January 27, 2010
GREGORY RUSSO, PETITIONER-APPELLANT,
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.
On appeal from a final determination of the Board of Trustees of the Police and Firemen's Retirement System, Docket No. 3-10-32345.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 30, 2009
Before Judges Lisa and Alvarez.
Gregory Russo appeals from the March 10, 2009 final determination of the Board of Trustees of the Police and Firemen's Retirement System (Board) denying his application for accidental disability benefits. After our review of the record and consideration of the arguments made, we affirm.
On November 29, 2001, during his first year as an officer for the Montclair Police Department, Russo was dispatched to the scene of a residential fire with three other officers. They entered the burning building, determined that there were four residents inside and escorted two children and an adult to safety from the first floor. They could hear a fourth person calling for help from the second floor and tried to reach him, but could not safely proceed upstairs because of the fire's rapid advance. As they were attempting to rescue the fourth occupant, local fire department personnel entered the building and ordered the police officers to leave. The man on the second floor died as a result of the fire.
After being evacuated from the residence, Russo witnessed the fire department removing the fourth occupant's body through a window and was verbally berated by the man's family for not doing enough to rescue him. The officers were taken to the local emergency room to be treated for smoke inhalation and were released the following morning. As a result of this traumatic event, Russo was diagnosed with post-traumatic stress disorder.
The initial decision of an Administrative Law Judge (ALJ) who considered the matter, issued on November 6, 2008, found that Russo met the standard for receipt of accidental disability retirement benefits. Such benefits are substantially greater than ordinary disability benefits, which are only forty percent of a member's final compensation. N.J.S.A. 43:16A-6(2)(b). In contrast, a member who receives accidental disability benefits receives two-thirds of his annual compensation. N.J.S.A. 43:16A-7(2)(b).
Pursuant to our statutory scheme, eligibility for job- related disability benefits is explicitly extended to "individuals with disabling mental injuries." Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 44 (2008). See also N.J.S.A. 43:16A-7(1); N.J.S.A. 43:16A-6(1). Such injuries "will be recognized as a basis for accidental disability [even] if . . . caused by an exclusively psychological trauma."
Patterson, supra, 194 N.J. at 44-45. This is referred to as the "mental-mental category." Id. at 45.
Patterson restated the test for claims for accidental disability retirement benefits in the mental-mental category, which was first articulated in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189, 212-13 (2007). In Patterson, the Court reiterated that the disability must stem from:
direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person.
Under that standard a permanently mentally disabled policeman who sees his partner shot; a teacher who is held hostage by a student; and a government lawyer used as a shield by a defendant all could vault the traumatic event threshold.
By the addition of the latter requirements to the Richardson template, we assure that the traumatic event is objectively capable of causing a permanent, disabling mental injury to a reasonable person under similar circumstances.
[Patterson, supra, 194 N.J. at 50.]
In other words, in addition to the analysis called for by Richardson, accidental disability in the mental-mental category requires "stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances." Ibid.
The ALJ found that Russo was eligible for accidental disability retirement because he considered Patterson's reasonable person test to be "fully satisfied under the known facts of this case." In contrast, the Board, although it adopted the ALJ's factual findings, reached the following legal conclusions:
The ALJ incorrectly concluded that Russo met the reasonable person standard. In reaching his conclusion, the ALJ reasoned that it would be  "a harrowing and frightful experience for a normal person, untrained as a professional firefighter, to enter a burning building to save the life of another human being." The ALJ also reasoned that this stress was added to by "the suffocating heat and smoke [which] nearly cost you your own life and forced you to retreat to safety." However, there is no evidence in the record to support these conclusions, as all four police officers left the residence without incident. It is important to note that Mr. Russo's expert witness opined that Mr. Russo's confrontation with the victim's family members, e.g. yelling and blaming him for their loss, was a significant factor. In fact, the expert referenced that incident as a "second trauma." It is clear that this second incident is the only difference between  Mr. Russo and the three other police officers who left the house unscathed. Furthermore, under Patterson, being yelled at in and of itself does not constitute a traumatic event. Patterson, supra, 194 N.J. at 94.
The ALJ also incorrectly found that it was reasonable for a police officer, with no relation whatsoever to the victim of a fire, to endure disabling "feelings of guilt and helplessness" because he and the other officers had to "abandon one of the trapped occupants, whose lifeless body was later stretched out on the front lawn in view of grieving relatives who angrily accuse you of not doing enough to rescue their loved one."
The ALJ also found significant Russo's "feeling the hypocrisy arising from being praised for your supposed heroism, when deep inside you genuinely believe that you have disgraced yourself, acted dishonorably and let down your co-workers." However, Mr. Russo's remorse or feelings of guilt simply do not establish that the incident is objectively capable of causing a reasonable police officer in similar circumstances to suffer a disabling mental injury. As one of several first responders to the scene, Mr. Russo sought to make every effort to save the occupants. Collectively, Mr. Russo and the three other responding officers determined that they could not safely enter the second story of the building, and all four officers left the residence without incident. Moreover, Mr. Russo did not know the victim, nor did he see the victim during the rescue attempt. While it may be reasonable to feel a degree of remorse in this situation, it is clearly not within the scope of a reasonable person for those feelings to render a member permanently disabled.
We begin our own analysis with the recognition of well- established principles concerning judicial review of administrative agency actions. Our role as an appellate court is restricted to four inquiries:
(1) Whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
On the whole, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006); see also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
We are constrained to agree with the Board in light of the substantial deference we afford an administrative decision.
None of the four officers who responded to the fire suffered any injuries beyond the smoke inhalation for which Russo was treated. Although the sight of the lifeless body of the fourth occupant of the burning building being removed was no doubt traumatic for Russo and entitles him to receive ordinary disability, police officers are trained to deal with injured and dead citizens under a multitude of horrific circumstances, including homicides, automobile accidents and natural disasters.
It no doubt compounded Russo's trauma to be verbally berated by the surviving family members of the deceased occupant. That circumstance in and of itself, however, does not constitute a traumatic event, as the Board pointed out in its written opinion. See Patterson, supra, 194 N.J. at 33-34 (stating that only events in which "the physical integrity of" a member or other person is seriously threatened qualify as a "traumatic event."). Hence, we concur with the Board's conclusion that the level of proofs necessary to "vault the traumatic event threshold" has simply not been reached in this case. Id. at 50.
Russo has not met his burden of establishing that the Board's decision was arbitrary, unreasonable and capricious.
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