March 11, 2011
ROBERT GLEISBERG, APPELLANT,
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT.
On appeal from a Final Administrative Decision of the Board of Trustees, Police and Firemen's Retirement System.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 25, 2011
Before Judges Yannotti, Espinosa and Skillman.
Appellant Robert Gleisberg (Gleisberg) appeals from a final determination of the Board of Trustees, Police and Firemen's Retirement System (Board), which found that he did not qualify for accidental disability retirement benefits under N.J.S.A. 43:16A-7(1). For the reasons that follow, we affirm.
Gleisberg was employed by Egg Harbor Township as a police officer. On December 2, 1997, he was dispatched to a local mall to respond to a domestic altercation. Melinda Flores (Melinda) reported that she had been at the mall with her cousin, Elizabeth Rowles (Elizabeth); Melinda's two-year-old daughter; and the mother of her estranged husband, Luis Flores (Luis). According to Melinda, Luis tried to take the child and struck Melinda and his mother. Luis left the mall before Gleisberg arrived.
Gleisberg undertook a preliminary investigation of Luis and learned that several days earlier, he had slashed the tires and broken the mirror on Melinda's car. Gleisberg also learned that a restraining order was already in place. Gleisberg wanted to obtain a warrant to arrest Luis. Gleisberg brought Melinda, Elizabeth and the child to the police station so that he could complete the paperwork required for the warrant.
Thereafter, Gleisberg took Melinda, Elizabeth and the child back to the mall so that Melinda could retrieve her car. Gleisberg rode around the mall area to ensure that Luis was not there. Gleisberg planned to escort Melinda, Elizabeth and the child to the Egg Harbor Township border, where they would be met by the Somers Point police, who would escort them home.
Melinda ran into heavy traffic when she left the mall. Gleisberg told Melinda to take the Garden State Parkway to the Somers Point exit, believing that Luis would not expect her to travel that route. Gleisberg gave Melinda money to pay the toll. Gleisberg told Melinda to wait at the Parkway exit until the Somers Point police arrived to escort her home.
Gleisberg contacted the Egg Harbor Township police dispatcher and asked the dispatcher to notify the Somers Point police of the change in plans; however, there was a delay in forwarding the message to Somers Point. Melinda did not wait for the police at the exit and drove from the toll booth to her home. Luis was waiting there. He fatally stabbed Melinda and Elizabeth before being shot and killed by Jerome Zucker (Zucker), a Somers Point police officer.
Meanwhile, Gleisberg continued to take steps to process the arrest warrant, intending to coordinate Luis's arrest with the police in Atlantic City, where Luis was living at the time.
Gleisberg was told that Melinda and Elizabeth had been killed in Somers Point. Gleisberg said that he initially thought this was a bad police joke.
Gleisberg went to the crime scene in Somers Point to determine if the report was accurate. Gleisberg observed a body that was covered with an emergency blanket. When someone lifted the blanket, Gleisberg glimpsed Melinda's body. Zucker said that the crime scene was one of the bloodiest he had ever witnessed.
Gleisberg felt sick and recalled vomiting immediately after observing the scene. He took five days off from work. He felt extreme guilt, believing Melinda and Elizabeth were killed because he failed to protect them. Gleisberg thereafter went back to work. Others in the police department told Gleisberg to "tough it out" when he indicated that he was emotionally or mentally distressed.
Gleisberg testified that, within six month of the incident, he began to experience symptoms of a mental illness. Gleisberg said that, as the years passed, he had nightmares and flashbacks. He dreamed that the victims were speaking to him. He felt panic when he was called to domestic disputes, and he had difficulty breathing. Gleisberg began drinking to help deal with the stress.
Gleisberg had taken photographs of the victims' graves after their funerals. He kept the photos with him. In December 2003, he took new photos of the victims' gravestones and carried the photos in the pocket of his uniform. When the photos wore out, he had new copies made. In late 2005, Gleisberg showed the photos to a supervisor and was told to seek professional help.
In January 2006, Gleisberg sought mental health treatment. He saw a nurse practitioner, who diagnosed post-traumatic stress disorder (PTSD). Gleisberg was treated for depression and anxiety, and certain medications were prescribed. In September 2006, Gleisberg went on leave from his job.
In November 2006, Gleisberg saw Dr. Theresa Bell (Bell), a psychiatrist. Bell issued a report dated March 20, 2007, in which she concluded that Gleisberg was suffering from major depressive disorder, PTSD, and generalized anxiety disorder. She said that Gleisberg should not return to work.
Bell issued a second report dated December 17, 2008, in which she stated that the events of December 2, 1997, were pivotal in the development of Gleisberg's PTSD. Bell noted that Gleisberg had been seen by a forensic psychiatrist, Dr. Carl J. Chiappetta (Chiapetta), who had diagnosed PTSD "with a chronic course and delayed onset."
Bell wrote that Chiapetta's diagnosis was correct, based on the criteria in the Diagnostic and Statistical Manual of Mental Disorders (Text Revision) 46 (4th ed. 2000) (DSM-IV). Bell said that Gleisberg could not perform police work as a result of his symptoms, which included flashbacks, nightmares, distress, intense fear and helplessness. She concluded that he was disabled.
In April 2007, Gleisberg filed an application for accidental disability retirement benefits from the New Jersey Division of Pension and Benefits. The Board granted Gleisberg ordinary disability retirement benefits but found that he did not qualify for accidental disability retirement benefits.
Gleisberg filed an administrative appeal, and the Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ). The ALJ thereafter issued an initial decision in which he concluded that Gleisberg qualified for accidental disability retirement benefits under the standard for permanent mental illnesses caused by mental stressors that had been established in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008).
In particular, the ALJ determined that Gleisberg suffered from a permanent mental disability, specifically PTSD, that arose from the events of December 2, 1997. The ALJ found that incident was a "terrifying or horror-inducing event" that involved actual or threatened death or serious injury to persons who were under Gleisberg's "protection." The ALJ further found that the incident was "objectively capable of causing a reasonable person under similar circumstances to suffer a disabling mental injury."
The ALJ additionally determined that Gleisberg's failure to file his application for accidental disability retirement benefits within five years of the alleged traumatic event, as required by N.J.S.A. 43:16A-7, was excusable. The ALJ stated that the untimely application was due to the "delayed manifestation of the disability." The ALJ said that Gleisberg did not realize he was disabled until the PTSD and depression became "clinically significant" to the degree that he sought professional help.
The Board rejected the ALJ's initial decision and issued a final decision dated January 12, 2010, denying Gleisberg's application. The Board found that Gleisberg did not meet the Patterson criteria for accidental disability retirement benefits and further found that he failed to establish that his failure to file a timely application was due to delayed manifestation of his disability or circumstances beyond his control. This appeal followed.
We turn first to Gleisberg's contention that the Board's decision should be disregarded because the Board did not issue a final decision in his administrative appeal within forty-five days of its receipt of the ALJ's decision, as required by N.J.S.A. 52:14B-10(c). The statute provides that Unless the head of the agency modifies or rejects the [ALJ's decision] within such period, the decision of the [ALJ] shall be deemed adopted as the final decision of the head of the agency. The recommended report and decision shall be a part of the record in the case. For good cause shown, upon certification by the [Director of the OAL] and the agency head, the time limits established herein may be subject to extension. [Ibid.]
Here, the record shows that the Board received the ALJ's initial decision on October 22, 2009. On October 30, 2009, the Director of the OAL granted the Board's request to extend the time for issuing its final decision to January 20, 2010. The Board considered and rejected the ALJ's decision at its December 14, 2009, meeting.
The Board made its findings of fact and conclusions of law at its meeting of January 11, 2010, and memorialized those findings and conclusions in its final determination dated January 12, 2010. We conclude that the Board rendered its final decision within the time required by N.J.S.A. 52:14B-10(c).
We next consider Gleisberg's contention that the Board arbitrarily rejected the ALJ's recommended decision and erroneously found that he did not qualify for accidental disability retirement benefits under N.J.S.A. 43:16A-7(1).
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable" or "lacks fair support in the record[.]" Ibid. In reviewing an agency's action, we consider:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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. [Id. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
In considering an appeal from an administrative decision, we must acknowledge, when appropriate, the agency's "'expertise and superior knowledge of a particular field.'" Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
In this case, the Board found that Gleisberg did not qualify for accidental disability retirement benefits pursuant to N.J.S.A. 43:16A-7(1). The statute provides that, to receive such benefits, a PFRS member must establish that he or she is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of his regular or assigned duties and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him. [N.J.S.A. 43:16A-7(1).]
In Richardson v. Police and Firemen's Retirement System, 192 N.J. 189 (2007), the Court addressed the "traumatic event" standard under N.J.S.A. 43:16A-7(1). The Court held that a PFRS member may be awarded accidental disability retirement benefits if he or she establishes:
1. that he is permanently and totally disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to the member (not the result of a pre-existing disease that is aggravated or accelerated by the work);
3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
4. that the disability was not the result of the member's willful negligence; and
5. that the member is mentally or physically incapacitated from performing his usual or any other duty. [Id. at 212-13.]
In Patterson, the Court again addressed the "traumatic event" standard under N.J.S.A. 43:16A-7(1). The Court held that a PFRS member could obtain accidental disability benefits for a permanent mental injury caused by a mental stressor without any physical impact, if the member meets the criteria spelled out in Richardson. Patterson, supra, 194 N.J. at 50. However, the member also must show that the disability "result[s] 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." Ibid. The traumatic event must be one that is "objectively capable of causing a permanent, disabling mental injury to a reasonable person under similar circumstances." Ibid.
We are satisfied that there is sufficient credible evidence in the record to support the Board's findings of fact and its conclusion that Gleisberg failed to meet the criteria under Patterson. In our view, the record supports the Board's determination that a reasonable police officer observing the scene that Gleisberg observed on December 2, 1997, would not have considered the incident to be "objectively terrifying or horror-inducing."
As the Board noted in its final decision, Gleisberg came on the scene after Luis stabbed his victims and had been shot and killed by Somers Point police officer Zucker. The Board pointed out that, when Gleisberg arrived on the scene, the threat had been "neutralized" and he did not view the violent acts "first hand." Thus, Gleisberg experienced the aftermath of the traumatic event, rather than the event itself.
In addition, police officers are trained to deal with the consequences of violent actions of the sort that occurred on December 2, 1997. The Board concluded that, "[t]here is no plausible basis in this case to assume that the nature of the incident, viewing a bloody scene, would cause an objectively reasonable police officer to have the type of idiosyncratic response that [Gleisberg] had." The Board found that Gleisberg's testimony indicated that his mental distress was largely due to his "personalized guilt" which resulted from his failure to protect the victims from harm. The record supports these findings.
Although Gleisberg argues otherwise, we are convinced that the Board's decision is in accord with Patterson. There, the Court stated by way of illustration that certain events would meet the standard enunciated in that decision: "a permanently mentally disabled policeman who sees his partner shot; a teacher who is held hostage by a student; and a governmental lawyer used as a shield by a defendant[.]" Id. at 50.
Each of the examples provided in Patterson involve situations where the disabled worker experiences a traumatic event directly and personally. As we have explained, Gleisberg did not experience the murders of Melinda and Elizabeth directly and personally. Gleisberg arrived on the scene after Luis stabbed Melinda and Elizabeth, and after Zucker shot and killed Luis. Gleisberg did not observe the "traumatic event," but rather its aftermath.
Moreover, in Patterson, the Court noted that the diagnostic criteria for PTSD requires evidence that a person be exposed to a traumatic event, and that "'(1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others[;] [and] (2) the person's response involved intense fear, helplessness or horror.'" Id. at 49 (quoting DSM-IV, supra, at 467).
The Patterson Court did not state, however, that any person who meets the DSM-IV criteria qualifies for accidental disability retirement benefits. Rather, the Court required a showing that the alleged traumatic event be "objectively capable of causing a permanent, disabling mental injury." Id. at 49-50. The Court limited "accidental disability recovery to stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances." Id. at 50.
Thus, while Gleisberg presented evidence that he had been diagnosed with PTSD, which arose from his observation of the aftermath of the tragic events of December 2, 1997, that evidence was not sufficient to establish his entitlement to accidental disability retirement benefits under N.J.S.A. 43:16A-7(1). Here, the Board found that a reasonable police officer would not have considered the observation of the crime scene, however bloody it may have been, to be sufficient to inflict a psychologically disabling injury. We are satisfied that the record supports that finding.
Gleisberg argues, however, that Patterson does not require that a member show direct physical involvement in the alleged traumatic event. In support of this contention, Gleisberg notes that the Patterson Court cited Brunell v. Wildwood Crest Police Department, 176 N.J. 225 (2003), as illustrating the sort of case where a person could suffer from PTSD even though the individual was not directly and physically involved in a traumatic event. We find no merit in this argument.
Brunell involved two workers' compensation cases that were consolidated for decision. Id. at 229. One of the cases involved a police officer named Samuel Stango (Stango). Id. at 231. Stango and a fellow officer responded to the scene of a domestic dispute. Ibid. The officers split up and took separate routes around the property. Ibid.
Stango was approaching the backyard when he heard what appeared to be the sound of gunfire. Ibid. Stango found his fellow officer "lying on the ground, the victim of a shooting in the throat." Ibid. The officer was bleeding from the mouth and ears. Ibid. Stango held the officer and "watched him die." Ibid. Stango was diagnosed with PTSD, which was found to be secondary to the incident in which his fellow officer was shot and killed. Id. at 232.
The Brunell Court held that PTSD could qualify as either an accidental injury or an occupational disease for workers' compensation purposes, depending on the particular facts at issue. Id. at 246. PTSD may be recognized as an accidental injury "when the condition [arises] from a single traumatic event that generated immediate symptoms and was not caused by the peculiar conditions of the employment." Ibid. PTSD may be recognized as an "occupational disease when it [arises] out of recurrent traumatic events experienced by policemen, firemen and rescue workers, the conditions of whose employment compelled regular exposure to such traumas with expectable consequences." Ibid.
The Court remanded Stango's claim for further proceedings. Id. at 262-64. The Court stated that the compensation court will have to decide, based on expert and lay testimony, whether [Stango] "witnessed" an extreme traumatic event within the contemplation of the DSM-IV definition of PTSD; if so, whether [he], in fact, developed PTSD from the events [he has] pinpointed; and if so, whether the events were expected or unexpected as an institutional matter (that is, whether PTSD is a natural hazard of police work, and whether police workers, as a class, are exposed to that hazard). [Id. at 263.]
The Court also stated that "Stango's exposure to the traumatic event was direct and took place while he was responding to the scene of a domestic dispute. He personally witnessed the bloody death of his partner." Id. at 263. In this case, however, there is no evidence that Gleisberg "personally witnessed" anyone's death. Therefore, Gleisberg's reliance upon Brunell is misplaced.
Gleisberg also argues that the Board's decision is inconsistent with its award of accidental disability retirement benefits to Zucker. Again, we disagree. The record shows that Sergeant Robert Somers (Somers) and Zucker responded to Melinda's home on December 2, 1997, after the police received a report of a stabbing at that location. Patrolman Ricky Heiler (Heiler) was already at the scene. Somers and Zucker heard Heiler yelling that he was being chased by a person with a knife.
Zucker approached and saw Luis chasing Heiler around the police car with a knife. Luis was stabbing at the tires of the car and trying to get at Heiler. Zucker told Luis to "[d]rop the knife." Luis started to approach Zucker, yelling, "Shoot me. Shoot me." Zucker drew his gun. Luis came within eleven feet of Zucker. Zucker again told Luis, "Drop the knife. Drop the knife." He fired a shot at Luis's sternum, which caused Luis to drop to one knee. However, Luis continued towards Zucker, who again told him to "[d]rop the knife." Zucker fired again. He testified that at "that time [Luis] went down." He was dead. Zucker then observed Melinda's and Elizabeth's bodies. He stated that "there was just more blood than" he had ever seen in his life.
Clearly, Zucker's involvement in the events of December 2, 1997, was substantially different from Gleisberg's involvement. As indicated, Luis had threatened Zucker with a knife and, in response, Zucker shot and killed him. The Board found that from Zucker's perspective, the events of December 2, 1997, were "terrifying and horror-inducing" and were "objectively capable of causing a permanent, disabling mental injury to a reasonable person under similar circumstances." Patterson, supra, 194 N.J. at 50. The Board reasonably reached a different conclusion with regard to Gleisberg.
In addition to finding that Gleisberg failed to meet the Patterson criteria for an award of accidental disability retirement, the Board concluded that Gleisberg's application for those benefits had not been filed within the time required by N.J.S.A. 43:16A-7. The statute provides that the application for accidental disability retirement benefits must be filed within five years of the original traumatic event, but permits the Board to consider an application filed thereafter if the member shows that his or her failure to file within the prescribed period was due to a "delayed manifestation of the disability or to other circumstances beyond" his or her control. Ibid.
In view of our determination that the record supports the Board's finding that Gleisberg did not satisfy the Patterson standard for accidental disability retirement benefits, we need not consider Gleisberg's contention that the Board erred by finding his failure to file his application within five years of the alleged traumatic event was due to a delay in seeking treatment, rather than the delayed manifestation of his mental disability or some other circumstance beyond his control.
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