackos) appeals from a final determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), finding that Kackos was not entitled to accidental disability retirement pursuant to N.J.S.A. 43:15A-43 because, although Kackos was totally and permanently disabled from the performance of his regular and assigned duties, his disability was not the result of a "traumatic event." We reverse and remand the matter to the Board for reconsideration.

Kackos filed an application for accidental disability retirement on March 13, 2003, in which he claimed that he was permanently and totally disabled as a result of emotional distress resulting from his observation of the September 11, 2001, terrorist attack on the World Trade Center. By letter dated October 16, 2003, Kackos was informed that the Board had denied his application. Kackos filed an administrative appeal and requested a hearing. The Board granted the request and referred the matter for a hearing at the Office of Administrative Law (OAL) before an Administrative Law Judge (ALJ).

The matter was heard at the OAL on October 25, 2005. At the hearing, the PERS did not dispute Kackos' assertion that he was permanently and totally disabled from the performance of his regular and assigned duties. The PERS also conceded that Kackos' application was timely and there was no issue as to causation.

The only issue in dispute was whether Kackos' disability was the result of a "traumatic event" occurring during and as a result of the performance of his regular or assigned duties.

Kackos testified that on September 11, 2001, he was employed as a toll collector for the New Jersey Turnpike Authority and was assigned to Interchange 14B in Jersey City. Kackos said that he felt the toll booth shake. He looked up and saw that one of the towers at the World Trade Center was on fire. Kackos said that he felt a blast, "like a force, or a concussion from the explosion."

The flow of traffic slowed and Kackos came out of his booth. Kackos observed the second plane fly into the other tower. Kackso testified that he felt a "bigger force because [he] wasn't protected so much by the booth." Kackos said that he got very nervous and started to shake. The experience "brought" him back to his time in Vietnam, where he had been in two explosions.

Kackos left work and went home. Kackos was scheduled to return to work the following day but he was unable to do so. Kackos testified that it took two weeks before he could return to work because, when he woke up in the morning, he had chest pains and was trembling. Kackos stated that he could not complete a full week's work. He had chest pains and felt dizzy. Kackos began to take time off.

Kackos went to a Veteran's Affairs (VA) facility and was referred to a counselor who advised him to enter a hospital. Kackos went to his personal physician, who also advised him to go to the hospital. However, Kackos did not want to go to a hospital at that time. He continued meeting with the counselor and also saw a psychiatrist at the VA hospital. The doctor prescribed certain medications. Kackos later was declared totally disabled and eligible for social security disability benefits.

The ALJ issued an initial decision dated August 1, 2005, in which she concluded that Kackos qualified for accidental disability retirement because he was totally and permanently disabled from the performance of his regular and assigned duties as a result of a "traumatic event" under the test established in Kane v. Bd. of Trustees, Police & Firemen's Ret. Sys., 100 N.J. 651, 663 (1985). Exceptions were filed on behalf of the PERS. The Board rendered a final determination dated September 22, 2005, in which it rejected the ALJ's initial decision, finding that Kackos' disability was not the result of a "traumatic event." This appeal followed.

Pursuant to N.J.S.A. 43:15A-43, a member of the PERS may be retired on an accidental disability pension if 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 . . . ." In Kane, supra, 100 N.J. at 663, the Court established the following test for determining whether the event that caused the disability was "traumatic." The applicant must establish that: 1) the injuries were not induced by the stress or strain of the normal work effort; 2) the worker met ...


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