NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4846-15T3
JOHN O'NEIL,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
______________________________
Argued September 12, 2017 — Decided October 10, 2017
Before Judges Reisner and Mayer.
On appeal from the Board of Trustees, Police
and Firemen's Retirement System, PFRS No. 3-
99545.
John D. Feeley argued the cause for appellant
(Feeley & LaRocca, LLC, and The Blanco Law
Firm, LLC, attorneys; Mr. Feeley on the brief;
Pablo N. Blanco, of counsel and on the brief).
Cameryn J. Hinton, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Hinton, on the brief).
PER CURIAM
John O'Neil appeals from a final agency decision of the Board
of Trustees, Police and Firemen's Retirement System (Board)
denying his request for accidental disability retirement benefits.
The Board concluded that O'Neil's disability was not undesigned
and unexpected and that the psychological injury he suffered did
not result from a terrifying or horror-inducing event involving
actual death or injury. Because we disagree, we reverse and remand
to the Board to grant accidental disability retirement benefits
to O'Neil.
A dispatcher contacted O'Neil, a police officer, to respond
to a call about a man with a gun at a bar. O'Neil responded and
recognized a pickup truck that belonged to his brother, Darin
O'Neil. O'Neil approached the car and saw his brother with a
gaping hole in his chest from a self-inflicted gunshot. O'Neil
took his brother's pulse and discovered he had no pulse. O'Neil
testified that he then "broke down" and had to be removed from the
scene by fellow officers.
Following the event, O'Neil saw several doctors who diagnosed
him as suffering from post-traumatic stress disorder (PTSD),
anxiety, depression and sleep disorder. He has not returned to
work since the incident.
O'Neil applied for accidental disability retirement benefits
attributable to the emotional injury suffered when, in performing
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his duty as a police officer, he discovered his brother dead by a
self-inflicted gunshot wound. The Board denied the application,
determining that O'Neil was not totally and permanently disabled.
O'Neil requested a hearing, and the Board referred the matter to
the Office of Administrative Law.
An administrative law judge (ALJ) heard testimony from
O'Neil, Dr. David Pilchman, a psychology expert who evaluated
O'Neil twice, Dr. Jakob Steinberg, O'Neil's treating psychologist
and traumatic stress expert, and Dr. Richard Filippone, the Board's
medical expert.
O'Neil testified that he never expected to handle a matter
involving his family. O'Neil, who was not a police officer in the
municipality where his brother committed suicide, was asked to
respond because the State Police were unable to handle the matter.
According to O'Neil, he believed it was the department's policy
not to assign officers to situations involving family members, and
had the dispatcher known the matter involved his brother, a
different police officer would have been dispatched. O'Neil
testified that since the incident he cannot return to work and
cannot handle a gun.
During the hearing, O'Neil presented the testimony of two
medical experts. Dr. Pilchman testified that while police officers
are trained to deal with horrific situations, including suicide,
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the trauma is heightened when the matter is personal to the
officer. Dr. Pilchman also testified that witnessing the suicide
of a family member is vastly different from witnessing the suicide
of a stranger. According to Dr. Pilchman, as a result of this
incident, O'Neil is incapable of returning to work as a police
officer. Concurring with Dr. Pilchman, Dr. Steinberg testified
that O'Neil is totally and permanently disabled. Contrary to the
testimony of O'Neil's medical experts, the Board's expert, Dr.
Filippone, testified that O'Neil suffered only a minor impact from
the incident and was not disabled.
The ALJ found that the testimony of O'Neil and O'Neil's
medical experts was more credible than the testimony of the Board's
medical expert. Based on that credible testimony, the ALJ found
O'Neil was permanently and totally disabled and awarded him
accidental disability retirement benefits.
The Board rejected the ALJ's recommendation and concluded
that O'Neil was not eligible for accidental disability retirement
benefits. In its decision, the Board adopted the ALJ's fact
findings and agreed that O'Neil was totally and permanently
disabled. However, the Board concluded that the ALJ misapplied
the law and confused the applicable tests requiring that the
incident be (1) "undesigned and unexpected" under Richardson v.
Board of Trustees, Police & Firemen's Retirement System, 192 N.J.
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189 (2007), and (2) satisf[y] the standard for a "mental-mental"
claim under Patterson v. Board of Trustees, Police & Firemen's
Retirement System, 194 N.J. 29 (2008).
"Generally, courts afford substantial deference to an
agency's interpretation of a statute that the agency is charged
with enforcing." Richardson v. Bd. of Trs., Police & Firemen's
Ret. Sys., 192 N.J. 189, 196 (2007). "An appellate court, however,
is 'in no way bound by the agency's interpretation of a statute
or its determination of a strictly legal issue.'" Id. at 196
(quoting In re Taylor, 158 N.J. 644, 658 (1999)). Courts "apply
de novo review to an agency's interpretation of a statute or case
law." Russo v. Bd. of Trs., Police & Fireman's Ret. Sys., 206
N.J. 14, 27 (2011).
A service member is eligible for accidental disability
retirement benefits if 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 and that such
disability was not the result of the member’s
willful negligence and that such 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.
[N.J.S.A. 43:16A-7(1).]
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As the Richardson Court explained "a traumatic event is
essentially the same as what we historically understood an accident
to be - an unexpected external happening that directly causes
injury and is not the result of pre-existing disease alone or in
combination with work effort." Richardson, supra, 192 N.J. at 212.
In Richardson, the Court set forth the following factors a claimant
must prove to qualify for accidental disability retirement
benefits:
1. [the claimant] 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.
[Id. at 212-13.]
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The factor at issue is whether the traumatic event experienced
by O'Neil qualified as "undesigned and unexpected." In this case,
during the course of his police duties, O'Neil was unexpectedly
confronted with his brother's suicide. While O'Neil had responded
to other horrific situations in the performance of his duties, he
had never been called to a scene involving a family member, and
ordinarily would not have been given such an assignment.
Contrary to the Board's position, there is nothing ordinary
or expected about responding to the suicide of a family member.
There is no evidence in the record establishing that personal
tragedies are expected to occur during the performance of police
work or that that officers are prepared for the occurrence of
personal tragedies. Training that might be provided to a police
officer regarding a stranger's suicide would not prepare an officer
encountering the suicide of a family member. See e.g. Thompson
v. Bd. of Trs., Teachers' Pension & Annuity Fund, 449 N.J. Super.
478, 503 (App. Div. 2017), certif. granted, N.J. (2017)
(incident undesigned and unexpected because there was no evidence
that the special education teacher was trained to handle violent
special needs students).
The Board failed to appreciate the idiosyncratic
circumstances in this case. This was not a routine call for an
officer to respond to a suicide. The situation involved the
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suicide of O'Neil's brother. For the Board to equate the two
situations improperly focused on O'Neil's every day duty as a
police officer and ignored the reality that O'Neil was unexpectedly
dispatched to the scene of his brother's suicide. Because the
incident in this case uniquely involved a close family member, the
Board erred in determining that O'Neil's discovery of his brother's
suicide was not "undesigned and unexpected."
Next, we examine whether O'Neil's injury met the test
established in Patterson. Under Patterson, "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." Patterson, supra, 194 N.J. at
34. This "assure[s] that the traumatic event . . . is objectively
capable of causing a reasonable person in similar circumstances
to suffer permanent, disabling mental injury." Ibid. These cases
are "so-called mental-mental" cases, "in which a purely mental
stimulus results in emotional or nervous injury." Brunell v.
Wildwood Crest Police Dep't, 176 N.J. 225, 243 (2003). The Board
concluded that O'Neil did not satisfy the Patterson test because
he was not subjected to the threat of death or serious injury and
did not witness his brother discharge the gun.
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We disagree with the Board's determination that O'Neil failed
to satisfy the Patterson test. The facts in this case "must be
viewed with a wider lens than the one the Board applied." Moran
v. Bd. of Trs., Police & Firemen's Ret. Sys., 438 N.J. Super. 346,
354 (App. Div. 2014).
The facts in this case are distinctive. O'Neil reported to
the bar's parking lot and discovered his brother had killed himself
using a shotgun. O'Neil saw his brother slumped over in the car
with a gaping hole in his chest. As such, O'Neil's discovery of
his brother's body was a "direct personal experience" under
Patterson. In addition, the incident involved the death of
O'Neil's brother, not a stranger. The circumstance qualifies as
a "horror-inducing event" as described in Patterson.
The Board found that O'Neil did not meet the Patterson test
because he witnessed only the aftermath of his brother's suicide.
O'Neil suffers from a serious injury, PTSD, directly attributable
to the discovery of his brother's death by suicide. The limitation
imposed by the Board, that the violence must be threatened or
undertaken in the claimant's presence, is nowhere expressed in
Patterson. Instead of following Patterson, the Board relied on
unpublished decisions that are not on point here.
The Court's holdings in Richardson and Patterson compel an
award of accidental disability retirement benefits under the rare
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and unique circumstances presented in this case. Accordingly, we
reverse the Board's decision and remand to the Board to grant
accidental disability retirement benefits to O'Neil.
Reversed and remanded. We do not retain jurisdiction.
10 A-4846-15T3
JOHN O'NEIL VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'SÂ RETIREMENT SYSTEM(POLICE AND FIREMEN'S RETIREMENT SYSTEM)
Combined Opinion