On appeal from a Final Decision of the Board of Trustees, Police and Firemen's Retirement System, PFRS # 3-10-29817.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
Petitioner Stephen R. Miller (Miller) appeals from a final determination of the Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS), finding that Miller did not qualify for an accidental disability retirement under N.J.S.A. 43:16A-7 because, although totally and permanently disabled from the performance of his usual duties, Miller's disability was not the result of a "traumatic event." We reverse and remand to the Board for reconsideration.
The following are the pertinent facts. Miller was employed as a sheriff's officer in Essex County. He filed an application for accidental disability retirement with the Division of Pensions and Benefits (Division), alleging in part that he was totally and permanently disabled as a result of a stress disorder arising from an incident that occurred on May 25, 2000. The Board denied the application. Miller filed an administrative appeal and the Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).*fn1
The matter was heard at the OAL on June 16, 2004. Miller testified that he had been employed in the sheriff's office since 1982. He became a detective in 1994. Miller had a "full time weapon" which he was required to carry at all times. In October 1999, Miller was accused by a girlfriend of committing an act of domestic violence. Miller asserted that D.S., the woman involved in the incident, had an "alcohol problem." According to Miller, at the time of the incident, D.S. was with him at his apartment. Miller discovered a quart bottle of vodka and poured it down the sink. Miller said that D.S. attacked him.
Three days later, D.S. went to the local police and filed a complaint alleging that Miller had assaulted her and falsely imprisoned her in his apartment. D.S. sought the issuance of a temporary restraining order, which was granted. Miller denied the allegations and filed his own complaint, alleging that D.S. had committed an act of domestic violence upon him. However, Miller was required to surrender his service weapon during off-duty hours, pursuant to a directive issued by the Attorney General that established a procedure for the seizure of weapons from municipal and county law enforcement officers who are alleged to be involved in incidents of domestic violence.
In November 1999, the Law Division judge dismissed the charges against Miller and vacated the temporary restraining order. The sheriff requested that the county prosecutor authorize the restoration of Miller's privilege to carry his service weapon during off-duty hours and that he be re-armed without any restrictions.
On May 25, 2000, Debra Cannella (Cannella), an assistant prosecutor in Essex County, and head of the prosecutor's Domestic Violence Unit, sent a letter to the sheriff advising that before the county prosecutor would consider re-arming Miller on a full-time basis, he must first attend and successfully complete a "group batterers program." Cannella wrote that, in the interim, Miller may be armed with his service weapon only while on active duty with the Sheriff's Office and he must return the weapon to his supervisor at the end of each shift. Cannella also wrote that Miller could not carry a firearm while off-duty and he was prohibited from possessing any personally-owned firearms.
Miller testified that when he read Cannella's letter, he was "in total shock" He said that he could not believe that this type of action was necessary. Miller asserted that the prosecutor's determination "devastated" him. He testified that he could not comprehend why he would have to attend a "group batterers program" before he could possess firearms, particularly in light of the disposition of the matter by the court. He said he was "floored" and "shocked by this news."
Miller was asked how he felt being off-duty without a weapon. Miller stated that he was "in great fear" of not being able to protect himself. He said that he had been carrying a weapon since he was eighteen years old and carried a firearm everywhere. Miller asserted that he had been responsible for placing people in jail and had received terroristic threats over the years. Miller said that he was "pretty nervous" that he would not be able to have a firearm in the off-duty hours.
Miller added that, after he received Cannella's May 25, 2000, letter, he continued to work. However, according to affidavits submitted by his friends, Miller became depressed and demoralized. In early 2001, he went out on sick leave because of stress. Miller saw a psychiatrist at that time. Miller refused to attend a "group batterers program" and his service weapon was never returned to him for use in the off-duty hours. Miller ceased working in May 2001. The PFRS did not dispute Miller's contention that he was permanently and totally disabled from the performance of his usual duties as a result of the psychiatric injury he sustained on May 25, 2000.
The ALJ issued an initial decision dated June 20, 2005. The ALJ determined that Miller's disability was not the result of a "traumatic event" under N.J.S.A. 43:16A-7, and the test established in Kane v. Bd. of Trustees, Police & Firemen's Ret. Sys., 100 N.J. 651 (1985). The ALJ determined that Miller had not shown that the injury he suffered was outside the scope of the normal stress and strain of his employment as a sheriff's officer. The ALJ further found that Miller had not established that his reading of the assistant prosecutor's letter involved a great rush of force or uncontrolled power. Miller filed exceptions to the ALJ's decision. However, by letter ...