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Kackos v. Board of Trustees

Superior Court of New Jersey, Appellate Division

November 1, 2013

CLEMENT KACKOS, Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 15, 2013.

On appeal from the Board of Trustees, Public Employees' Retirement System, Docket No. 2-10-193721.

Robert E. Margulies argued the cause for appellant (Margulies Wind, attorneys; Mr. Margulies, of counsel; Jeffrey R. Kivetz, on the brief).

Jeffrey S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert H. Stoloff, Assistant Attorney General, on the brief).

Before Judges Yannotti and St. John.

PER CURIAM.

Clement Kackos appeals from a final determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), dated March 22, 2012, finding that he was not eligible for accidental disability retirement benefits. We affirm.

The facts are essentially undisputed. On September 11, 2001, Kackos was employed as a toll collector for the New Jersey Turnpike Authority and assigned to Exit 14B in Jersey City. Kackos claimed that, at approximately 9:15 a.m., he felt something like a "blast" or "concussion." He looked up and observed that one of the World Trade Center (WTC) towers had been hit by a plane. Kackos was outside of his booth when he saw a plane strike the other tower.

Kackos testified that he was "shaken" and "very nervous." He said observing the planes hitting the WTC towers "brought back" memories of his experiences in the Vietnam War, during which he had been involved in "explosions." Kackos returned to his home and watched the television coverage of the terrorist attack upon the WTC. He was scheduled to return to work the following day but was unable to do so. Kackos was later declared totally disabled and eligible for social security disability benefits.

Kackos filed an application for accidental disability retirement benefits pursuant to N.J.S.A. 43:15A-43, claiming he was permanently and totally disabled from the performance of his toll collector duties as a result of a traumatic event that occurred on September 11, 2001. The Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

The ALJ issued a decision dated August 1, 2005, in which she concluded that Kackos was entitled to the benefits he was seeking. The Board issued a decision dated September 22, 2005, rejecting the ALJ's initial decision. The Board found that Kackos did not qualify for an accidental disability pension.

Kackos appealed. While the appeal was pending, the Supreme Court decided Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), which modified the standards for determining eligibility for accidental disability retirement benefits. We remanded the matter to the Board for reconsideration in light of Richardson. Kackos v. Bd. of Trs., Pub. Employees' Ret. Sys., No. A-1200-05 (App. Div. Aug. 20, 2007).

Thereafter, the Board again referred the matter to the OAL for a hearing before an ALJ. At the hearing, Kackos presented testimony from Glenn R. Schiraldi, Ph.D., who was qualified as an expert in stress and post-traumatic stress disorder (PTSD). Schiraldi testified that he did not know whether Kackos's PTSD predated September 11, 2001. He stated, however, ...


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