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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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