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Fabian Fazzari v. Board of Trustees

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 that, in his opinion, the timing of the realization and manifestation of the disability were beyond Fazzari's control.

In evaluating Fazzari's condition, Wiener relied on the Diagnostic and Statistical Manual IV-TR (DSM), which is widely used by mental health practitioners. According to Wiener, the DSM defines PTSD as follows: "The person experienced, witnessed, or was confronted with an event or events that involves actual or threatened death or serious injury, or a threat to the physical integrity of self or others." In his report, Wiener noted that under the DSM criterion, "[t]he person's response to the event would then involve intense fear, helplessness, or horror for development of the disorder and diagnostic purposes." Wiener testified that both the 2001 and 2004 events met the DSM's definition of PTSD and were experienced directly by Fazzari. However, the 2001 event did not directly disable him because he was able to go to work afterwards.

In his testimony, Wiener expressed concern about the Board's initial decision, which required Fazzari to establish that the traumatic events were the direct result of "a direct personal experience" in order to constitute PTSD for the purposes of accidental disability benefits. The Board objected, arguing that Wiener's opinion was hearsay, "a legal opinion," and "outside the scope of his expertise." The ALJ overruled the Board's objections.

Wiener's initial report noted that Fazzari had experienced two additional traumatic events: "[d]iscovering an infant who had been sliced up into little pieces by the mother" and the "brutal murder of . . . a close fellow officer." However, Wiener distinguished the finding of the baby and the murder of the officer from the other three events, characterizing them as "vicarious" exposures, as opposed to the type of "direct" exposure experienced in 1997, 2001, and 2004. Wiener also wrote in a November 2008 report: "If it were not for the shootings, it is highly unlikely that Fabian Fazzari would now be totally and permanently disabled. . . . [The] other traumatic exposures . . . are contributory but not likely determinative."

At the first hearing, Wiener testified that Fazzari's disability did not manifest itself immediately after the 2001 incident because he was able to go to work until 2004, when the final event occurred. Wiener opined that Fazzari had experienced "psychic numbing," making him unable to realize he was suffering from the symptoms of PTSD. Wiener testified that the 2004 event involved an "acoustic startled response" and that Fazzari's failing to react during the shooting was a "psychological defense mechanism," also known as "Peri-Traumatic Dissociation." Wiener described the phenomena as a "sense of unreality, not being there, floating above."

On May 26, 2010, the ALJ issued her initial decision, reversing the Board's denial of Fazzari's application for accidental disability benefits. In discussing N.J.S.A. 43:16A-7(1), Richardson, and Patterson, the ALJ conclude[d] that the events that occurred on January 12, 2001, and January 19, 2004, each constituted a 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 petitioner or another person.

The ALJ based her decision on "the whole of the evidence," including Wiener's testimony, the testimony of McGuire, Lewis, and Fazzari, and the report of the Board's physician, Dr. Martin

N. Weiner, who did not testify at the hearing.

With regard to the 2001 event, the ALJ concluded:

Fazzari witnessed his partner and childhood friend lying on the ground, wounded and bleeding as the result of gunshots. I am persuaded by the credible evidence that petitioner was in the [midst] of gunshots, smoke, noise and pandemonium. . . . Indeed, Fazzari was on duty and in close proximity to the event.

With regard to the 2004 event, the ALJ determined that: "[Fazzari] found himself in the midst of a shootout . . . . [He and Lewis] initially believed that they were the target of the shots, and they subsequently watched a young victim lay bleeding from gunshot wounds and die shortly thereafter."

The ALJ noted that Fazzari's behavior changed subtly and gradually after each of the three events. She ultimately concluded, based in part on Wiener's testimony, that "Fazzari was experiencing PTSD," but had "suppressed the symptoms," and that his disability did not manifest itself until he experienced "'the aftermath of the January 19, 2004 event.'" The ALJ found that Wiener's conclusions were consistent with the "medical report issued by [the] Board's physician, Dr. Martin Weiner."

On August 10, 2010, the Board rejected the ALJ's decision, and issued its own findings of fact and conclusions of law. After observing that Patterson held that a traumatic event must be evaluated under a reasonable person standard, the Board concluded that police officers with Fazzari's training and experience would not have found the 2001 and 2004 events to be traumatic. In doing so, the board relied on our decision in Russo v. Board of Trustees, Police & Firemen's Retirement System, No. A-3706-08 (App. Div. Jan. 27, 2010), which was subsequently reversed, 206 N.J. 14 (2011).

The Board noted that it had previously determined that Fazzari was "totally and permanently disabled from the cumulative effects of the three incidents." It found that all three events "were identifiable as to time and place and were undesigned and unexpected; and the disability was caused by a circumstance external to the member and not the result of pre-existing disease that was aggravated or accelerated by the work."

However, the Board determined that the ALJ should not have relied upon Wiener's testimony when she concluded that the 2001 and 2004 events constituted "traumatic events" for the purpose of accidental disability benefits because Wiener's "interpretation of the Board's [prior] decision was outside the scope of his medical expertise." The Board also found that Wiener's diagnosis of PTSD was improper because he relied on the DSM criteria, rather than the criteria of Patterson.*fn2

The Board determined that the OAL record supported its previous findings 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 similarly serious threat to the physical integrity of the member or another person." Additionally, the Board found that the latter two events were "inconsequential and . . . not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." Consequently, there was no "evidence to satisfy the reasonable person standard."

Specifically, with regard to the 2001 event, the Board found that Fazzari did not directly experience this event, because he was "exiting his vehicle, which was across the street and behind two houses, when the shots were fired," he did not view McGuire until after the firefight was over, and he had not discharged his own firearm. With regard to the 2004 event, the Board found that Fazzari did not directly experience the event because the shots were not fired at him and because Lewis was unaffected by it.

This appeal followed.

II.

On appeal, Fazzari argues that the Board's rejection of the ALJ's decision was arbitrary and capricious, not supported by the facts in the record, and based on an incorrect application of the governing law.

A.

Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003). This deference is particularly appropriate when the agency has adopted the findings of the ALJ, which is not the case here, because the ALJ and not the agency has the opportunity to hear "live testimony" and "judge the witnesses' credibility." See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).

An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see also N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after it determines "from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.").

In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes, supra, 109 N.J. at 588. If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).

Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower, supra, 64 N.J. at 93, if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes, supra, 109 N.J. at 587).

Finally, we recognize that "the public pension systems are bound up in the public interest and provide public employees significant rights which are deserving of conscientious protection." Zigmont v. Bd. of Trs., Teachers' Pension & Annuity Fund, 91 N.J. 580, 583 (1983) (citations omitted). "[P]ension statutes are 'remedial in character' and 'should be liberally construed and administered in favor of the persons intended to be benefited thereby.'" Klumb v. Bd. of Educ., 199 N.J. 14, 34 (2009) (quoting Geller v. N.J. Dep't of Treasury, Div. of Pensions & Annuity Fund, 53 N.J. 591, 597-98 (1969)). Pension statutes must also be liberally construed in favor of public employees because they represent deferred compensation for a government employee's service. Widdis v. Pub. Emp. Ret. Sys., 238 N.J. Super. 70, 78 (App. Div. 1990) (citations omitted). And, of course, a pension board must deal fairly with its members. See Fiola v. N.J. Dep't of Treasury, Div. of Pensions, Police & Firemen's Ret. Sys., 193 N.J. Super. 340, 351 (App. Div. 1984).

B.

As outlined above, the Richardson-Patterson criteria require the applicant to prove each of the following in a mental-mental disability case: (1) permanent and total disability, (2) that is the 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 occurred during and as a result of the member's regular or assigned duties, (4) that was not the result of the member's willful negligence, (5) resulting in incapacity to perform the member's usual or any other duty, Richardson, supra, 192 N.J. at 212-13, and (6) that resulted 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. Patterson, supra, 194 N.J. at 34.

In its final decision, the Board found that Fazzari was "totally and permanently disabled from the cumulative effects of the three incidents" and that all three events "were identifiable as to time and place and were undesigned and unexpected; and the disability was caused by a circumstance external to the member and not the result of pre-existing disease that was aggravated or accelerated by the work." In essence, the Board was satisfied that Fazzari had satisfied criteria (1) through (5) of the Richardson-Patterson test.

i.

With respect to the 2001 and 2004 incidents, the Board determined that Fazzari had not satisfied criterion (6) because they did not involve "direct personal experience of a terrifying or horror inducing event, or a similarly serious threat to the physical integrity of the member or another person," but that they were "inconsequential" and "not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." We disagree.

Following the Board's final decision, the Supreme Court reversed our opinion in Russo, upon which the Board had relied in rejecting the ALJ's opinion recommending that Fazzari receive accidental disability benefits. Because Russo further clarified the Court's holdings in Richardson and Patterson in the context of reversing a decision by the Board to deny such benefits in a mental-mental disability case, we explore it's holding at length.

The basic facts in Russo were as follows:

In the early morning of November 29, 2001, while Russo was still in his first year on the force, he and . . . his partner [who was a] 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 [his partner]'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 intense heat and smoke prohibited them from advancing further. At that point, Russo became disoriented and started to feel dizzy and nauseous.

The fire department arrived during the attempted rescue. The firefighters entered the home, found the officers on the landing, and escorted them out of the building. Once outside, Russo and the others received first aid. Russo later received treatment for smoke inhalation at Mountainside Hospital, where he remained overnight.

Unfortunately, the victim died in the fire. While Russo was outside the house, he 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 did not immediately return to work, taking two to three weeks off. When he returned, he experienced difficulty coping with the aftermath of the fire, despite receiving numerous awards for his bravery. Russo reported difficulty sleeping, stomach disorders, and suicidal thoughts. He had problems performing at work and used his sick time in order to avoid police contact. Russo also experienced a change in his personality -- he became introverted, depressed, and short-tempered, particularly with the public. His supervisors reprimanded him for his behavior.

Following the fire, Russo sought medical treatment. He was diagnosed with Post-Traumatic Stress Disorder (PTSD) by his family doctor who prescribed Zoloft. [Russo, supra, 206 N.J. at 19-20.]

Russo eventually sought accidental disability benefits. Id. at 21. Although it found that he was totally disabled, the Board denied his application because it found that the incident was not a "traumatic event" under N.J.S.A. 43:16A-7. Ibid. Russo appealed. Ibid. Before the ALJ concluded the hearing, the Board reconsidered Russo's application in light of the Supreme Court's decision in Patterson. Id. at 24. It again denied his application for accidental disability benefits. Ibid.

As it did in this case, the Board recognized that the house fire was "'identifiable as to time and place and is undesigned and unexpected and caused by a circumstance external to the member and not the result of pre-existing disease that is aggravated or accelerated by the work,'" ibid., and that Russo was totally and permanently disabled from the performance of [his] regular and assigned duties and that the disability did 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 [Russo] or another person. [Ibid. (alterations in original).]

Nevertheless, the Board held that the fire event was "inconsequential and [was] not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." Ibid.

Following a hearing, the ALJ concluded that Russo was eligible for accidental disability benefits. Id. at 25. The Board rejected the ALJ's initial decision, and we affirmed in an unreported opinion. Id. at 25-26. The Supreme Court granted certification, 204 N.J. 39 (2010), and reversed. Id. at 26.

After outlining the change of approach it implemented in Richardson, the Court in Russo explained its approach to mental-mental claims as enunciated in Patterson:

[I]n Patterson we affirmed that "permanent mental injury caused by a mental stressor without any physical impact can satisfy the [accidental disability] standard." Patterson, supra, 194 N.J. at 48. In ruling, we recognized that the so-called mental-mental category presents a unique set of challenges:

"In most physical disability claims, medical analysis quickly goes beyond the subjective statement by the patient to clinical and laboratory tests by the physician . . . . In psychiatric disability claims, by contrast, medical analysis to a greater degree is analysis of the subjective statement of the patient." Saunderlin v. E.I. Du Pont Co., 102 N.J. 402, 412 (1986). Thus, in the context of psychological injuries, the proofs related to the traumatic nature of an event and the causal relationship between event and injury may be more problematic than in the case of a physical event. As a result the boards have expressed legitimate concerns about becoming bogged down in litigation over idiosyncratic responses by members to inconsequential mental stressors. [Id. at 48-49.]

In response, we established a high threshold for the award of accidental disability benefits based on a mental injury arising out of a pure mental stressor with no physical impact. Id. at 50. Indeed, we required that the member's 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." Ibid. We adopted that standard to assure the bona fides of claimed mental injuries and to ameliorate the problem of subjectivity inherent in mental claims. Ibid. As such, we denominated specific horrific events that would pass muster because they are of consequence and objectively capable of causing a reasonable person to suffer a disabling mental injury. Ibid. By way of example, we explained:

Under that standard a permanently mentally disabled policeman who sees his partner shot; a teacher who is held hostage by a student; and a government lawyer used as a shield by a defendant all could vault the traumatic event threshold.

By the addition of the latter requirements to the Richardson template, we assure that the traumatic event is objectively capable of causing a permanent, disabling mental injury to a reasonable person under similar circumstances. [Ibid.]

In Patterson, we applied the new test in three separate cases. We held that Robert Patterson's allegation of disparagement by a superior officer could not vault the traumatic event threshold, id. at 51, but that Glynn Moore's contention that he was subjected to death threats by other officers and Joseph Guadagno's claim that a gang member, who knew where he lived, had made a "credible threat" to rape and murder his wife and daughter, were traumatic events that could trigger accidental disability benefits if all other relevant standards were satisfied, id. at 51-53. We thus remanded Moore and Guadagno for further proceedings. Id. at 53.

Those dispositions reflect the way Patterson and Richardson were intended to operate. In a mental-mental case, Patterson is the threshold that must be met for further inquiry to be warranted. Satisfying Patterson eliminates the problem of "idiosyncratic responses by members to inconsequential mental stressors," id. at 49, insofar as the events described in Patterson are of sufficient gravity to objectively cause a permanent, disabling mental injury to a reasonable person, id. at 49-50. See also DSM-IV-TR, supra, at 467 (recognizing causal relationship between certain delineated traumatic events and resultant mental disorders, in particular, PTSD). Where no qualifying traumatic event occurs, the potential for a mental-mental accidental disability benefit is eliminated. To the contrary, where a qualifying horrific event is experienced, Patterson is satisfied with no further analysis. It is then that Richardson comes into play.

It is under Richardson that the member who has experienced a qualifying traumatic event must prove that the event, in fact, caused him to be permanently and totally disabled; that it was identifiable as to time and place; undesigned, unexpected, and external to the member; that it was work related; not self-induced, and that the member is unable to perform his usual or any other duty. Richardson, supra, 192 N.J. at 212-13. That is important because it underscores that not every person who experiences a Patterson-type horrific event will automatically qualify for a mental-mental accidental disability benefit. To the contrary, a member who experiences a Patterson-type horrific event and simply becomes upset will not satisfy the permanent and total disability standard. Likewise, one who has suffered long-standing psychiatric issues may fall short of the "direct result" standard. Similarly, an employee who experiences a horrific event which falls within his job description and for which he has been trained will be unlikely to pass the "undesigned and unexpected" test. Thus, for example, an emergency medical technician who comes upon a terrible accident involving life-threatening injuries or death, will have experienced a Patterson-type horrific event, but will not satisfy Richardson's "undesigned and unexpected" standard because that is exactly what his training has prepared him for. [Id. at 30-33.]

Applying that approach to the facts before it in Russo, the Court concluded that the Board went astray in this case in failing to recognize that once a member 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 member or another person" - the objective reasonableness standard of Patterson has been met and only the Richardson factors remain to be satisfied. See Patterson, supra, 194 N.J. at 50. That is to say that, in misapplying Patterson's objective reasonableness standard, the Board's interpretation of that standard was inaccurate, was contrary to the legislative objectives that standard embodies, and was clearly erroneous as a matter of law.

The Board should have recognized that Russo experienced a qualifying event insofar as he was ordered into a burning building so full of intense heat and smoke that his uniform was singed, that, as a police officer, he had no training or equipment for such an event, and that, in fact, he was hospitalized for smoke inhalation. The Board characterized that situation as "not life threatening" and thus not a Patterson trigger. That conclusion stands in contrast to the facts of record. Moreover, Russo clearly satisfied the other Patterson standard with respect to which the Board is curiously silent; he experienced a terrifying event that presented "a serious threat to the physical integrity of another person" - the victim, who suffered while crying out for help that Russo was unable to provide and who ultimately died as a result of the fire. That experience also objectively satisfied Patterson, and there was no warrant for further inquiry on that subject. Taken in connection with the Board's Richardson findings, it is clear that Russo sustained his burden. [Id. at 33-34.]

We conclude that the Board erred as a matter of fact and law in its determination that the 2001 and 2004 events did not involve "direct personal experience of a terrifying or horror inducing event, or a similarly serious threat to the physical integrity of the member or another person," and that they were "inconsequential" and "not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury."

The Board characterized the 2001 event as follows:

[The ALJ] found that during the January 12, 2001 incident, "Fazzari witnessed his partner and childhood friend lying on the ground, wounded and bleeding as the result of gunshots" and states that she was "persuaded by credible evidence that Mr. Fazzari was in the [midst] of gunshots, smoke, noise and pandemonium" and that Mr. Fazzari "was on duty in close proximity to the event." In actuality, a review of the record and hearing testimony indicates that Mr. Fazzari was exiting his vehicle, which was across the street and behind two houses, when the shots were fired. After Mr. Fazzari heard the gun shots, he took cover and only after it was indicated that it was "safe" for him to approach the rear yard did he see Officer McGuire. Unlike the other officers on the scene that night, Officers McGuire, Mooney and David, Mr.

Fazzari did not discharge his firearm or even see the suspect.

Our "careful and principled" review of the record discloses significant facts that the Board simply ignored in reaching its decision, resulting in a decision that is not supported by "the evidence and the inferences to be drawn therefrom." While originally miles from the scene when he heard over the police radio that an officer, not McGuire, had been shot, Fazzari and other officers rushed to the scene of the shooting to provide assistance. After Fazzari arrived in the general area, he heard shots being fired while he was getting out of his vehicle. He drew his service weapon and ran toward the area from which he had heard the shooting. He was eventually within approximately twenty-five feet of the location, at which time shots were still being fired. At that point, he was able to see "the muzzle flashes from the guns." He described the scene as a "war zone." Fazzari heard another police officer shouting that he had been shot. Once the senior officer ordered that all weapons be holstered, Fazzari holstered his weapon and approached the wounded officer, discovering that it was his childhood-friend McGuire.

Taken as a whole, these uncontradicted facts support the ALJ's conclusion that Fazzari "was in the [midst] of gunshots, smoke, noise and pandemonium" and that Fazzari "was on duty in close proximity to the event." They do not support the Board's contrary determination, based on its recitation of some but not all of the relevant and undisputed facts. The record is clear that Fazzari was present at the firefight, with his weapon drawn, and within sight of the muzzle flashes, and that shortly thereafter he saw his close friend with what he thought might be a fatal wound.*fn3

We note that the Board recently adopted an ALJ's initial decision in a case with some factual similarity to the one before us. Mercado v. Bd. of Trs., Police & Fireman's Ret. Sys., TYP 3369-10, initial decision, (February 12, 2007), adopted, Bd. (April 10, 2012), http://lawlibrary.rutgers.edu/ collections/oal/html/initial/typ03369-10_1.html. Mercado was a Sheriff's officer assigned to transport individuals who were to perform community service. While on duty, he stopped his van at a traffic light near a gasoline station. He heard and felt an explosion, and observed an object flying toward his van. He went to the scene of the explosion to offer assistance, as he had been trained to do. He came within several feet of a man who was screaming, covered in blood, and whose face had pieces of flesh hanging off of it. He was unable to return to work after the event, and was diagnosed with PTSD.

The Board denied Mercado's application for accidental disability benefits, but granted a regular disability retirement. The Board determined that Mercado's disability did not result from "direct personal experience of a terrifying or horror inducing event" and that the event was not "objectively capable of causing a reasonable person in similar circumstances to suffer disabling injury." Mercado appealed, and the matter was transferred to OAL. The ALJ's initial decision provided for reversal of the Board's decision, with significant reliance on the Supreme Court's decision in Russo. The ALJ noted that Mercado heard and felt the explosion and came in close proximity to the victim. The Board adopted the ALJ's decision.

We do not find the Board's effort to distinguish Mercado at all persuasive. It argues that the event experienced by Mercado was not within his training or expected duties, whereas Fazzari was an inner-city police officer who could reasonably anticipate exposure to shooting and, for that reason, should be denied accidental disability benefits. That argument is inconsistent with Richardson, in which the Supreme Court held:

The Board contends that because subduing an inmate is part of the anticipated work of a corrections officer and was not unexpected or unintended, Richardson cannot satisfy the traumatic event standard. That is a misreading of the statute, which requires that the traumatic event occur "during and as a result of the performance of [the member's] regular or assigned duties." To be sure, when the "normal stress and strain" of the job combines with a pre-existing disease to cause injury or degeneration over time, a traumatic event has not occurred. That is quite different from saying that a traumatic event cannot occur during ordinary work effort. Indeed it can. A policeman can be shot while pursuing a suspect; a librarian can be hit by a falling bookshelf while re-shelving books; a social worker can catch her hand in the car door while transporting a child to court. Each of those examples is identifiable as to time and place; undesigned and unexpected; and not the result of pre-existing disease, aggravated or accelerated by the work. Thus, each meets the traumatic event standard. So long as those members also satisfy the remaining aspects of the statute, including total and permanent disability, they will qualify for accidental disability benefits. [192 N.J. at 213-13 (emphasis in original and added) (internal citations omitted).]

Since Richardson, the Supreme Court has twice used a "policeman who sees his partner shot" as an example of someone who witnesses a traumatic event in the context of mental-mental claims. Russo, supra, 206 N.J. at 31 (quoting Patterson, supra, 194 N.J. at 50). Police officers, even those employed in the inner-city, perform a variety of duties that do not involve being shot at or being at the scene of shooting. There is nothing in the record to suggest that such actions were part of the daily routine of an Orange police officer. Finally, we note that the Board itself found that the 1997 incident involving Fazzari, which involved shooting, was a qualifying event.

Consequently, we conclude that the 2001 incident was 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," and that all six requirements of the Richardson-Patterson standard have been satisfied with respect to that event.

The Board characterized the 2004 event as follows:

With respect to the January 19, 2004 incident, [the ALJ] found that "Mr. Fazzari found himself in the midst of a shootout while stopped at a traffic light. The officers initially believed that they were the target of the shots, and they subsequently watched a young victim lay bleeding from gunshot wounds and die shortly thereafter." However, the record indicates that Mr. Fazzari and Officer Lewis both admitted that the suspect in the Black Suburban in this incident was not firing at them. Also, the January 19, 2004 incident did not occur until three days after Mr. Fazzari filed an application for ordinary retirement disability for "stress disorder, undiagnosed." Thus, Mr. Fazzari[] was already seeking retirement disability at the time of the January 19, 2004 incident. Furthermore, Officer Lewis immediately returned to her duties and continues to be a police officer today.

The Board's analysis is wrong as a matter of law. Fazzari found himself at the scene of a shootout. Both he and Lewis, who were within twenty to twenty-five feet of one of the vehicles involved, had a reasonable, albeit incorrect, belief under the circumstances that they were being fired at by the occupants. They then realized that there was another vehicle involved and at which the shots were being fired. When Fazzari went to assist the driver who had been shot, he thought he was looking at McGuire and was unable to assist Lewis further. He was also unable to perform his duties after that.

In support of its decision, the Board appears to assert that the member must be the target of shots fired for the event to constitute a "terrifying or horror-inducing event" and that, if the event does not disable other officers present in the same manner as the applicant, it cannot satisfy Patterson's objective reasonableness standard. Neither finds support in the case law. Although Lewis did not experience the same psychological reaction as Fazzari, she testified that she initially believed she was under fire and that the shooting ended with a wounded victim, who subsequently died. We conclude that the 2004 incident was 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."

As it did in Russo, supra, 206 N.J. at 33, the Board went astray in this case in failing to recognize that once a member 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 member or another person"- the objective reasonableness standard of Patterson has been met and only the Richardson factors remain to be satisfied.

In this case, however, the Board has already determined that the Richardson factors have been satisfied.

ii.

With respect to the 1997 incident, the Board concluded that Fazzari had satisfied all of the Richardson-Patterson requirements, including direct personal experience of a terrifying or horror-inducing event, but held that his claim was filed out of time.

N.J.S.A. 43:16A-7(1) requires the applicant to seek accidental disability benefits "within five years of the original traumatic event." Fazzari did not file within five years of the 1997 incident. However, the statute allows the Board to consider an application filed after the five-year period if it can be factually demonstrated 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.]

The Board found that there was no delayed manifestation with respect to the 1997 incident, despite the facts that it determined (1) that Fazzari's disability resulted from the cumulative effects of all three events and (2) that Fazzari was able to continue to work until the day of the third event. In In re Crimaldi, 396 N.J. Super. 599, 607 (App. Div. 2007), we held that a "fact-sensitive analysis is required as to . . . why the filing was delayed thereafter [learning of the disability], and what prejudice would result to the [Board] as a result of the late filing, in determining what was 'reasonable.'" The Board failed to make such an analysis.

In Hayes v. Board of Trustees, Police & Firemen's Retirement System, 421 N.J. Super. 43 (App. Div. 2011), we reversed the Board's denial of accidental disability benefits in the context of delayed manifestation. In March of 1998, Hayes and other officers were dispatched in response to a stolen motor vehicle. Id. at 47. As the police approached the stolen vehicle on foot, the driver ran over one of the officers. Ibid. In response, the officers, including Hayes' partner, shot at the car, which resulted in severe injuries to the unarmed teenaged driver, and the death of his teenaged, female passenger. Ibid. Hayes and the car's occupants were the only African-Americans at the scene. Ibid. Hayes then missed "a tour of duty, or approximately four days of work." Ibid.

On December 20, 2001, Hayes arrived on the scene of a crime to discover a wounded officer, who was her brother, shot in the face and neck. Ibid. While shots were being fired, Hayes "cradled her brother" as he bled "profusely." Ibid. Another officer then helped Hayes drag her brother to a police vehicle, where she and her brother remained until the gunfire ceased. Ibid. Hayes took leave for approximately three weeks after this incident, during which time she received counseling. Id. at 47-48. Upon returning, Hayes resumed patrol duties, but "intermittently experienced anxiety and insomnia." Id. at 48. However, she believed this was normal for some police officers. Ibid.

In the summer of 2006, Hayes learned that a gang had placed a "'hit'" on her. Ibid. "She also learned the driver . . . involved in the 1998 shooting had been released from prison," and "she assumed he knew her name" due to the media attention the 1998 incident had received. Ibid.

In September 2006, Hayes' captain reprimanded her because she had refused to allow a civilian employee to access her police computer. Ibid. Hayes then "began to cry uncontrollably, despite the relatively inconsequential nature of the incident," and "her gun was taken and she was placed on indefinite leave." Ibid.

Hayes was not treated by a psychiatrist until December 2006. Ibid. She "testified that she stopped treatment after February 2007 because she could not afford . . . the sessions or the medication." Ibid. Hayes was terminated in May 2007 after her captain told her "he had received 'papers' from the doctor, who recommended against her continued employment." Id. at 49 (footnote omitted).

Hayes applied for accidental disability benefits in July 2007. Id. at 46. The ALJ found that the triggering traumatic event was the December 2001 event, in which Hayes viewed her brother's gun wounds, and that she worked while she suffered from PTSD symptoms. Id. at 50. The ALJ further found that Hayes' disability did not manifest itself until May 2007, after the five-year period to apply for accidental disability benefits had expired. Ibid. At that time, "she was informed . . . that she was 'incapable of performing police duties'" and was terminated. See id. at 49-50. The ALJ concluded that she applied for accidental disability benefits within a reasonable time after manifestation. Ibid.

The Board rejected the ALJ's conclusion, holding that Hayes' disability manifested itself in the summer of 2006 when she broke down after her captain reprimanded her and that the deadline to apply for accidental disability benefits was December 2006, five years from the triggering event. Ibid.

In reversing, we observed:

As used in N.J.S.A. 43:16A-7(1), "manifestation" relates to the "disability." In the context of this case, the "disability" is not mere stress and anxiety, with which petitioner coped for years in performing her police duties, but a condition of such magnitude as to disable her from returning to police work. Something is "manifested" when it becomes "[c]learly apparent to the sight or understanding," when "show[n] or demonstrate[d] plainly." Webster's II New College Dictionary 665 (1995). "Manifest" is synonymous with "obvious;" "manifested" is synonymous with "reveal[ed]." Ibid.

In cases of mental illness, manifestation is not necessarily synonymous with awareness. It is because of the difficulties inherent in the diagnosis of psychiatric illness that the "mental-mental" category of injuries has sparked so much litigation and debate. Patterson, supra, 194 N.J. at 40-48. This is particularly true of PTSD, only recently recognized as a genuine psychiatric disability. Brunell [v. Wildwood Crest Police Dep't, 176 N.J. 225, 240-41 (2003)].

. It is self-evident that mental health disabilities, unlike a broken bone or chronic pain, are not always obvious to the person suffering from the symptoms. See Patterson, supra, 194 N.J. at 48-49 (diagnostic difficulties of connecting an event to the resulting psychiatric injury are greater than when diagnosing the consequences of a physical injury). [Id. at 52-55.]

As was the case with Hayes, Fazzari continued to work as a police officer after the first two traumatic events. Although he was aware that he was having problems functioning and filed for a regular disability retirement in early 2004, he was, like Hayes, trying to cope and continuing to work at the time of the 2004 incident. He was, however, unable to continue to work after that event.

In Hayes, we held that "[t]he critical fact is when the petitioner 'knew or should have known that he was totally and permanently incapacitated from his duties.'" Id. at 54 (quoting Crimaldi, supra, 396 N.J. Super. at 605). In this case, the Board itself found that Fazzari was "totally and permanently disabled as a direct result of the cumulative effects of the three incidents," of which the 2004 event was the last. Under those circumstances, the Board cannot reasonably insist that the filing should have taken place before what it has found was the final precipitating event. In 2004, Fazzari was undergoing treatment and further examination to determine the nature and cause of his condition.

The Board has not articulated any prejudice with respect to the delayed filing resulting from the delayed manifestation, as required by Crimaldi, supra, 396 N.J. Super. at 607. The Board received Fazzari's initial application in February 2004. It had the opportunity to have him examined at that time, although it did not do so until February 2005. Following receipt of that report, the Board approved his initial application for a regular disability retirement. It received the amended application in March of 2005, after which it sought no further examination by its own expert. The Board has not pointed to any facts that it was unable to explore because the original application was not amended to seek accidental disability benefits earlier than March 2005. We conclude, therefore, that the Board's decision refusing to allow a late filing due to delayed manifestation was arbitrary and capricious.

III.

Having found (1) that each of the three events that the Board itself concluded were cumulatively responsible for Fazzari's total disability satisfied all of the Richardson-Patterson requirements and (2) that the Board acted in an arbitrary and capricious manner in refusing to consider Fazzari's late filing resulting from delayed manifestation related to the 1997 event, we conclude that the Board erred in denying Fazzari's application for accidental disability benefits. Consequently, the Board's final administrative determination is reversed, and the matter is remanded to the Board with instructions to award accidental disability benefits to Fazzari.

Reversed and remanded.


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