WILLIAM RICHARDSON VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-3713-16T1

WILLIAM RICHARDSON,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,

Respondent-Respondent.
______________________________

Argued May 9, 2018 – Decided June 28, 2018

Before Judges Koblitz and Suter.

On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 3-10-51878.

John D. Feeley argued the cause for appellant
(Feeley & LaRocca, LLC, attorneys; Pablo N.
Blanco, of counsel; John D. Feeley and Pablo
N. Blanco, on the brief).

Sadyhe T. Bradley, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel; Sadyhe T. Bradley, on the brief).

PER CURIAM
 Petitioner William Richardson appeals from the April 10, 2017

final decision of the Board of Trustees (Board) of the Police and

Firemen's Retirement System (PFRS), adopting the decision of an

administrative law judge (ALJ) who denied petitioner's application

for accidental disability retirement benefits. We affirm.

I

Petitioner was a police officer employed by the City of

Newark. On March 20, 2015, he filed an application with the PFRS

for accidental disability retirement benefits. The application

listed two events, one in 2007 and another in 2013, that Richardson

claimed caused him to suffer from post-traumatic stress disorder

(PTSD). On January 12, 2016, the Board granted Richardson ordinary

disability retirement benefits because he was "totally and

permanently disabled" from PTSD and could no longer perform the

full duties of a police officer. It denied his request for

accidental disability retirement benefits. Richardson appealed,

and the Board transferred the matter to the Office of

Administrative Law (OAL) for a hearing.

Petitioner testified at the hearing before an ALJ about three

events that he alleged were the cause of his PTSD. In a

comprehensive written decision on March 24, 2017, the ALJ concluded

that petitioner did not qualify for an accidental disability

retirement pension because the incidents cited by petitioner were

2 A-3713-16T1
not "undesigned or unexpected" nor "objectively capable of causing

a reasonable person in similar circumstances to suffer a disabling

mental injury." On April 10, 2017, the Board adopted the ALJ's

initial decision.

At the OAL hearing, petitioner testified he was employed as

a Newark City police officer from 2002 to 2014. He was a patrol

officer for about a year and then worked in the gang unit for

seven years. He testified he would receive three to ten calls per

week related to gang violence. He responded to anywhere between

one to fifty "reports of shots fired" a week. He attended the

police academy and had other training after the academy.

Petitioner listed incidents in 2013 and 2007 in support of

his application for accidental retirement benefits. He testified

at the OAL about a third incident in 2003.

In 2007, Richardson and other officers pursued a person in a

vehicle who was driving erratically. When the driver pulled into

a driveway, an officer told him to turn off the car. Instead, the

driver backed up, ramming a police vehicle twice that was parked

directly behind it. The driver pulled a gun from his waistband,

pointed it at another officer and then at petitioner, without

shooting. Richardson and another officer fired, striking the

driver who ran out of the vehicle, leaving the gun, and collapsed.

The driver's wounds were not mortal. No officers were shot.

3 A-3713-16T1
Petitioner did not ask for treatment after the incident and

returned to work. He testified that he "would have dreams about

. . . what happened."

In 2013, Richardson and his partner were patrolling in an

area of Newark he described as a "stronghold of drug activity."

Their function was to "curb violence in that specific area." He

observed two men "blocking public passage." When they approached

the men, one turned and ran away after reaching in his waistband.

His partner ran after him, turning the corner onto another street.

The other man approached petitioner, and admitted he had marijuana

in his possession. In seconds, petitioner heard shots coming from

the direction where his partner had run. Before he reached the

corner, petitioner heard more shots. He testified he "could hear

the bullets come by." Petitioner "peeked out," ran around the

corner and found his partner "in a daze" leaning up against a car,

but uninjured. They both continued to pursue the suspect.

Petitioner testified the incident in 2013 "really affected"

him. He "couldn't sleep" or "stop thinking about the incident,"

was experiencing nightmares, and was "sweating profusely." He was

not treated.

In 2003, petitioner was in a patrol car responding to a "man

with a weapon, shots fired" call, following behind a police

vehicle. As the vehicles passed through an intersection, another

4 A-3713-16T1
driver ran the red light, striking the police vehicle in front of

petitioner, and caused it to overturn. Petitioner aided an officer

injured in the accident who later died at the hospital.

Petitioner was not injured, did not miss any days of work, and did

not seek treatment. He testified that he thought about the 2003

incident "constantly" after the 2013 incident.

All of the expert witnesses testified that petitioner

suffered from PTSD that had a delayed onset. They agreed he was

permanently and totally disabled, unable to work as a police

officer, that the PTSD resulted from his assigned duties, and was

not the result of his negligence.

Dr. Eugene Stephenelli, a psychologist, testified that

petitioner's PTSD was due to "continual exposure to traumatic

events." He described that officers are "exposed to shootings all

the time," and that "stress is cumulative." The 2013 incident was

the trigger for petitioner's PTSD. Dr. Michael Bizzaro, a clinical

social worker, testified that he diagnosed petitioner as suffering

from PTSD delayed onset. This resulted from "repeated trauma"

from the events that petitioner described. Dr. Daniel LoPreto, a

clinical psychologist, testifying for the Board, said that

petitioner's "current condition was essentially and substantially

caused by" the 2013 work incident and that he was "totally and

permanently disabled and unable to perform the safety sensitive

5 A-3713-16T1
responsibilities of a police officer." However, he testified that

this occurred from a single episode, the event in 2013.

The ALJ concluded "there was a delayed manifestation of the

onset of PTSD" directly after the event in 2013. Petitioner's

PTSD occurred as the "cumulative effect" of the events in 2003,

2007 and 2013 with the 2013 event the one that "created full blown

PTSD." However, petitioner did not qualify for an accidental

disability pension because none of the three incidents were

"undesigned and unexpected" as required by Richardson,1 although

all the other requirements of Richardson were satisfied. The ALJ

stated:

That a pursued suspect may be armed and may
draw on an officer is within the contemplation
of an active pursuit situation which officers
are trained to address as well as shooting at
such a suspect and striking same. The same
can be said for coming upon an automobile
accident with a severely injured officer.

The ALJ found that petitioner had not met the Patterson2

standards, concluding that none of the three events was

"objectively capable of causing a reasonable person in similar

circumstances to suffer a disabling mental injury." Patterson set

1
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192
N.J. 189 (2007).
2
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29
(2008).

6 A-3713-16T1
a high standard. "[T]o suggest that when a police officer [is]

involved in an event where shots are exchanged in this day and

age, but the officer and his partner are not physically injured

in any way satisfies the Patterson standard, would significantly

lower what is a deliberately high bar."

On appeal, petitioner argues that the events giving rise to

these incidents satisfied the standards to qualify him for

accidental disability retirement benefits because they were

"undesigned and unexpected," and they were "objectively capable

of causing a reasonable person in similar circumstances to suffer

a disabling mental injury."

II

Our review of administrative agency action is limited. We

generally "afford substantial deference to an agency's

interpretation of a statute that the agency is charged with

enforcing." Richardson, 192 N.J. at 196. "Such deference has

been specifically extended to state agencies that administer

pension statutes," because "'a state agency brings experience and

specialized knowledge to its task of administering and regulating

a legislative enactment within its field of expertise.'" Piatt v.

Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. Div.

2015) (quoting In re Election Law Enf't Comm'n Advisory Op. No.

01-2008, 201 N.J. 254, 262 (2010)). We are not "bound by the

7 A-3713-16T1
agency's interpretation of a statute or its determination of a

strictly legal issue." Richardson, 192 N.J. at 196 (quoting In

re Taylor, 158 N.J. 644, 658 (1999)).

The PFRS provides for both ordinary, N.J.S.A. 43:16A-6, and

accidental, N.J.S.A. 43:16A-7(1), disability benefits. "[A]n

accidental disability retirement entitles a member to receive a

higher level of benefits than those provided under an ordinary

disability retirement." Patterson, 194 N.J. at 43. In Richardson,

the Court held that a claimant for accidental disability retirement

benefits must prove:

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.

8 A-3713-16T1
 [Richardson, 192 N.J. at 212-13.]

The Court defined a "traumatic event" as "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." Id. at 212.

A petitioner who has suffered a "permanent mental disability

as a result of a mental stressor, without any physical impact,"

must meet an additional requirement to qualify for an accidental

disability retirement. Patterson, 194 N.J. at 33. In Patterson,

the Court held that

[t]he 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.

[Id. at 34.]

In Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206

N.J. 14, 33 (2011), the Court clarified that "once a member has

experienced a qualifying incident- a 'terrifying or horror-

9 A-3713-16T1
inducing event . . . ,'- the objective reasonableness standard"

has been met. However, we have held that "the diagnostic criteria

for PTSD are not identical to the Patterson requirement." Thompson

v. Bd. of Trs., Teacher's Pension & Annuity Fund, 449 N.J. Super.

478, 495 (App. Div. 2017), aff'd o.b., __ N.J. __ (2018). "[T]he

Supreme Court in Patterson . . . did not hold that any employee

who obtains a PTSD diagnosis qualifies for accidental disability

benefits." Ibid.3

The Court has recently summarized as "two-step" the

appropriate analysis in cases of permanent mental incapacity

resulting from "an exclusively psychological trauma." Mount v.

Bd. of Trs., Police & Firemen's Ret. Sys., __ N.J. __, __ (2018)

(slip op. at 31).

The court first determines whether the member
directly experienced a "terrifying or horror-
inducing event that involves actual or

3
"[T]he diagnostic criteria for PTSD includes the requirement
that the person

has been exposed to a traumatic event in which both of the
following were present:

(1) the person experienced, witnessed or was confronted with an
event or events that involved actual or threatened death or
serious injury, or a threat to the physical integrity of self or
others

(2) the person's response involved intense fear, helplessness or
horror."

[Patterson, 194 N.J. at 49 (quoting DSM-IV-TR at 467).]

10 A-3713-16T1
 threatened death or serious injury, or a
similarly serious threat to the physical
integrity of the member or another person."
Patterson, 195 N.J. at 50. . . . . If the
event meets the Patterson test, the court then
applies the Richardson factors to the member's
application.

[Id. at 31-32.]

Petitioner must first satisfy Patterson. The 2007 and 2013

incidents both involved shootings. In the 2007 incident, the

driver did not shoot at the officers; they shot him. The incident

did not involve death or serious injury to a police officer,

although the driver did point the gun at petitioner and his

partner. In 2013, petitioner heard gun shots but he was not in

the line of fire. The incident did not involve a death or injury.

Petitioner did not list the 2003 incident in his accidental

disability application. He worked for over a decade after it,

without incident. It was only after the 2013 event that he began

to think more about the 2003 accident. Petitioner observed the

accident; he was not involved in it. He rendered aid to one of

the victims who later died.

We agree that on the facts of these events, the Board did not

act arbitrarily, capriciously or unreasonably in adopting the

findings of the ALJ that the events were not such as to cause a

reasonable officer in similar circumstances to suffer a disabling

mental injury. This is not a case where there was physical

11 A-3713-16T1
contact; it did not involve actual or threatened death to

petitioner; it did not involve incidents outside his training,

involve the shooting of a police officer or death to his partner.

Even if one or more of the events did qualify as terrifying

or horrifying events for a police officer because of the threat

of injury, petitioner must still satisfy Richardson's factors.

See Mount, __ N.J. __ (slip op. at 32) (providing that once the

Patterson standard is met, the officer must also satisfy the

Richardson tests). In Russo, the Court stated "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." 206 N.J. at 33. Recently, the

Court has clarified that "the Board and a reviewing court must

carefully consider not only the member's job responsibilities and

training, but all aspects of the event itself. No single factor

governs the analysis." Mount, __ N.J. __ (slip op. at 33).

Petitioner was a trained police officer. His duties involved

making arrests and attending to motor vehicle accidents and

investigations. Some of the accidents or investigations could be

expected to involve serious injuries or fatalities. See Mount,

__ N.J. __ (slip op. at 34). There was nothing here that was

outside the scope of petitioner's general duties as a police

officer. He was not put in a situation where he lacked equipment

12 A-3713-16T1
or training. Petitioner had years of experience in the gang unit

where he routinely responded to calls involving shots fired. Given

his patrol duties he had reason to anticipate that violence might

occur. We cannot say that the Board's decision was arbitrary,

capricious or unreasonable, given his training, experience and

employment as a police officer, in holding that the events of

2013, 2007 and 2003 were not "undesigned or unexpected."

Affirmed.

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