On appeal from the Board of Trustees of the Police and Firemen's Retirement System, PFRS No. 3-10-36830.
The opinion of the court was delivered by: Alvarez, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
The opinion of the court was delivered by ALVAREZ, J.A.D.
Petitioner Shonda Hayes appeals from the February 9, 2010 final agency decision of respondent Board of Trustees (the Board) of the Police and Firemen's Retirement System (PFRS) denying her application for accidental disability retirement (ADR) benefits under N.J.S.A. 43:16A-7. ADR benefits are paid at a higher rate than ordinary disability retirement benefits. See Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 43 (2008). The Board concluded that N.J.S.A. 43:16A-7(1), which ordinarily requires filing within five years of the traumatic triggering event, rendered petitioner's application out-of-time. For the reasons that follow, after our review of the record and applicable law, we reverse and remand.
Petitioner, a Trenton Police Officer, applied for ADR benefits on July 20, 2007.*fn1 After the Board denied her application, she filed an appeal transmitted for hearing to the Office of Administrative Law (OAL). The Administrative Law Judge (ALJ) rendered an initial decision granting her benefits on May 6, 2009.
On June 9, 2009, the Board remanded the matter for the ALJ to answer certain designated questions, including a request that he pinpoint the date of manifestation of petitioner's stipulated disability, post-traumatic stress disorder (PTSD). After a second hearing, the ALJ again found that although the events which triggered petitioner's PTSD occurred on December 20, 2001, she was nonetheless entitled to receive ADR benefits because she did not become aware of her disability until May 2007.
The Board rejected the ALJ's analysis. It adopted the ALJ's findings of fact, but concluded petitioner's filing was untimely because of the five-year limit found in N.J.S.A. 43:16A-7(1), and awarded her only ordinary disability benefits. This appeal followed.
Preliminarily, we note that where a permanently disabling mental injury can be traced to "a mental stressor . . . identifiable as to time and place, undesigned and unexpected, external to the member . . . that occurred during and as a result of the member's duties, and was not the result of the member's willful negligence, [it] can qualify the member for [ADR benefits]." Patterson, supra, 194 N.J. at 48. The event must be horrific, one which falls outside the employee's job description, and for which he or she is not trained. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., ___ N.J. ___, ___ (2011) (slip op. at 22-24). PTSD is a qualifying psychiatric diagnosis of a permanently disabling mental injury that can constitute the basis for ADR benefits. See Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 239-48 (2003).
Though the facts are stipulated, they bear repeating. The sole witness at the first administrative law hearing was petitioner, who became a Trenton Police Officer in September 1994. She testified that her service was unremarkable until March 1998, when she was dispatched on a stolen motor vehicle call. As police stopped the car and approached, the car "ran over" one of the responding officers. Police, including petitioner's partner, responded with gunfire, severely injuring the unarmed teenage driver and killing his fifteen-year-old female passenger. Other than the car's occupants and petitioner, no one at the scene was African-American. The incident was highly publicized, quite controversial, and drew much unwelcome attention to petitioner. After this event, she missed a tour of duty, or approximately four days of work.
On December 20, 2001, petitioner responded to a domestic violence call. An officer was reported to have been injured at the scene. Upon arrival, she discovered the wounded officer was her younger brother, who had been shot in the face and neck. Petitioner cradled her brother in her arms, certain he was going to die, as he lay on the ground bleeding profusely. Shots were still being fired, so petitioner and her sergeant dragged her brother out of harm's way into the rear of a nearby police wagon, which was blocked in by other police vehicles. Because there were no handles in the interior of the compartment, her sergeant had to repeatedly knock on the door from the inside to ensure others were aware of their presence while they waited for the shooting to die down. Petitioner's brother survived, albeit with significant residual health issues from his injuries.
After that incident, petitioner took leave for about three weeks, during which she received some counseling.*fn2 For approximately one month after her return, she was assigned exclusively to administrative work. Petitioner resumed patrol duties when her captain suggested it, however, to avoid being viewed as a "shirker" by her co-workers. Although she thereafter intermittently experienced anxiety and insomnia, petitioner continued to ...