ADAM MOGUL VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'SRETIREMENT SYSTEM(BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2214-15T1
ADAM MOGUL,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________________
Argued February 14, 2017 – Decided August 18, 2017
Before Judges Ostrer and Leone (Judge Ostrer
concurring).
On appeal from the Board of Trustees,
Police and Firemen's Retirement System, PFRS
No. 3-10-048888.
M. Scott Tashjy argued the cause for
appellant (The Tashjy Law Firm, LLC,
attorneys; Mr. Tashjy, of counsel and on the
briefs).
Jeff S. Ignatowitz, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel; Mr. Ignatowitz, on the
brief).
PER CURIAM
Petitioner Adam Mogul appeals the January 11, 2016 decision
of the Board of Trustees (Board) of the Police and Firemen's
Retirement System (PFRS). The Board found Mogul ineligible for
accidental disability retirement benefits under N.J.S.A. 43:16A-
7(1). We affirm.
I.
Except as noted, the following facts were found by the
Administrative Law Judge (ALJ) in his October 29, 2015 decision
and adopted by the Board. Mogul enrolled in the PFRS when he
began his career as a police officer for the Township of Ocean
in 1994. By 2011, Mogul reached the rank of corporal.
On March 3, 2011, Mogul and officers Matthew Quinn and
Jeremy Samuel responded to a "well being" check of an allegedly
intoxicated and suicidal civilian. Through a window of the
residence, Mogul observed the civilian sleeping on the couch.
Mogul knocked on the door of the residence and identified
himself as a police officer. The civilian ignored Mogul's
request to come to the front door. Mogul observed as the
civilian walked toward a table, obtained a black handgun, and
"racked the slide" as if to chamber a round.
Mogul drew his firearm, advised the other officers the
civilian had a gun, and moved away from the door toward the
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street. The civilian opened the door and displayed the gun.
When Mogul directed the civilian to drop the gun, the civilian
aimed the gun at Mogul. Mogul turned to obtain cover but struck
a tree, causing him to fall to one knee.
With his back to the civilian, Mogul heard a noise he
equated with a "dry firing." Mogul explained that he heard a
"click" that he knew was "a gun either being misfired or a gun
[being triggered] not having a round in it." Nonetheless, Mogul
wondered whether he had been shot. Mogul turned toward the
civilian. Mogul testified that he again told the civilian to
drop the gun and that he was just about to shoot the civilian
when he saw a projectile hitting the civilian.
Officer Quinn observed the civilian point the weapon toward
Mogul and saw Mogul dive for cover. Quinn heard a click which
he equated with the civilian disengaging the safety. Quinn
fired one shot, and the civilian fell face first to the ground.
Quinn removed the firearm from the civilian's hand and saw it
contained no magazine.
Mogul testified he ran over to the civilian and determined
Officer Quinn shot him. Mogul knew he needed to call for
assistance. The officers started first aid, but Mogul knew the
civilian was already dead. Mogul instructed the other officers
not to touch the civilian's weapon. Mogul testified he knew
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"through protocol" he needed to take Quinn's weapon, and he did.
Mogul testified that after a detective arrived and took Quinn
away, he "became jelly," "was walking around in circles," and
"didn't know what to do."
Following the incident, Mogul took two to three weeks off
from work. He returned to work for an additional two years and
was promoted to Sergeant, but had difficulty with the work. On
November 27, 2013, Mogul filed an application for accidental
disability retirement benefits based on the March 3, 2011
incident.
On July 15, 2014, the Board denied Mogul's application for
accidental disability retirement benefits, instead awarding him
ordinary disability retirement benefits. Mogul appealed, and
the Board assigned the matter as a contested case to the Office
of Administrative Law. The ALJ affirmed the denial on October
29, 2015, finding the incident was not undesigned and
unexpected. On January 11, 2016, the Board affirmed the ALJ's
decision.
II.
We must hew to our standard of review. Judicial "review of
administrative agency action is limited. 'An administrative
agency's final quasi-judicial decision will be sustained unless
there is a clear showing that it is arbitrary, capricious, or
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unreasonable, or that it lacks fair support in the record.'"
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,
27 (2011) (citation omitted). "A reviewing court 'may not
substitute its own judgment for the agency's, even though the
court might have reached a different result.'" In re
Stallworth, 208 N.J. 182, 194 (2011) (citation omitted).
"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). "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) (citation omitted). "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.'" Richardson, supra, 192 N.J. at 196 (citation
omitted). Courts "apply de novo review to an agency's
interpretation of a statute or case law." Russo, supra, 206
N.J. at 27.
5 A-2214-15T1
III.
"[A]n accidental disability retirement entitles a member to
receive a higher level of benefits than those provided under an
ordinary disability retirement." Patterson v. Bd. of Trs.,
State Police Ret. Sys., 194 N.J. 29, 43 (2008). A PFRS member
is eligible to "be retired on an accidental disability
retirement allowance" 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." N.J.S.A. 43:16A-7(1).
"'[T]he question of what constitutes a "traumatic event"
. . . has dogged courts for generations.'" Thompson v. Bd. of
Trs., Teachers' Pension & Annuity Fund, 449 N.J. Super. 478, 484
(App. Div. 2017) (quoting Russo, supra, 206 N.J. at 28). "[O]ur
Supreme Court has redefined and applied that phrase in three
cases: Richardson, Patterson, and Russo." Ibid.
This is a "so-called mental-mental" case, "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). "In a mental-mental case, Patterson is the threshold
that must be met for further inquiry to be warranted." Russo,
supra, 206 N.J. at 32.
6 A-2214-15T1
Under Patterson, supra, "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
1
of the member or another person." 194 N.J. at 50. This
"assure[s] that the traumatic event is objectively capable of
causing a permanent, disabling mental injury to a reasonable
person under similar circumstances." Ibid.
Here, the Board initially found, and the ALJ agreed, that
the Patterson threshold was not met. However, the Board
ultimately found the Patterson threshold was met. That
conclusion is unchallenged on appeal.
Once the Patterson threshold is met, "to obtain accidental
disability benefits for a mental injury precipitated by an
exclusively mental stressor, a member must satisfy the standards
in Richardson." Ibid. Under Richardson, supra, "to obtain
accidental disability benefits, a member must prove . . . that
he is permanently and totally disabled . . . as a direct result
of a traumatic event," "that the traumatic event occurred during
and as a result of the member's regular or assigned duties,"
1
The Court commented that "[u]nder that [Patterson] standard a
permanently mentally disabled policeman who sees his partner
shot . . . could vault the traumatic event threshold."
Patterson, supra, 194 N.J. at 50.
7 A-2214-15T1
"that the disability was not the result of the member's willful
negligence," and "that the member is mentally or physically
incapacitated from performing his usual or any other duty." 192
N.J. at 212-13.
For a traumatic event to qualify, it must be "identifiable
as to time and place," "undesigned and unexpected," and "caused
by a circumstance external to the member (not the result of pre-
existing disease that is aggravated or accelerated by the
work)." Ibid. (emphasis added). Essentially, the traumatic
event must have been "an unexpected happening." Id. at 214.
The ALJ and the Board found Mogul failed to establish that the
event was "undesigned and unexpected." Ibid.
In Russo, our Supreme Court applied the Richardson
framework in the context of a Patterson mental-mental case. In
particular, the Court explained that "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." Russo, supra,
206 N.J. at 33. For instance, "an emergency medical technician
[(EMT)] 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
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'undesigned and unexpected' standard because that is exactly
what his training has prepared him for." Ibid.
Like the EMT encountering a terrible fatal accident, Mogul
"experience[d] a horrific event which falls within his job
description and for which he ha[d] been trained." Ibid. Mogul
had a civilian point a gun at him, momentarily thought he had
been shot, and witnessed another officer shoot the civilian.
Mogul was trained to handle such incidents. Mogul
underwent training at the police academy, received continuing
training and semi-annual firearm training thereafter, served as
a police officer for seventeen years, and was promoted in rank.
Mogul admittedly received extensive and frequent training in the
use of firearms and deadly force. The Board found that after
the civilian picked up the gun, Mogul drew his own firearm and
took cover as he was trained to do. The Board agreed with the
ALJ that "a police officer's training in the use of force and
how to take cover is a basic tool set of a police officer."
Contrary to Mogul's argument, under Russo "a member's training
must be considered." Thompson, supra, 449 N.J. Super. at 504.
Moreover, this was "a situation in which [Mogul] should
have expected to find himself" in his duties as a police
officer. Moran v. Bd. of Trs., Police & Firemen's Ret. Sys.,
438 N.J. Super. 346, 355 (App. Div. 2014). The Board agreed
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with the ALJ that "a police officer using deadly force, or being
present while a colleague uses deadly force, is not undesigned
or unexpected." The Board found "having to disarm or shoot an
armed subject, while certainly stressful, is a situation police
officers are trained for and are expected to confront."
Confrontations with armed civilians are an inherent part of a
police officer's work, not "an unexpected happening." See
Richardson, supra, 192 N.J. at 214. Thus, these actions are not
undesigned and unexpected in a police officer's line of work.
Thus, Mogul's situation was analogous to the EMT "who comes
upon a terrible accident involving life-threatening injuries or
death." Russo, supra, 206 N.J. at 33. Because the
confrontation was "a horrific event which falls within [Mogul's]
job description and for which he has been trained," under the
Supreme Court's analysis in Russo he was "unlikely to pass the
'undesigned and unexpected' test." Ibid. Given Russo, we
cannot say it was arbitrary, capricious, or unreasonable for the
Board to conclude Mogul did "not satisfy Richardson's
'undesigned and unexpected' standard because that is exactly
what his training has prepared him for." Ibid.2
2
Cf. Russo, supra, 206 N.J. at 34-35 (ruling it was unexpected
for "a newly-minted police officer" who was "completely
untrained and unequipped for firefighting" to be "ordered into a
burning building" to rescue the occupants); Thompson, supra, 449
10 A-2214-15T1
Mogul argues the incident was undesigned and unexpected
because he was on a routine "well being" check, and he had never
been threatened with a weapon or had to shoot anyone on a "well
being" check. However, Mogul went on the check prepared for
such eventualities: Mogul was armed and wearing a bullet-proof
vest. Moreover, Mogul was aware the civilian was reportedly
intoxicated and suicidal. In any event, Mogul's argument is too
narrow in focus. Regardless of what particular event they are
responding to, police officers are expected to be prepared to
encounter armed civilians and dangerous situations.
Mogul cites Richardson, supra, where, "[w]hile performing
the regular tasks of his job as a corrections officer, subduing
an inmate, Richardson was thrown to the floor and hyperextended
his wrist." 192 N.J. at 214. Our Supreme Court held "[t]he
occurrence was . . . unexpected and undesigned" and "a traumatic
event." Id. at 214-15. The Court noted a police officer who
becomes "permanently and totally disabled during the chase [of a
suspect] because of a fall, has suffered a traumatic event."
N.J. Super. at 504 (ruling physical assaults on a teacher were
undesigned and unexpected where she had not "received training
about handling violence from special needs students"); Moran,
supra, 438 N.J. Super. at 355 (ruling that, because an engine
company firefighter's "training had not prepared him to break
into burning buildings without the battering rams and other
specialized equipment used by the truck company," it was
undesigned and unexpected that he would have to kick in a door
to rescue victims trapped inside a burning building).
11 A-2214-15T1
Id. at 213. The Court rejected the argument "that a traumatic
event cannot occur during ordinary work effort. Indeed it can.
A policeman can be shot while pursuing a suspect," which would
be "undesigned and unexpected." Id. at 214.
Richardson's holding, and its examples, all involve
3
permanently-disabling physical injury to the officer.
Richardson suggests it may be undesigned and unexpected for a
police officer to be shot or to receive a permanently-disabling
physical injury in pursuing and subduing a suspect. However, it
is not undesigned and unexpected for an officer to confront an
armed or dangerous suspect, or to use necessary force including
deadly force against a suspect. Under the Supreme Court's
analysis in Russo for mental-mental disabilities, Mogul's mental
disability does not satisfy Richardson's "undesigned and
unexpected" standard because such an event "falls within [a
police officer's] job description and [is an event] for which he
has been trained." Russo, supra, 206 N.J. at 33.
3
The other examples in Richardson, supra, also involved physical
injury that could be permanently disabling. 192 N.J. at 214
("[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."). Similarly, the
claimant suffered permanently-disabling physical injury in Moran
and Brooks v. Bd. of Trs. Pub. Emps.' Ret. Sys., 425 N.J. Super.
277, 280 (App. Div. 2012), where a custodian carrying a 300-
pound weight bench "heard his shoulder 'snap' as the bench fell
to the floor, which resulted in a total and permanent
disability."
12 A-2214-15T1
Here, Mogul did not suffer a permanently-disabling physical
injury. Instead, Mogul confronted an armed civilian, mistakenly
believed the civilian shot him, and saw another officer use
deadly force against the civilian. 4 We cannot say the Board was
arbitrary, capricious, or unreasonable in finding such a
confrontation, which resulted in no physical injury to Mogul,
was not undesigned and unexpected.
Affirmed.
4
Mogul was not actually shot at or wounded and did not himself
kill the civilian. There was no "firing of [Mogul's] weapon or
an exchange of gun fire" or "serious bodily injury" to Mogul or
to "another law enforcement officer employed in the same
agency." Patterson, supra, 194 N.J. at 49 (quoting N.J.S.A.
40A:14-196). Thus, we do not address such situations.
13 A-2214-15T1
OSTRER, J.A.D., concurring.
I concur with and join in the court's opinion. Our Supreme
Court has declared that "a traumatic event" under N.J.S.A.
43:16A-7(1) must be "undesigned and unexpected." Richardson v.
Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 192
(2007). In a case involving a claim for mental health
disability, the Court clarified that what qualifies as
"undesigned and unexpected" depends on an employee's job duties
and training: "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." Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206
N.J. 14, 33 (2011).
That test constrains us to reach a harsh result in this
case. Had the civilian pointed and dry fired his gun not at
Mogul, but at a third person, such as a visiting social worker
covered by the Public Employees' Retirement System, see N.J.S.A.
43:15A-43 (authorizing accidental disability pension), and that
worker subsequently suffered a mental disability, we might have
reached a different result. That is because the social worker's
training and job description did not contemplate such a
scenario. Yet, those most likely to suffer post-traumatic
stress disorder are public employees like Mogul, who confront
"terrifying or horror-inducing events," see Patterson v. Bd. of
Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008), as a
regular part of their jobs and become disabled despite all their
training. See Thompson v. Bd. of Trs., Teachers' Pension &
Annuity Fund, 449 N.J. Super. 478, 508 n.3 (App. Div. 2017)
(Ostrer, J., dissenting) ("Rates of PTSD are higher among
veterans and others whose vocation increases the risk of
traumatic exposure (e.g., police, firefighters, emergency
medical personnel)" (quoting American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, 276 (5th
ed. 2013))). Needless to say, we are bound by the Court's
precedent as we understand it. Moscatello ex rel. Moscatello v.
Univ. of Med. and Dentistry of N.J., 342 N.J. Super. 351, 363-64
(App. Div.), certif. denied, 170 N.J. 207 (2001).
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