June 19, 2008
NICHOLAS CHRISTOPHER, APPELLANT,
BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT.
On appeal from Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2008
Before Judges Skillman and LeWinn.
On March 29, 2004, appellant, who was an Essex County corrections officer, was subject to a violent assault by an inmate who overpowered him and nearly drew him into the inmate's cell. This assault did not cause appellant any physical injury. However, appellant claimed that the combined effects of this assault and of his work at the World Trade Center after 9/11 caused a post-traumatic stress disorder, which resulted in a total and permanent psychological disability entitling him to an accidental disability pension.
The Board of Trustees of the Police and Firemen's Retirement System denied appellant's claim to an accidental disability pension on the ground that even though the incident occurring at the World Trade Center constituted a "traumatic event," the physical assault upon appellant by an inmate did not qualify as a "traumatic event." However, the Board also determined that appellant was totally and permanently disabled from the performance of his regular and assigned duties and therefore was entitled to retire on an ordinary disability pension. Appellant appealed the denial of his application for an accidental disability pension, and the Board referred the matter to the Office of Administrative law.
Based on the evidence presented at an evidentiary hearing, an Administrative Law Judge (ALJ) concluded that the inmate's physical assault upon appellant did not constitute a "traumatic event" within the intent of N.J.S.A. 43:16A-7(1) and therefore he was not entitled to an accidental disability pension. After appellant filed exceptions, the Board issued a final decision on January 9, 2007, which adopted the ALJ's recommended decision and reaffirmed its initial decision to deny appellant's application for an accidental disability pension. Appellant did not appeal from this final agency decision.
On July 24, 2007, the Supreme Court decided Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), which changed the tests that govern the determination of whether a public employee is totally and permanently disabled as a direct result of a "traumatic event" within the intent of N.J.S.A. 43:16A-7(1) and other public employee pension statutes that provide this standard for the award of an accidental disability pension.
On September 18, 2007, appellant applied to the Board "to reconsider and reopen" his application for an accidental disability pension "in light of" Richardson.
By letter dated October 18, 2007, the Board denied appellant's application. The letter stated in pertinent part:
A review of [appellant's] pension records indicates that on January 8, 2007, the PFRS Board adopted the Initial Decision of the Administrative Law Judge denying [appellant's] application for accidental disability retirement benefits. There is no indication in the record that you filed a further appeal with the Appellate Division, Superior Court of New Jersey.
Therefore, the last action of the PFRS Board on January 8, 2007, stands as the final decision in this matter. Pursuant to Resolution 2007-3 of the PFRS Board adopted on October 15, 2007, the change in the law under the Richardson decision is only applied to those cases currently pending litigation or those cases in which the PFRS Board had denied the application for accidental disability within 45 days of the July 24, 2007, Supreme Court decision.
The October 15, 2007 Board resolution referenced in the October 18, 2007 letter to appellant states:
WHEREAS, on July 24, 2007, the Supreme Court of New Jersey issued its opinion in Richardson v. Board of Trustees of the Police and Firemen's Retirement System, 192 N.J. 190 (2007); and
WHEREAS, the decision changed the standard for the award of accidental disability retirement benefits by changing the statutory construction of the term "traumatic event" as it had previously been construed under Kane v. Board of Trustees of the Police & Firemen's Retirement System, 100 N.J. 651 (1985); and
WHEREAS, prior to the Supreme Court's ruling on July 24, 2007, the Board issued agency determinations in the cases that have come before it in accord with the law of the case at the time the matter was heard by the Board, which was governed by Kane, supra, and its progeny;
WHEREAS, applicants who have been denied an accidental disability retirement under the Kane test have inquired as to whether the Board will reconsider their case under Richardson; and
WHEREAS, upon advice provided by the Attorney General the Board is applying the Richardson decision to matters that have not reached final judgment in accord with Coons v. American Honda Motor Co., 96 N.J. 419 (1984);
WHEREAS, in accord with Buono v. Teachers' Pension & Annuity Fund, 188 N.J. Super. 488 (App. Div. 1983), the Board will not reconsider cases that have reached final decision under the standard set forth in Kane v. Police & Firemen's Retirement System, supra, in any case that has reached final judgment, these include but are not limited to cases in which the agency decision is final and the opportunity for appeal has expired,
WHEREAS, this policy is adopted to reduce administrative burdens and promote administrative efficiency and ensure consistency among the several pension Boards.
NOW THEREFORE, BE IT RESOLVED THAT,
The Division of Pensions and Benefits shall notify interested parties that the Board will not reconsider cases under Richardson which have reached final judgment, including but not limited to cases in which the agency decision is final and the opportunity for appeal has expired.*fn1
We reject appellant's argument that the Board's refusal to reopen and reconsider his application for an accidental disability pension was arbitrary. As stated in the Board's resolution, a change in the law is not ordinarily considered an adequate reason for reopening cases in which a final decision has been made and the time for appeal has expired. See Henderson v. Camden County Mun. Util. Auth., 176 N.J. 554, 561 (2003); Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 434 (1975). We also note that it is unclear whether appellant would have been entitled to an accidental disability pension even if his application had been considered under Richardson. In Gable v. Board of Trustees of the Public Employees' Retirement System, 115 N.J. 212, 224-25 (1989), the Court recognized that an assault by an inmate upon a corrections officer that resulted in a physically disabling injury could qualify as a "traumatic event" under prior law. However, appellant's disability is psychological rather than physical. At the time the Board considered appellant's application for an accidental disability pension, there was uncertainty concerning the circumstances under which a work-related incident resulting in psychological disability could qualify as a "traumatic event." Compare Moore v. Bd. of Trs. of the State Police Ret. Sys., 382 N.J. Super. 347 (App. Div. 2006) with In re Patterson, 382 N.J. Super. 366 (App. Div. 2006). This issue was not resolved by Richardson but rather by the Court's March 11, 2008 decision in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29. Finally, we note that both Richardson and Patterson were argued before the Board issued its final decision in appellant's case and that the pendency of those cases had been reported in the legal media. See 186 N.J.L.J. 316 (Oct. 16, 2006). Therefore, appellant had ample opportunity to file an appeal to protect his rights in the event the Court's decisions in those cases were favorable to his position.