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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...