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Fabian Fazzari v. Board of Trustees

June 19, 2012

FABIAN FAZZARI, APPELLANT,
v.
BOARD OF TRUSTEES, THE POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT.



On appeal from the Board of Trustees, Police and Firemen's Retirement System.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2011

Before Judges Cuff, Waugh, and St. John.

Petitioner Fabian Fazzari appeals the final administrative action of respondent Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS) denying his application for accidental disability retirement benefits based upon a disability that he contends, and the Board concedes, resulted from the cumulative effect of three on-duty incidents that occurred in 1997, 2001, and 2004. We reverse.

I.

We discern the following facts and procedural history from the record on appeal.

A.

Fazzari was employed by the City of Orange as a police officer for approximately eight years, from 1996 to 2004. On October 30, 1997, Fazzari was on duty directing traffic when a suspect who had carjacked a minivan was being pursued by other police officers. The suspect drove the vehicle directly at Fazzari, causing him to "literally . . . jump out of the way." Fazzari shot the suspect in the elbow as he jumped away.

According to Fazzari, "with the benefit of hindsight," he later realized how the event had adversely affected him. He became more cautious, and also angry. He became "very difficult towards . . . supervisors," "was mean" to the public, and "treated people . . . as if they were beneath [him]." He also experienced marital problems. On one occasion, he "put [his] hands on" his wife, at which time she told him he needed help.

At the time, however, Fazzari did not believe he had a problem. Despite the change in his behavior, Fazzari was able to function in his official capacity without being disciplined or engaging in other problematic behavior. According to Dr. Arthur Wiener, Fazzari's treating psychologist, Fazzari was not aware that the event had caused him any disability. Wiener explained that "[i]t takes a long time to come to this realization." Because the event occurred early in Fazzari's career, Wiener described it as significant because it shaped the way he would respond to future events. Wiener opined that the event caused Fazzari to develop a "major symptom of Post-Traumatic Stress Disorder" (PTSD) known as "acoustic startle response." Nevertheless, according to Wiener, Fazzari was not fully disabled because he was still coping.

On the night of January 12, 2001, police officers were searching for a robbery suspect who had shot another officer. In response to the shooting, Officer Kenneth McGuire entered a neighborhood backyard, where the suspect was believed to be hiding. The suspect shot McGuire three times. McGuire, Sergeant Brian David, and Officer Mooney returned fire with a total of twenty-seven shots, killing the suspect. McGuire described the scene as "hysterical," "loud," and "absolutely insane." "People . . . were yelling," and "there was fear."

According to Fazzari, who arrived on the scene while the shots were being fired, the scene "sounded like a war zone."

Fazzari had his "weapon out" after hearing the shots being fired, but never fired any shots himself. Nevertheless, after he approached the area where the shots were being fired, he saw "the muzzle flashes from the guns, but didn't know who was standing where." When the shooting ceased, Fazzari heard an officer scream "I'm shot. I'm shot." After David ordered "Holster your weapons, the suspect is down," Fazzari holstered his weapon and was one of the first officers to approach McGuire.

Fazzari testified that he had a close relationship with McGuire, as both a childhood friend and a police partner. After viewing McGuire's injuries, Fazzari became emotional, in part because he "believed [McGuire] was going to die." Fazzari repeatedly yelled at David, "He's going to die." He started to move McGuire in an effort to help him, but David ordered him to stop because he was concerned that the movement would sever McGuire's femural artery. McGuire described Fazzari as being "absolutely in a panic, he was distressed, . . . I was a lot calmer [than Fazzari] at that point. He was yelling." "Looking back at that night," Fazzari realized that he was not composed and was not able to function as a police officer at the scene.

Fazzari subsequently returned to work, but "had a bad attitude towards the job" and "[a] bad attitude towards supervisors." He also "lost all trust in the public, . . . [and] thought nobody was . . . any good." Fazzari believed "that at any given time, anybody [was] going to try to kill" him or another officer.

On January 19, 2004, Fazzari was driving his patrol vehicle with Officer Rontesia Lewis. As they stopped at an intersection, shots were fired approximately twenty to twenty-five feet away from them. Both Lewis and Fazzari initially believed that the shots were being fired at them. They then observed a man in a vehicle firing shots at someone in another vehicle, who was shot and subsequently died.

According to Lewis, during the shooting, Fazzari "just sat there quiet, he didn't say anything." Lewis radioed for assistance and got out of the car to assist the victim.

Fazzari testified that he tried to turn the car around and then tried to assist the victim, but he began to relive the 2001 shooting of McGuire. Fazzari stated that he "lost it to the point that [he] started pacing the streets." When Lieutenant Vidiello arrived at the scene, he observed Fazzari yelling, screaming, and cursing at the police dispatcher who was attempting to assign him to "another call." When Vidiello approached Fazzari after his exchange with the dispatcher, Fazzari was crying. He told Vidiello: "You've got to get me out of here. I can't take it."

Vidiello removed Fazzari's gun and had him taken to the Psychiatric Crisis Center at East Orange General Hospital. Fazzari never returned to work.

B.

In January 2004, shortly before the third incident, Fazzari applied to the Board for an ordinary PFRS disability retirement based upon "stress disorder, undiagnosed" caused by "traumatic events" the dates of which were "to be established." To receive an ordinary disability retirement, there must be a finding that [the] 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 and that such incapacity is likely to be permanent and to such an extent that he should be retired. [N.J.S.A. 43:16A-6(1).]

Although Fazzari premised his disability on the work-related events, there is no requirement that the disability be work-related for an ordinary disability retirement. The Board granted Fazzari's application in March 2005, effective as of January 1, 2005.

Fazzari then filed an amended application seeking accidental disability benefits based on the 1996, 2001, and 2004 events. To receive accidental disability benefits, which are enhanced, there must be a finding that "the member is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties." N.J.S.A. 43:16A-7. In addition, the retirement application must be filed within five years "of the original traumatic event," unless the applicant can "demonstrate[] to the satisfaction of the [Board] that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member." Ibid.

In October 2005, the Board found Fazzari to be permanently and totally disabled as a result of the cumulative effects of the three events. Although it found that the 1997 event was "a traumatic event," the Board concluded that there had been no "delayed manifestation" of the injury stemming from the event that would allow Fazzari to seek benefits beyond the five-year period. In addition, the Board found that the 2001 and 2004 events were not "traumatic events." Consequently, it denied his request for accidental disability benefits.

Fazzari appealed the Board's decision. The appeal was transferred to the Office of Administrative Law (OAL) for a hearing. The first OAL hearing was held on February 7, 2007. A second hearing was held on November 24, 2008.

Between the two hearing dates, the Board decided to reconsider Fazzari's application for accidental disability benefits in light of two Supreme Court decisions that post-dated its 2005 decision denying accidental disability benefits. In Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), the Supreme Court determined that an individual seeking accidental disability benefits must establish:

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.

In Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29, 34 (2008), the Court held that an applicant claiming a mental disability stemming from a mental trauma (mental-mental claim) must establish a sixth factor:

The 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.

In July 2008, having reconsidered Fazzari's application in light of Patterson and Richardson, the Board again denied accidental disability benefits. The Board found that the 1997 event was a "terrifying or horror-inducing event" under the new standard, but that it was not the sole cause of Fazzari's disability. It also determined that Fazzari had failed to file his application within the required five-year period, and that there was no evidence that his failure was due to a "delayed manifestation." Finally, the Board found that the 2001 and 2004 events "did not result from direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Instead, the Board characterized them as "inconsequential and not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury," finding "no evidence to satisfy the reasonable person standard."

Wiener, who was qualified as an expert by the administrative law judge (ALJ), testified at both hearings that Fazzari suffered from PTSD.*fn1 He opined that, prior to the 2004 event, Fazzari was able to continue functioning as a police officer by using coping mechanisms. Consequently, according to Wiener, Fazzari did not realize he was disabled until 2004, when he could no longer cope and the disability fully manifested itself. Wiener testified ...


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