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In re O'Keefe

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 2, 2010

IN THE MATTER OF PEGGY O'KEEFE

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, Docket No. 3-10-34065.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 2, 2010

Before Judges Skillman and Fuentes.

This is an appeal from the denial by the Board of Trustees of the Police and Firemen's Retirement System (PFRS Board) of an application for an accidental disability pension based on a psychological disability caused by psychic stimuli.

Appellant Peggy O'Keefe was a corrections officer employed by the Juvenile Justice Commission. Appellant began her State employment on November 25, 1995, and at the time of the psychologically disabling incident, she occupied the title of Corrections Sergeant and was assigned to the New Jersey Training School in Jamesburg.

On May 9, 2005, appellant was ordered by her supervisor to report to the Jamesburg Police Department to search a female suspect in the jail because there were no female police officers on duty at the time. Two police officers escorted appellant to a dark holding cell, where she found the suspect sitting on the floor with her back against a bench and wrists handcuffed to the bench. The suspect had on an oxygen mask, which was attached to a portable tank.

Appellant told the Jamesburg Police Sergeant who brought her to the cell: "I can't search her like this because she's all crunched down[.]" Appellant also asked the sergeant, "What's up with the oxygen mask? Anybody monitoring her?" The sergeant responded: "Don't worry . . . we're watching her. We have a camera." The sergeant again asked appellant to search the female suspect because she was believed to be in possession of cocaine.

Appellant re-entered the cell and attempted to conduct a patdown search. However, appellant found it difficult to conduct a thorough search because the suspect was crouched on the floor in handcuffs, and appellant's initial search did not disclose any contraband.

Appellant left the cell and asked the sergeant to remove the suspect's handcuffs to enable appellant to conduct a strip search. However, the sergeant refused to remove the suspect's handcuffs because they had had "a problem with her," and he asked appellant to go back into the cell and "[d]o the best you can" without removing the handcuffs.

Consequently, appellant again entered the cell and attempted to search the suspect. However, she again experienced difficulty, and while she was in the cell, the suspect began to shake. Appellant reported this shaking to the sergeant, who asked her, "do you think she's faking it?" Appellant responded to the sergeant: "You got to do something."

The sergeant called his lieutenant, who also told appellant to do the best she could because they needed to find the drugs to make sure the suspect did not ingest them. The lieutenant also suggested the suspect was faking it to avoid a search, but appellant insisted she was not. The patrolman and sergeant entered the cell and tried to pick up the suspect, telling her not to "play dead." They returned to tell appellant that the suspect had stopped shaking and that first aid had been called.

Appellant returned to the cell a third time, feeling that the officers were disregarding her opinion and pulling rank. She then conducted a search underneath the suspect's clothes, but, although she thought she'd found something, it turned out to only be the suspect's undergarments. At that point, the paramedics entered and asked appellant to step aside. One paramedic removed the mask and appellant saw dried blood under the suspect's nose. The paramedics then asked the officers to uncuff the suspect, which someone did. While appellant stepped towards the doorway, she heard one of the paramedics say "[w]e're going to pronounce her now and I'm going to call it in." Appellant realized only then that the suspect was dead.

Appellant never returned to work after this incident and subsequently applied to the PFRS Board for an accidental disability pension. The Board granted appellant an ordinary disability pension, finding that she was totally and permanently disabled from the performance of her regular assigned duties, but denied her application for an accidental disability pension on the ground that the May 9, 2005 incident was not a "traumatic event." Appellant appealed this decision and the Board transferred the matter to the Office of Administrative Law as a contested case.

In her testimony at the administrative hearing on the application, appellant testified that although she appeared relaxed immediately after the incident, she began worrying about fault and blame about a week later. She felt like all involved were "at fault," and expressed concern that the incident would come back to haunt her in the future. Appellant also expressed concern that the Middlesex County Prosecutor would be calling her to say "[y]ou killed a woman."

Dr. Allan Burstein, who conducted a psychiatric evaluation of appellant on behalf of the PFRS Board, diagnosed her with post traumatic stress disorder (PTSD), and concluded that appellant's "symptoms prevent her from returning to work as well as a 'fear of retaliation' because of her imagined role in the death of the inmate." Responding to this statement, appellant testified that she remembered relating her "fear of retaliation" to Dr. Burstein

I got to go back to work and they're going to call me . . . Sergeant Stupid. It's a very stupid thing[] to do, to search somebody that's dead and not knowing it. And I was afraid that I make mistake and they would just fire me, you know. You know, when you can't make decision or bad decision, I have never done that before.

An Administrative Law Judge (ALJ) concluded that appellant qualified for an accidental disability pension based on the May 9, 2005 incident. In reaching this conclusion, the ALJ stated:

[Appellant] did more than just witness a suspect die, she was directly involved in searching the dead or dying suspect without even knowing the suspect was experiencing a medical emergency. Finding out after the fact that the suspect was dead or dying does not diminish the terrifying nature of what occurred and what [appellant] experienced. Indeed, it was only moments after she finished her search of the suspect that the [appellant] learned of the suspect's death.

I further CONCLUDE that the event is terrifying or horror-inducing because it meets the reasonable person test set forth in Patterson [ v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008)]. [Appellant's] direct personal experience in this matter was "not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." Id. The reasonable person in this instance would be a reasonable corrections officer with similar experience and training to [appellant]. It is my opinion that the horrific nature of searching a suspect three times while the suspect is dying would cause a reasonable corrections officer with similar experience and training to [appellant] to suffer a disabling mental injury.

The PFRS Board accepted the ALJ's findings of fact but concluded that those facts were incomplete and that the ALJ erred in ruling that appellant was entitled to an award of an accidental disability pension. In concluding that the ALJ's findings were incomplete, the Board stated:

[T]he [ALJ's] findings omit numerous credible admissions by [appellant] that illustrate her own idiosyncratic after-the-fact responses to an incident that, while unfortunate, is not objectively capable of causing a reasonable "corrections sergeant" under similar circumstances to suffer a disabling psychological injury. [Appellant] admitted that her response consisted of her unreasonable worrying, not about the horrific or terrifying nature of the event, but rather about her own job performance and the possible consequences of her being present in the Jamesburg police station when a suspect she had been searching died.

. . . [T]he [ALJ's] Initial Decision did not merely minimize, but omitted in its entirety, [appellant's] detailed remarks about the increasing stress she felt as time passed after the incident. She admitted that she was worried from the time she learned of the suspect's death that officers on the scene would be blamed: "I feel like what's wrong with us, but then, hey, you know, it's an inmate, you know. . . .

When asked on cross examination what she feared being blamed for, [appellant] replied: "Well, her death. I mean, how would I know? I go out. You know, somebody die[s], there's no time limit. I'll be having my grandchildren. Somebody tap me in the back. 'I want to talk to you about this case . . . .'"

[Appellant] reported to Dr. Allan Burstein, M.D., P.A. for a Psychiatric Evaluation on June 5, 2006. Dr. Burstein reported that [appellant] told him that "her symptoms prevent her from returning to work as well as a 'fear of retaliation' because of her imagined role in the death of the inmate." [Appellant] also told Dr. Burstein she "felt she may have contributed to the lady's death."

Based on the ALJ's factual findings and its own supplemental findings, the Board concluded that appellant failed to establish her entitlement to an accidental disability pension under the criteria set forth in Patterson:

. . . [T]he Board exercised its expertise in evaluating causation, and concluded that [appellant] is disabled as a Corrections Sergeant due to her idiosyncratic response to the incident of May 9, 2005. The Board understands that coming in contact with death can be disturbing. It is the Board's position, however, that a reasonable corrections sergeant under the circumstances in which [appellant] found herself on that night would not have suffered a permanently disabling psychological injury as a result. [Appellant] did not witness the death of the suspect. [Appellant] did not even know the suspect had died until she was told later. The suspect died under demeaning conditions, but did not die violently. There was no special relationship between [appellant] and the suspect comparable to that of police partners, teacher and student, or even lawyer and client, or comparable in any respect to the relationships posited in the Patterson examples. . . . .

Based on the expanded factual findings, it is clear that [appellant's] disability is caused by her idiosyncratic response to an unfortunate incident, and not by direct experience of an objectively terrifying or horror-inducing traumatic event.

We affirm the denial of appellant's application for an accidental disability pension substantially for the reasons set forth in the PFRS Board's final decision. We add the following supplemental comments.

Under Patterson, a permanent mental disability caused by a mental stressor qualifies for an award of an accidental disability pension only if the disability "result[ed] from [a] 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." 194 N.J. at 34. In determining whether this test for an award of an accidental disability pension has been satisfied, courts should "rely upon the expertise of the boards to separate legitimate from illegitimate claims and to resolve the difficult causation problems inherent in accidental mental disability claims." Id. at 51. Appellant's own testimony indicates that her mental disability did not directly result from her search of the suspect, but rather her concerns that she would be ridiculed, blamed, or even punished for conducting the search. Therefore, it was within the PFRS Board's authority to determine that appellant's disability was not a direct result of appellant's experience of the inmate's death but rather her idiosyncratic development of concerns about how that death would impact upon her. It also was within the Board's authority to determine that appellant's search of an inmate who died during or immediately after the search was not objectively capable of causing a reasonable corrections officer in similar circumstances to suffer a disabling mental injury.

Affirmed.

20100702

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