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Gregory Russo v. Board of Trustees

May 17, 2011

GREGORY RUSSO, PLAINTIFF-APPELLANT,
v.
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Long

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Gregory Russo v. Board of Trustees, Police and Firemen's Retirement System

(A-20-10)

Argued March 1, 2011

Decided May 17, 2011

LONG, J., writing for a unanimous Court.

The Court considers whether the Board of Trustees, Police and Firemen's Retirement System (Board), erred in denying accidental disability benefits to a policeman who sustained a disabling mental injury as a result of a fire rescue in which he was injured and the victim died.

In 2001, Gregory Russo joined the Montclair Police Department. Following training at a police academy, he was assigned to Montclair's Patrol Division, working traffic enforcement, responding to domestic disturbances, and performing crowd control. On November 29, 2001, Russo and his partner and other officers responded to a house fire. After being informed that people remained inside, they proceeded into the burning structure. They located an adult and two children on the first floor and led them to safety. The officers then turned back into the home to rescue a man trapped on an upper floor, who they could hear crying out for help. They could proceed only as far as the second floor landing due to the intense heat and smoke. Russo became disoriented and started to feel dizzy and nauseous. Firefighters arrived, found the officers on the landing, and escorted them out of the building. Russo and the others received first aid. The victim died in the fire. Russo witnessed the firefighters remove the victim from a window and lay him on the front lawn. The man's family then confronted Russo, blaming him and the other officers for the victim's death. Russo was treated for smoke inhalation at a hospital, where he remained overnight. Thereafter, Russo reported trouble sleeping, stomach disorders, and suicidal thoughts, and became depressed and short-tempered. Ultimately, he was diagnosed with and treated for Post-Traumatic Stress Disorder (PTSD).

Russo applied for accidental disability retirement benefits in 2004. The Board's expert evaluated Russo, diagnosed him with PTSD, and found him totally and permanent disabled as a result of the "traumatic incident." The Board denied Russo's application after finding that Russo's experience was not a "traumatic event" under N.J.S.A. 43:16A-7. The Board found that the fire disabled Russo, however, and granted him an ordinary disability pension.

Russo appealed, and a hearing was held before an Administrative Law Judge (ALJ). Russo testified about the fire, his experience, the confrontation by family members blaming him for the victim's death, and his disability. Russo's expert, who also treated him, testified that the fire and attendant events were sufficiently traumatic to qualify him for accidental disability. An expert in police training testified that police officers are not trained in firefighting tactics. While the ALJ's decision was pending, the Supreme Court decided Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), addressing the standards applicable to accidental disability pensions for mental disabilities. Applying Patterson and Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), the ALJ concluded that Russo was eligible for an accidental disability pension.

The Board adopted the ALJ's findings of fact, but rejected the decision. The Board concluded that even though Russo's disability resulted from a direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, as required by Patterson, that opinion also required that the event be objectively capable of causing a disabling mental injury to a reasonable person in similar circumstances. The Board found that the fire event did not meet the latter requirement after comparing Russo with the officers who were not disabled by the experience. Noting that the only difference between Russo and the other officers was Russo's confrontation with the family, the Board found that incident insufficient by itself to constitute a traumatic event.

In an unpublished decision, the Appellate Division upheld the Board's conclusion that Russo did not qualify for accidental disability benefits. The Supreme Court granted certification. 204 N.J. 39 (2010).

HELD: In this case in which a policeman was involved in a fire rescue that caused injury to him and a victim's death, the officer was improperly denied accidental disability benefits for his mental injury because of an incorrect application of the standards set forth in Patterson v. Board of Trustees, 194 N.J. 29 (2008).

1. Review of administrative agency action is limited, but questions of law are the province of the judicial branch. The Court applies de novo review to an agency's interpretation of a statute or case law. (Pp. 16-17)

2. Accidental disability differs from ordinary disability in several ways. The accidental disability benefit is greater than the ordinary disability benefit. However, an employee can qualify for ordinary disability benefits if he or she is disabled for any reason. The accidental disability benefit, pursuant to N.J.S.A. 43:16A-7(1), requires that the employee be totally disabled as a result of a traumatic event occurring during and as a result of the performance of his or her regular or assigned duties. (Pp. 17-19)

3. In Richardson, the Court explained that to be eligible for accidental disability benefits, the employee must show permanent and total disability that was the direct result of a traumatic event identifiable as to time and place, undesigned and unexpected, and caused by an external circumstance (not pre-existing disease that is aggravated or accelerated by the work); that the event occurred during and as a result of the employee's regular or assigned duties and was not the result of the employee's willful negligence; and that the employee is mentally or physically incapacitated from performing his usual or any other duties. (Pp. 19-22)

4. In Patterson, the Court set a high threshold for mental injuries arising out of a pure mental stressor with no physical impact. The Court required that the disability satisfy the Richardson criteria and also result 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 employee or another person. With that addition to the standard, the Court assured that the event was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury. In a mental-mental case, Patterson is the threshold that must be met for further inquiry to be warranted. Where no qualifying traumatic event occurs, the potential for a mental-mental accidental disability benefit is eliminated, but where such an event is experienced, Patterson is satisfied with no further analysis and Richardson comes into play. Because of the Richardson requirements, not every person who experiences a horrific event will automatically qualify for a mental-mental accidental disability benefit. (Pp. 23-26)

5. The Court concludes that the Board erred by failing to recognize that once an employee has experienced a qualifying incident-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 employee or another person-the objective reasonableness standard of Patterson has been met and only the Richardson factors remain to be satisfied. The Board's interpretation of the standard to be applied was clearly erroneous as a matter of law. (P. 26-28)

6. Russo, a new police officer with no psychiatric history, untrained and unequipped for firefighting, was ordered into a burning building. The intensity of the fire disoriented Russo, singed his uniform, and sent him to the hospital overnight. One person, who cried out for help, could not be reached because of the fire's ferocity and perished. Thereafter, the victim's family blamed Russo for their relative's death. Those circumstances, which rendered Russo permanently mentally disabled, satisfied both Patterson and Richardson and are what the Legislature had in mind when it enacted the accidental disability statutes. (P. 28-29)

The judgment of the Appellate Division is REVERSED, and the case is REMANDED to the Board for the processing of Russo's accidental disability award.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, RIVERA-SOTO, HOENS, and JUDGE STERN, temporarily assigned, join in JUSTICE LONG's opinion.

Argued March 1, 2011

JUSTICE LONG delivered the opinion of the Court.

On this appeal, we revisit our recent opinions in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), and Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), which addressed the standards applicable to accidental disability pensions. In Richardson, we explained that to be eligible to collect accidental disability benefits, a claimant must show each of the following:

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 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.

[Richardson, supra, 192 N.J. at 212-13.]

Thereafter, in Patterson, we affirmed that a mental disability arising out of a pure mental stressor with no physical impact can qualify a member for accidental disability benefits so long as the member satisfies the Richardson criteria and, in addition, [t]he disability must result 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.

By that addition, we achieve the important assurance that the traumatic event posited as the basis for an accidental disability pension is not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury. [Patterson, supra, 194 N.J. at 34.]

In this case, the member, a policeman, was involved in a terrifying fire rescue in which he was injured and the victim died. He applied for accidental disability benefits and, according to the Board of Trustees of the Police and Firemen's Retirement System (Board), satisfied Richardson and experienced a Patterson-type horrific event. Despite that, the Board denied accidental disability benefits on the ground that, although the member experienced a qualifying "horror-inducing event," the event was "inconsequential" and "not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." That determination, which was affirmed by the Appellate Division, was an improper application of Patterson, in which we declared that a qualifying traumatic event is, in itself, objectively capable of causing a reasonable person to suffer permanent mental injury. Ibid. Thus, the Board erred in denying the member accidental disability benefits.

I.

In 2001, Gregory Russo joined the Montclair Police Department. As a new recruit, he received training at the Essex County College Police Academy (Academy). After Russo graduated from the Academy, he was assigned to the Patrol Division of the Montclair Police Department. Russo worked the midnight shift and described his general duties as traffic stops and enforcement, responding to domestic disturbances, and crowd control.

In the early morning of November 29, 2001, while Russo was still in his first year on the force, he and Prentis Thompson, his partner and senior officer, responded to a reported house fire. Two other officers met them at the scene. The fire department had yet to arrive. The officers were informed by a crowd gathered in front of the burning home that people remained inside. Upon Thompson's order, the officers proceeded into the burning structure.

Once inside, the officers were able to locate three individuals, an adult and two children, on the first floor. They successfully escorted the individuals to safety. Russo walked them as far as the threshold before he and the others turned back into the home to rescue a man trapped on an upper floor. The officers were aware of the victim, not only because his daughter told them of his presence, but also because they could hear him coughing and crying out for help. The officers, however, could only proceed as far as the second floor landing; the ...


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