Jaclyn Thompson v. Board of Trustees, Teachers' , 449 N.J. Super. 478 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5028-14T1
JACLYN THOMPSON,
Petitioner-Appellant,
APPROVED FOR PUBLICATION
v.
April 11, 2017
BOARD OF TRUSTEES, TEACHERS'
APPELLATE DIVISION
PENSION AND ANNUITY FUND,
Respondent-Respondent.
____________________________________
Argued September 13, 2016 – DecidedApril 11, 2017
, 2017
Before Judges Ostrer, Leone, and Vernoia
(Judge Ostrer dissenting in part).
On appeal from the Board of Trustees of the
Teachers' Pension and Annuity Fund,
Department of Treasury.
Richard A. Friedman argued the cause for
appellant (Zazzali, Fagella, Nowak,
Kleinbaum & Friedman, attorneys; Mr.
Friedman, of counsel and on the briefs;
Edward M. Suarez, Jr., on the briefs).
Robert S. Garrison, Jr., Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Mr. Garrison,
on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Petitioner Jaclyn Thompson alleged that she was mentally
disabled as a result of three incidents at work. She was
awarded ordinary disability retirement benefits by respondent
the Board of Trustees (Board) of the Teachers' Pension and
Annuity Fund (TPAF). She appeals the Board's June 5, 2013
decision to deny accidental disability benefits.
Our Supreme Court has held that to obtain accidental
disability benefits for a purely mental disability, "[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." Patterson v. Bd. of Trs., State Police Ret. Sys., 194
N.J. 29, 34 (2008). The Court has applied that Patterson
requirement to a person whose mental disability resulted from an
incident where the person also suffered temporary physical
injury. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206
N.J. 14, 33 (2011).
Petitioner sustained no physical injuries in the three
incidents, save for "a little bit of a stomachache" which was
minor and temporary, and she required no medical treatment.
However, Thompson argues she need not meet the Patterson
requirement for mental disability because the incidents involved
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physical contact. She cites an Appellate Division case which
involved a potentially-fatal injury requiring debilitating
treatment. Caminiti v. Bd. of Trs., Police & Firemen's Ret.
Sys., 431 N.J. Super. 1 (App. Div. 2013). We hold that, under
Russo, the Patterson requirement applies to claims for
accidental disability benefits for mental disability arising
from incidents involving mental and physical stressors if any
physical injury was temporary or minor. To the extent Caminiti
suggests otherwise, we must follow the Supreme Court's decision
in Russo and apply the Patterson requirement.
Because the three incidents, individually and collectively,
were not terrifying or horror-inducing events involving actual
or threatened death or serious injury, or a similarly serious
threat to the physical integrity of the member or another
person, they do not meet the Patterson requirement. Therefore,
we affirm.
I.
Petitioner testified as follows before the Administrative
Law Judge (ALJ). Petitioner was a health and physical education
teacher at North Hunterdon Regional High School. She taught
regular gym classes, coached, and served as an advisor and
mentor. She also taught adaptive gym classes specifically
geared toward students with disabilities.
3 A-5028-14T1
On January 21, 2011, during petitioner's health class, an
approximately seventeen-year-old female student with Down
syndrome began hitting a teacher's aide. When petitioner
intervened, the student became extremely irate, punched
petitioner in the stomach "very hard," and slapped her across
her face. Petitioner and another aide immediately escorted the
screaming student from the classroom. Petitioner was "a little
nervous" during the incident but figured "it happens." She went
to the nurse's office to write a report, and "kind of laid in
the nurse's office for a few minutes only because [she] had a
little bit of a stomachache." Petitioner did not seek any
medical attention and sustained no lasting physical injuries.
As class was over, she went home, but she returned to work the
next day with no ill effects.
On September 22, 2011, petitioner was teaching an adaptive
physical education class. During a Nerf pin soccer game, a
sixteen-year-old male student with autism and borderline
schizophrenia became severely angry, grabbed a pin, and
approached a teacher's aide. Petitioner approached, and the
extremely irate student "began to kind of push and shove" her
shoulders with his hands and spat on the floor. Petitioner and
an aide removed the student from the classroom. Petitioner was
not physically injured and did not seek medical attention or
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counseling. She went to the nurse's office, reported the
situation, and returned to work. She "was a little bit more
like nervous going in the classroom" with "a little bit" of
anxiety, and was "definitely on edge" about "what's next," but
she had no psychiatric problems.
On October 29, 2011, during another Nerf pin soccer game, a
fifteen-year-old male student with autism threw a ball at
another student. When petitioner corrected him, he became very
angry. He loudly told petitioner "You're an assh*le" and "I'm
going to kick your ass," briefly "had [her] hands behind [her]
back," then let go and threw three punches at her face, but she
dodged the punches. Teacher's aides grabbed the student and
escorted him out.
This third incident "did happen fast," but to petitioner it
"fe[lt] like forever" that her hands were behind her back. She
felt "helpless," "had no control," and "was petrified."
Afterwards, she was very upset but calmed down and finished the
class. She went to the nurse's office to report the incident.
She had no physical injuries and went on with her day.
After going home and "sleeping on it," petitioner became
"hysterical" and had "a downright almost panic attack." Her
husband, a police officer, had her call a psychologist for
police officers. The psychologist did not think petitioner
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"belonged in any kind of school atmosphere" and wrote a note
putting her on leave. She never returned to work.
Eight months later, petitioner filed a request for
accidental disability retirement benefits based on the three
incidents. She stated that she was afraid of turning her back
on students, and that she had panic attacks when attending her
stepson's wrestling match and when seeing a special education
class out in the community. Her psychiatrist diagnosed her with
post-traumatic stress disorder (PTSD). The TPAF Board denied
her request for accidental disability benefits but found
petitioner qualified for a deferred retirement.
Petitioner appealed to the Office of Administrative Law.
The ALJ heard testimony from petitioner, her psychiatrist, and a
psychologist called by the Board. The ALJ found petitioner did
not meet the standard for accidental disability benefits.
However, the ALJ granted her ordinary disability benefits
because, as a result of the incidents, "she became anxious,
suffering from panic attacks, nightmares, vivid dreams, severe
depression, lethargy, lack of motivation, and tachycardia." The
ALJ found that she suffered from PTSD, that medication was
ineffective at abating her symptoms, and that she was totally
and permanently disabled from the performance of her regularly
assigned duties.
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Petitioner appealed the denial of accidental disability
benefits. The Board affirmed the ALJ. Petitioner appeals.
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
unreasonable, or that it lacks fair support in the record.'"
Russo, supra, 206 N.J. at 27 (citations 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) (citations omitted). "An
appellate court, however, is 'in no way bound by the agency's
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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.
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, supra, 194 N.J. at
43. A TPAF member is eligible to be retired "on an accidental
disability allowance" "if said 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. 18A:66-39(c).
It is undisputed that petitioner is permanently and totally
disabled and that the three incidents occurred during and as a
result of the performance of her regular, assigned duties. The
parties dispute whether her disability was "a direct result of a
traumatic event." Ibid.A.
"[T]he question of what constitutes a 'traumatic event'
. . . has dogged courts for generations." Russo, supra, 206
N.J. at 28. Recently, our Supreme Court has redefined and
8 A-5028-14T1
applied that phrase in three cases: Richardson, Patterson, and
Russo.
In Richardson, supra, an inmate knocked a corrections
officer to the ground, causing a complete tear of his wrist
ligament which left him physically disabled. 192 N.J. at 192,
214. The Court ruled his physical disability was the direct
result of a traumatic event. Id. at 214-15.1 The Court held
"the traumatic event standard will . . . be met by a work-
connected 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)." Id. at 192.
In Patterson, supra, the Court addressed "whether an
applicant who has suffered a permanent mental disability as a
result of a mental stressor, without any physical impact, can be
considered to have experienced a 'traumatic event' and, if so,
what standard should apply in assessing such a claim." 194 N.J.
at 33. The Court held "a member must satisfy the standards in
Richardson," and "add[ed] a requirement beyond those set forth
1 The Court was considering an accidental disability statute,
N.J.S.A. 43:16A-7(1), under the Police and Firemen's Retirement
System (PFRS), but noted that the TPAF in N.J.S.A. 18A:66-39
"conditions the grant of accidental disability benefits on
satisfying identical standards." Richardson, supra, 192 N.J. at192 n.1.
9 A-5028-14T1
in Richardson: [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." Id. at 33-34, 50.
The Court in Patterson applied that requirement to three
members who were permanently mentally disabled. First, Trooper
Patterson was repeatedly insulted by an angry sergeant, and "was
fearful that if he did not submit, the sergeant would hit him."
Id. at 34-35. The Court ruled the conduct "simply did not
involve actual or threatened death or serious injury to
Patterson's physical integrity and thus failed to vault the
traumatic event threshold." Id. at 51. Second, the Court found
another trooper's exposure "to numerous incidents of racially
motivated abuse carried out by fellow officers" was inadequate,
but remanded to consider whether officers' death threats to the
trooper "qualif[ied] as a traumatic event." Id. at 36-37, 51-
52. Third, the Court found a "credible threat of rape and
murder against [a correction officer]'s wife and daughter by a
presumed gang member who knew where [he] lived and worked could
satisfy the traumatic event element of the statute." Id. at 38-
40, 53.
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In Russo, supra, the Court "revisit[ed]" Richardson and
Patterson. 206 N.J. at 17. Police Officer Russo "was involved
in a terrifying fire rescue in which he was injured and the
victim died." Id. at 18. Specifically, Russo tried to reach
the victim who was crying out for help, but Russo became
disoriented, dizzy, and nauseous. Id. at 19.
Russo testified that the fire produced heavy
smoke and incredibly intense heat: "The heat
was all over. It felt like my ears were
going to come right off my head, they felt
like they were melting. It hurt to breathe,
I could feel it everywhere. . . . [It]
became increasingly harder to breathe, the
heat and the smoke just kept getting worse.
. . . [I] couldn't breathe."
[Id. at 21-22.]
Russo was rescued by firefighters, received first aid, and was
hospitalized overnight for smoke inhalation. Id. at 19-20.
While still at the fire scene, Officer Russo saw the
victim's body brought out, and the victim's family "confronted
Russo, blaming him and the other officers for the victim's
death." Id. at 20. Russo was unable to return to work for
weeks, was diagnosed with PTSD, and was "permanently mentally
disabled." Id. at 20, 34-35. The PFRS Board found Russo
"satisfied Richardson and experienced a Patterson-type horrific
event." However, the PFRS Board ruled the event was "'not
objectively capable of causing a reasonable person in similar
11 A-5028-14T1
circumstances to suffer a disabling mental injury.'" Id. at 18(citation omitted).
Even though Officer Russo was physically injured, the Court
applied the Patterson requirement. Id. at 33. The Court found
Russo met "the objective reasonableness standard of Patterson."
Ibid. Thus, the Court reversed. Id. at 35.
B.
Petitioner argues she need only meet the Richardson
standard for disability, not the Patterson requirement for
mental disability. We agree with the ALJ and the TPAF Board
that under Russo, petitioner must meet both the Richardson and
Patterson standards.
Unlike Richardson, where the officer suffered a disabling
physical injury, petitioner did not suffer a physical
disability. Indeed, the ALJ found "petitioner was not
physically injured" in any of these incidents. In the first
incident, the adolescent girl's punch and slap resulted in just
"a little bit of a stomachache." Even if it was a physical
injury, it was minor and lasted only a few minutes. In the
second incident, the adolescent boy "kind of" pushed and shoved
her shoulders with his hands. In the third incident, another
adolescent boy held petitioner's hands behind her back for a few
seconds. She concededly was not physically injured in the
12 A-5028-14T1
second or third incident and did not seek or need medical
treatment in any of the incidents.
Such minor physical contacts with little or no physical
injury, only the punch's minor and temporary effects, would not
themselves meet the Richardson standard for a disabling injury.
Under Richardson, "an applicant for accidental disability
benefits must meet 'an extraordinarily high threshold that culls
out all minor injuries; all major injuries that have fully
resolved; all partial or temporary disabilities; and all cases
in which a member can continue to work in some other capacity.'"
Patterson, supra, 194 N.J. at 43 (quoting Richardson, supra, 192
N.J. at 195).
Here, as the ALJ found, petitioner's "application is solely
based on mental diagnoses." Thus, she must rely on her
"permanent mental disability as a result of a mental stressor,"
rather than the minor, temporary physical effects. Id. at 33.
Therefore, she was required to meet the Patterson requirement.
Petitioner contends she need not meet the Patterson
requirement because there was physical contact. She cites
language in Patterson favoring her position. In Patterson, the
Court stated it "ha[s] been asked to determine whether an
applicant who has suffered a permanent mental disability as a
result of a mental stressor, without any physical impact, can be
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considered to have experienced a 'traumatic event.'" Ibid.
"The only issue is whether [a permanent mental] injury will be
recognized as a basis for accidental disability if it is caused
by an exclusively psychological trauma." Id. at 44-45; see id.
at 43. The Court held "permanent mental injury caused by a
mental stressor without any physical impact can satisfy the
Richardson standard." Id. at 48. The Court first ruled "a
member suffering from a so-called mental-mental injury must
satisfy the standards we recently enunciated in Richardson."
Id. at 33-34.2 The Court added "to obtain accidental disability
benefits for a mental injury precipitated by an exclusively
mental stressor, a member must satisfy" the Patterson
requirement. Id. at 34, 50.
However, in Patterson it was not clear the Court was
restricting its new requirement to such situations, rather than
simply referring to the issue before it — three members whose
mental disabilities were caused exclusively by mental stressors.
Moreover, the Court applied the requirement to mental disability
2 The Court noted "[t]he accidental disability statutes
themselves do not expressly include the mental-mental category,"
but that workers' compensation cases recognized "the so-called
mental-mental category of compensable injury." Patterson,
supra, 194 N.J. at 45-47 (quoting Brunell v. Wildwood Crest
Police Dep't, 176 N.J. 225, 243 (2003) (defining mental-mental
as "cases in which a purely mental stimulus results in emotional
or nervous injury")).
14 A-5028-14T1
"without any physical impact," a term encompassing situations
where there was no physical injury or only minor or temporary
physical injury. Id. at 33, 48.
In any event, the Court's decision in Russo made clear the
Patterson requirement applies to members whose mental disability
resulted from mental stressors accompanied by temporary physical
injury. As set forth above, the Court found Officer Russo was
physically injured by the fire's heat and smoke, which caused
him pain and breathing difficulties. Russo, supra, 206 N.J. at
18-22. The Court emphasized "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," and, "in
fact, he was hospitalized for smoke inhalation" overnight. Id.
at 33-34. The Court viewed Russo's mental disability as
deriving in part from physical stressors and physical injury.3
Nonetheless, the Supreme Court required the physically-
injured Russo to meet the Patterson requirement. Id. at 18, 33-
35. The Court ruled "the objective reasonableness standard of
3 The Court rejected the suggestion that Russo's mental
disability "did not directly result from the horrific fire
incident, but from 'guilt feelings' over the victim's death."
Russo, supra, 206 N.J. at 34. Rather, the Court found "[i]t was
as a result of the fire and the confluence of events it
generated, including the death of the victim and the relatives'
accusations, that Russo was rendered permanently mentally
disabled." Id. at 34-35.
15 A-5028-14T1
Patterson has been met" both because of the threat of death and
serious bodily injury to Russo himself and because "Russo
clearly satisfied the other Patterson standard . . . [as] he
experienced a terrifying event that presented 'a serious threat
to the physical integrity of another person,'" namely the fire's
threat to the victim. Id. at 33-34. Thus, the Court found that
"Russo sustained his burden," that the incident "objectively
satisfied Patterson," and that Russo's "circumstances plainly
satisfied both Patterson and Richardson." Id. at 34-35.
Indeed, the Court in Russo would have had no need to engage
in the above analysis if it believed the Patterson requirement
only applied to members whose mental disability resulted solely
from mental stressors unaccompanied by physical injury. The
Court could have simply stated Patterson did not apply to Russo
because of his temporary physical injuries. Instead, the Court
explained at length both the nature of the Patterson requirement
and how Russo carried his burden under the Patterson
requirement. Id. at 18-19, 31-35.
Moreover, the Court in Russo reiterated and emphasized the
necessity of applying the Patterson requirement to members like
Russo (and petitioner) who claim mental disability. The Court
stated: "We adopted that standard to assure the bona fides of
claimed mental injuries and to ameliorate the problem of
16 A-5028-14T1
subjectivity inherent in mental claims." Id. at 31 (citing
Patterson, supra, 194 N.J. at 50).
"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." 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.
[Ibid. (quoting Patterson, supra, 194 N.J.
at 48-49 (citation omitted)).]
"In response, [the Court] established a high threshold for
the award of accidental disability benefits" in Patterson.
Ibid. "Satisfying Patterson eliminates the problem of
'idiosyncratic responses by members to inconsequential mental
stressors.'" Id. at 32 (quoting Patterson, supra, 194 N.J. at
49).
Thus, the Supreme Court assigned an important role to the
Patterson requirement – to prevent idiosyncratic and subjective
claims of mental disability from crossing the high threshold for
the award of accidental disability benefits. The important and
necessary purpose of the Patterson requirement is served by its
17 A-5028-14T1
application as in Russo to claims based on mental disability due
to mental stressors even if accompanied by minor or temporary
physical injuries.
Here, for example, there were no clinical or laboratory
tests of petitioner's minor and temporary physical complaint.
Rather, her subjective statements provided the sole basis for
the description of her mental disability and the factual basis
for her psychiatrist's testimony. Id. at 31. That made the
traumatic nature of the incidents and the causal relationship
between the incidents and her claimed injury more problematic.
Ibid. Applying the Patterson requirement to petitioner and
similar claimants for mental disability properly weeds out
"idiosyncratic responses" and "limit[s] accidental disability
recovery to stressors sufficient to inflict a disabling injury
when experienced by a reasonable person in similar
circumstances." Patterson, supra, 194 N.J. at 49-50; accord
Russo, supra, 206 N.J. at 32.
As the Court recognized in Patterson, supra, "a traumatic
event giving rise to a mental disability, like PTSD, may . . .
involve physical impact." 194 N.J. at 45. In Russo, supra, the
Court decided such claims of mental disability had to satisfy
the Patterson requirement. To rule otherwise would allow such
mental disability claims to escape the objective test the Court
18 A-5028-14T1
required to avoid "the problem of subjectivity" and
"idiosyncratic responses." 206 N.J. at 31-32 (quoting
Patterson, supra, 194 N.J. at 49, 50).
Accordingly, under our Supreme Court's decision in Russo,
petitioner must satisfy the Patterson requirement. However, she
argues she is not required to do so under the Appellate Division
decision in Caminiti. However, Caminiti, supra, failed to
recognize the effect of Russo's application of the Patterson
requirement to a member suffering both temporary physical injury
and disabling mental injury. 431 N.J. Super. at 4. Instead,
Caminiti stated "[t]he Patterson standard is inapplicable where
a petitioner suffers both a physical and psychiatric injury,"
and "[t]he Board's analysis should have ended with an
application of the Richardson factors." Id. at 14, 21.
Those statements in Caminiti contravene our Supreme Court's
decision in Russo, supra, that the Patterson requirement was
applicable to Russo, who suffered both a physical and
psychiatric injury. 206 N.J. at 34.
In any event, petitioner's case is clearly distinguishable
from Caminiti, where the member's physical injury created a risk
of death and required traumatic treatment. Officer Caminiti was
subduing a violent intravenous drug user when a needle in the
user's shirt pierced the officer's finger "from the bottom
19 A-5028-14T1
through to the nail." Caminiti, supra, 431 N.J. Super. at 7.
The user, who had track marks all over his arms, said: "I'm
sorry. I just used it." Id. at 8. Caminiti was immediately
afraid he was fatally infected with the AIDS virus. Ibid.
Other officers tried to squeeze the blood out of Caminiti's
finger and ordered him to go to the hospital. Ibid. There,
doctors forbade him from having any sexual relations with his
wife or letting his saliva contact his children for six months.
Ibid. The doctors were unable to determine if Caminiti was
infected, and prescribed "'the AIDS cocktail,'" telling him it
"'could possibly prevent [him] from contracting AIDS,'" but
"would make him 'deathly ill.'" Id. at 8, 9. While taking the
AIDS cocktail,
[h]e was constantly vomiting and became
dehydrated. Eventually he obtained a
prescription for a drug given to cancer
patients to counteract the effects of
chemotherapy and lessen the nausea. The
medication also made him "jittery" and
unable to concentrate. The doctor's warning
concerning the physical effects of the
medications did not prepare him for the
emotional and psychological trauma he
experienced.
[Id. at 9.]
Caminiti became "mentally incapacitated." Id. at 22.
In ordering accidental disability benefits for Caminiti, we
stressed that, "[i]n addition to the physical impact of the
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potentially lethal needle prick, appellant endured many weeks of
physical discomfort associated with the medications prescribed
to prevent the transmission of HIV." Id. at 21. "The treatment
created specific, medically anticipated, and extremely harsh
effects on his body that were similar to the effects experienced
by cancer patients who undergo chemotherapy after surgery."
Ibid.
We emphasized "[t]his was not an officer who accidentally
stuck himself on a straight pin while frisking a suspect's
clothes and was treated with a band-aid or experienced a minor
infection at the site." Ibid.
To the contrary, the medical effect of the
event was comparable to the experience of
surgical intervention or extended
hospitalization. It triggered serious bouts
of pharmacological intervention and a
prolonged period of physical discomfort and
recovery. Simply stated, the record does
not support the Board's finding that
appellant's physical injury was "minor."
[Ibid.]
Unlike Caminiti, petitioner suffered little or no physical
injury and required no medical treatment, hospitalization, or
medication. The physical effect of the "little bit of a
stomachache" was temporary and minor and no greater than a pin
wound requiring a band-aid and resulting in minor infection,
which Caminiti was careful to distinguish. Her physical effect
21 A-5028-14T1
could not compare with Caminiti's potentially fatal injury and
hellish treatment. Even if Caminiti's physical injury and
treatment was sufficient to justify not applying the Patterson
requirement, petitioner experienced neither physical injury nor
treatment, and had to meet the Patterson requirement.
Accordingly, petitioner had to show her mental disability
"result[ed] 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." Russo, supra, 206
N.J. at 18 (quoting Patterson, supra, 194 N.J. at 34).
C.
We agree with the ALJ and the TPAF Board that petitioner
failed to meet the Patterson requirement. Petitioner's three
separate incidents involved an adolescent girl punching her and
slapping her face; an adolescent boy "kind of" pushing and
shoving her shoulders with his hands and spitting on the floor;
and an adolescent boy placing her hands behind her back for a
few seconds, then swinging and missing. In the first incident,
petitioner experienced only "a little bit of a stomachache,"
which the ALJ found was not a physical injury and which in any
event was minor and temporary. Petitioner admittedly was not
physically injured in the second or third incidents. She
22 A-5028-14T1
neither needed nor sought medical treatment after any of the
incidents. In each incident, petitioner was accompanied by
teacher's aides who quickly assisted petitioner in removing the
student. Considering the totality of the circumstances, we
agree with the ALJ and the Board that these three incidents,
whether considered individually or collectively, failed to meet
the Patterson requirement.
Petitioner contends the incidents were terrifying and
horror-inducing for her. However, her subjective views do not
satisfy "the objective reasonableness standard of Patterson."
Id. at 33. None of the incidents here were "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 50 (emphasis added). The Court "impose[d] the
aforementioned limitations to assure objectivity in the
analysis." Ibid.Regarding the third incident, petitioner's psychiatrist
opined that, while her arms were behind her back, it was a
"potentially life threatening situation" because she "could have
been seriously injured" or "killed in that position." However,
her arms were no longer behind her back when the swings
occurred, and she was able to dodge them. Moreover, the
23 A-5028-14T1
psychiatrist conceded he did not even know the adolescent's age,
let alone strength. Thus, "the facts of record" do not show
that this third incident was life threatening, unlike the
burning building in Russo. Cf. Russo, supra, 206 N.J. at 33.4
Moreover, the ALJ and the Board did not find that the third
incident involved threatened death or serious injury.
Petitioner notes she was diagnosed with PTSD. However, the
diagnostic criteria for PTSD are not identical to the Patterson
requirement. In particular, our Supreme Court requires the
member show the incident involved "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 50 (emphasis added); cf. id. at 49 (setting forth
the DSM-IV-TR diagnostic criteria, which omit the emphasized
words). Here, the incidents did not involve threatened death or
serious injury or a similarly serious threat to petitioner's
physical integrity.
More importantly, the Supreme Court in Patterson and Russo
did not hold that any employee who obtains a PTSD diagnosis
qualifies for accidental disability benefits. In Patterson, the
4 The dissent adds "that had one or more of the three swings [by
the fifteen-year-old] landed on petitioner's head, petitioner
could have suffered traumatic brain injury, fractures, or
sensory damage." Post at __ (slip op. at 7). However, there
was no such evidence before the ALJ.
24 A-5028-14T1
Court did not equate a diagnosis of PTSD with the Patterson
requirement; rather, it simply used the history and criteria of
PTSD as a "backdrop" showing there could be "a causal
relationship between certain delineated traumatic events and a
resultant mental disorder." Id. at 40-42, 49. In Russo, supra,Russo was diagnosed with PTSD. 206 N.J. at 20-21. Rather than
treating that diagnosis as decisive, the Court did not even
mention Russo's PTSD diagnosis in its analysis of why he met the
Patterson requirement. Id. at 33-35.
In any event, it is the Board, not a member's psychiatrist,
which determines whether the incident meets "Patterson's
objective reasonableness standard." Id. at 33. The ALJ and the
TPAF Board did not adopt the conclusion of petitioner's
psychiatrist that "any of the assaults that [she] suffered would
cause a reasonable person in her circumstances [to] suffer a
disabling injury." Further, the psychiatrist's hypothesizing
about what a reasonable person would do cannot change whether or
not "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.'" See id. at 25-27, 31-33 (quoting Patterson, supra,194 N.J. at 50).
25 A-5028-14T1
The failure of petitioner's incidents to meet that standard
is illustrated by the Supreme Court's dispositions of the three
appeals in Patterson. Petitioner feared being hit by an angry
adolescent, but the Court held Patterson's fear of being hit by
an angry police sergeant "simply did not involve actual or
threatened death or serious injury to Patterson's physical
integrity and thus failed to vault the traumatic event
threshold." Patterson, supra, 194 N.J. at 51. The adolescent
threatened to "kick [her] ass," but that pales by comparison to
the death threats and the gang member's threats to rape and
murder considered in Patterson. Id. at 52-53.
Petitioner's incidents also bore no resemblance to the
traumatic events the Supreme Court in Russo found satisfied the
Patterson requirement. The Court stressed that Russo, "was
ordered into a burning building," where "[t]he intensity of the
fire terrified and disoriented Russo, singed his uniform, and
sent him to the hospital overnight for smoke inhalation," which
the Court viewed as a life-threatening situation. Russo, supra,
206 N.J. at 33-34. Moreover, the fire also 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
26 A-5028-14T1
fire," after which "the victim's family heaped scorn on Russo
and blamed him for their relative's death." Id. at 34.
Nor did petitioner's incidents resemble the traumatic
experiences involved in the only other published case applying
the Patterson requirement. See Hayes v. Bd. of Trs. of Police &
Firemen's Ret. Sys., 421 N.J. Super. 43 (App. Div. 2011). In
1998, after Officer Hayes and other officers tried to stop a
stolen car, it "'ran over' one of the responding officers," and
police "responded with gunfire, severely injuring the unarmed
teenage driver and killing his fifteen-year-old female
passenger" in a highly-publicized, controversial shooting. Id.
at 47. In a 2001 incident, while shots were being fired, Hayes
rescued a wounded officer whom she discovered "was her younger
brother, who had been shot in the face and neck. [Hayes]
cradled her brother in her arms, certain he was going to die, as
he lay on the ground bleeding profusely." Ibid. Subsequently,
Hayes "learned [that] a 'hit' had been put out on her by a
Trenton gang," and that "the driver of the vehicle involved in
the 1998 shooting had been released from prison" and might come
for her. Id. at 48.
Further, petitioner's incidents do not rise to the level of
the examples given in Patterson, supra: "Under that standard a
permanently mentally disabled policeman who sees his partner
27 A-5028-14T1
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." 194 N.J. at 50.
Petitioner was not held hostage by a student. Rather, in a
classroom containing several teacher's aides, a student had
petitioner's hands behind her back for a few seconds until he
let go and was removed from the room by the teacher's aides. As
the ALJ found, the incidents, "although undoubtedly distressing,
did not constitute a terrifying or horror-inducing event in line
with the examples given by the Patterson Court."
We do not question the mentally-disabling reaction
petitioner had to these incidents. However, Patterson imposed
an "objective standard[]" based on the "the character of an
event rather than" the reaction of an individual claimant.
Ibid. By adding the Patterson requirement, our Supreme Court
"achieve[d] 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." Russo, supra, 206 N.J. at 18 (quoting
Patterson, supra, 194 N.J. at 34). "Satisfying Patterson
eliminates the problem of 'idiosyncratic responses by members to
28 A-5028-14T1
inconsequential mental stressors[.]'" Id. at 32 (quoting
Patterson, supra, 194 N.J. at 49).
Here, the ALJ found petitioner's mental disability in
response to these incidents was "the very definition of an
idiosyncratic response." The Board affirmed. We cannot say
that finding was arbitrary, capricious, or unreasonable. While
petitioner's idiosyncratic response entitled her to ordinary
disability benefits, it failed to satisfy the Patterson
requirement for accidental disability benefits.
Before we conclude discussion of the Patterson standard, we
address three arguments not raised by petitioner but raised by
the dissent. First, the dissent asserts the ALJ replicated the
error in Russo. We disagree.
In Russo, the PFRS Board found Russo's "'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.'" Id. at 24; see id. at
25. Despite finding that Russo "experienced a Patterson-type
horrific event," the Board then found "the event was
'inconsequential' and 'not objectively capable of causing a
reasonable person in similar circumstances to suffer a disabling
29 A-5028-14T1
mental injury.'" Id. at 18; see id. at 24-25. Our Supreme
Court ruled:
[T]he [PFRS] Board went astray in [Russo's]
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.
[Id. at 33 (quoting Patterson, supra, 194
N.J. at 50).]
By contrast, the ALJ did not find a qualifying event and
then fail to recognize the dispositive nature of that finding.
Rather, the ALJ found no qualifying event had occurred. The ALJ
began by recognizing 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.'" (quoting Patterson, supra,
194 N.J. at 34). The ALJ cited the examples of qualifying
events cited in Patterson, supra, 194 N.J. at 48-50,5 and ruled:
5 The dissent criticizes the ALJ for referencing what the Supreme
Court in Patterson called the "relevant statutory incidents
under N.J.S.A. 40A:14-196." Patterson, supra, 194 N.J. at 49.
However, the ALJ simply noted: "Although these examples are law-
enforcement specific, the Patterson Court used them to suggest
the quality of traumatic event that might be expected to result
(continued)
30 A-5028-14T1
"I CONCLUDE that [petitioner] does not meet the additional
requirements . . . enunciated in Patterson" because "[t]he
circumstances of the three incidents experienced by the
petitioner, although undoubtedly distressing, did not constitute
a terrifying or horror-inducing event in line with the examples
given by the Patterson Court."
Only then did the ALJ add: "In other words, the stressors
were not sufficient to inflict a disabling injury when
experienced by a reasonable person in similar circumstances."
That echoed the Supreme Court's own language: "Put another way,
by our enunciation [of the Patterson requirement], we limit
accidental disability recovery to stressors sufficient to
inflict a disabling injury when experienced by a reasonable
person in similar circumstances." Id. at 50.
The ALJ reiterated: "I cannot conclude that petitioner here
experienced a terrifying or horror-inducing event or events that
would have caused a reasonable person in similar circumstances
to suffer a disabling mental injury." That resembled the
Court's statement in Patterson: "a qualifying horrific event
(continued)
in mental injury under the various public-sector pension plans."
The ALJ's comment reflected the Supreme Court's assessment of
N.J.S.A. 40A:14-196: "To be sure, [its] categories are law-
enforcement specific," but it "sheds light on the meaning of the
term 'traumatic event' in the accidental disability statutes."
Id. at 45, 49.
31 A-5028-14T1
must be objectively capable of causing a reasonable person in
similar circumstances to suffer a disabling mental injury." Id.
at 34.
The ALJ briefly posited that "[a] reasonable teacher might
have found the incident upsetting or disturbing [at] being
pushed and shoved, or grabbed." The ALJ then continued
examining the nature of the incidents: "The petitioner was not
physically injured and there were no weapons brandished at or
near her or even involved in these incidents. The physical
trauma that petitioner described was minimal[.]" The ALJ
properly distinguished petitioner's case from the "hostage"
example given by the Supreme Court. See Russo, supra, 206 N.J.
at 31 (quoting Patterson, supra, 194 N.J. at 50).6 The ALJ's
brief discussion of the reasonable teacher, while unnecessary,
was not "clearly capable of producing an unjust result" given
her proper application of the correct standard. R. 2:10-2.
Second, the dissent asserts petitioner met the Patterson
requirement due to her lack of training in dealing with
physically disruptive students, and cites Russo. We note that
the Supreme Court mentioned the PFRS "Board should have
6 The dissent asserts the ALJ minimized the third incident by
saying the adolescent "grabbed" petitioner's arms. However, the
ALJ also stated the adolescent "yanked them behind her back."
Moreover, petitioner testified only that the adolescent "had my
hands behind my back."
32 A-5028-14T1
recognized that Russo experienced a qualifying event" in part
because "he had no training or equipment for such an event."
Id. at 33. However, the Supreme Court in Russo primarily
addressed the role of training under "Richardson's 'undesigned
and unexpected' standard," finding that Russo met that
Richardson standard due to his lack of firefighting training.
Id. at 33-35.7
Even assuming an employee's training can be considered in
determining if an incident meets "the objective reasonableness
standard of Patterson," petitioner's lack of training does not
convert any of the three incidents into a "terrifying or horror-
inducing event that involve[d] actual or threatened death or
serious injury, or a similarly serious threat to the physical
integrity of the member or another person." Id. at 33 (quoting
Patterson, supra, 194 N.J. at 50).
Third, the dissent asserts the Board's determination is far
afield from the historical requirements established several
decades ago by the Legislature for accidental disability
benefits. However, it was not until 2008 that the Supreme Court
in Patterson, supra, held that "an applicant who has suffered a
7 As set forth below, we find petitioner's lack of training
helped her meet that Richardson standard. We need not address
our dissenting colleague's additional comments regarding that
standard.
33 A-5028-14T1
permanent mental disability as a result of a mental stressor,
without any physical impact," could qualify for an accidental
disability retirement. 194 N.J. at 33. The Court recognized it
was necessary to add "a new test" in order "to assure the bona
fides of claimed mental injuries[,] to ameliorate the problem of
subjectivity inherent in mental claims," and to "eliminate[] the
problem of 'idiosyncratic responses.'" Russo, supra, 206 N.J.
at 31-32 (quoting Patterson, supra, 194 N.J. at 49). The Court
thus "established a high threshold for the award of accidental
disability benefits" based on claims of mental disability. Id.
at 31.
Finally, it is crucial to remember that we are neither the
factfinder nor the administrative agency charged with making the
determination whether the threshold has been met. Absent a
misinterpretation of the statute or case law, an appellate
court's "review of administrative agency action is limited," and
the Board's "'decision will be sustained unless there is a clear
showing that it is arbitrary, capricious, or unreasonable, or
that it lacks fair support in the record.'" Id. at 27 (citation
omitted). Petitioner failed to make the requisite clear
showing.
34 A-5028-14T1
IV.
As the Supreme Court stated in Russo, "Patterson is the
threshold that must be met for further inquiry to be warranted."
Id. at 32. Nonetheless, we also consider petitioner's claim
that these incidents were not "undesigned and unexpected" under
Richardson, supra, 192 N.J. at 212. The ALJ and the Board found
the incidents were not undesigned or unexpected because a high
school health and physical education teacher should expect to
experience such incidents.
However, in Richardson, our Supreme Court rejected the
similar argument "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." Id. at 213. "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.'" Ibid. The Court noted that under prior statutes the
courts long "defined 'accident' in accordance with its ordinary
meaning — as 'an unlooked for mishap or untoward event which is
not expected or designed.'" Id. at 197 (citations omitted).
The Court ruled that under the current statutes "a traumatic
event is essentially the same as what we historically understood
an accident to be — an unexpected external happening that
35 A-5028-14T1
directly causes injury and is not the result of pre-existing
disease alone or in combination with work effort." Id. at 212;
see id. at 214.
Richardson gave examples of physically traumatic events,
occurring during ordinary work effort, which were "undesigned
and unexpected": "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." Id. at 214.
Similarly, a "gym teacher who trips over a riser and is injured
has satisfied the standard." Id. at 213.
The Board cites the job description, which states a health
and physical education teacher "[e]stablishes and maintains
standards of pupil behavior needed to provide an orderly,
productive learning environment." However, there was no
evidence it was a designed and expected part of petitioner's job
that she be punched, slapped, pushed, shoved, restrained, or
threatened with physical harm by students. Thus, the incidents
were undesigned and unexpected under the Richardson test.8
8 Richardson, supra, rejected a prior test requiring the member
to show "his injuries were not induced by the stress or strain
of the normal work effort." 192 N.J. at 192. Even under that
test, we observed:
(continued)
36 A-5028-14T1
The ALJ concluded the assaults were not undesigned and
unexpected on the premise that "[i]t is not unusual for [special
education] students to become distressed and upset in class or
to act out with others. The petitioner should have anticipated
that such conduct could or would occur in a physical education
class of adolescents." However, no evidence was introduced to
support that premise. In any event, "an accident can be
'undesigned and unexpected' under the Richardson tests even
though it may be concluded in retrospect that the employee could
have anticipated the risk of such an accident and taken steps to
(continued)
having to break up fistfights among students
in a school corridor and then suffering the
physical or emotional sequelae thereof are
[not] part of the "stress or strain of the
normal work effort" of a teacher. It may be
part of the stress or strain of the normal
work effort of a policeman or a security
guard, but we do not regard the hazards of
combat as part of the normal stress of
public school educators.
[Pushko v. Bd. of Trs. of Teachers' Pension
& Annuity Fund, 208 N.J. Super. 141, 145
(App. Div. 1986).]
Moreover, under that test our Supreme Court found that while
corrections officers must subdue inmates, "it is not part of the
stress or strain of the 'normal' work effort of a corrections
officer to be violently assaulted by an inmate. Corrections
officers are not hired to be punching bags." Gable v. Bd. of
Trs. of Pub. Emps. Ret. Sys., 115 N.J. 212, 224 (1989). Though
these cases under the prior test are not dispositive, they are
instructive.
37 A-5028-14T1
avoid it." Brooks v. Bd. of Trs., Pub. Emp. Ret. Sys., 425 N.J.
Super. 277, 284 (App. Div. 2012) (finding undesigned and
unexpected a school custodian's injury when the students helping
him carry a 300-pound weight bench dropped their side of the
weight bench).
The Supreme Court added in Russo that a member's training
must be considered:
[A]n 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.
[Russo, supra, 206 N.J. at 33.]
In Russo, Russo's role in the house fire was "undesigned
and unexpected" because he "was trained and equipped as a police
officer, not as a firefighter." Id. at 24, 34. We have since
held, because an engine company firefighter was trained to
deploy hoses, and his "training had not prepared him to break
into burning buildings without the battering rams and other
specialized equipment used by the truck company," an incident
where he had to kick in a door to rescue victims trapped inside
38 A-5028-14T1
a burning building was undesigned and unexpected. Moran v. Bd.
of Trs., Police & Firemen's Ret. Sys., 438 N.J. Super. 346, 355
(App. Div. 2014).
Being assaulted was not part of petitioner's job
description or training. She had a certification allowing her
to teach adaptive special physical education, but there was no
evidence she received training about handling violence from
special needs students. After the first incident, she requested
training on how to restrain students, but her request was
denied.
Therefore, the Board erred in concluding the incidents were
not undesigned and unexpected. However, because petitioner
failed to meet the Patterson requirement, the Board properly
rejected her claim for accidental disability benefits.9
Affirmed.
9 Thus, we need not resolve whether petitioner was disabled as "a
direct result of" the incidents, as required by Richardson,
supra, 192 N.J. at 212.
39 A-5028-14T1
________________________________________
OSTRER, J.A.D., dissenting.
I concur with, and join in, my colleagues' determination
that the Patterson objective reasonableness test applies to this
case, in which petitioner suffered both mental injury and minor
physical injury. I part company with my colleagues because I
believe petitioner met that test, and the Board erred in
reaching the opposite conclusion. Thus, I dissent from Part
III-C of the majority opinion.
Since the Board adopted the ALJ's decision, I look to the
ALJ's reasoning to explain the Board's result here. That
reasoning included multiple reversible errors.
1.
Contrary to Russo, the ALJ required petitioner to satisfy
more than the Patterson standard by evaluating whether
petitioner's response to the assault against her was reasonable
for similarly situated teachers. Then, applying the wrong
standard, the ALJ found that petitioner failed in that showing
without adequate support in the record.
The purpose of the Patterson objective test was to allay
concerns regarding the subjectivity of psychological "proofs
related to the traumatic nature of an event and the causal
relationship between event and [mental] injury." Patterson,
supra, 194 N.J. at 48. The Court achieved this by focusing its
legal standard on the underlying event. The Patterson test is
satisfied upon a showing that the petitioner experienced 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." Id. at 50. The Court in Patterson noted that by
applying its definition of a qualifying incident, the Court
"assure[d] that the traumatic event is objectively capable of
causing a permanent, disabling mental injury to a reasonable
person under similar circumstances." Ibid.Accordingly, the "terrifying and horror-inducing event"
standard already incorporates the concern that the injury is
caused by an event that is "objectively capable of causing a
reasonable person in similar circumstances to suffer a disabling
mental injury." Id. at 34. As the Court in Russo highlighted,
"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 . . . ." See Russo, supra, 206 N.J. at 33 (quoting
Patterson, supra, 194 N.J. at 50) (noting that the Board "went
2 A-5028-14T1
astray" in failing to recognize this concept). At that point, a
petitioner need only satisfy the Richardson factors to merit an
accidental disability pension. Ibid. The Board must not try to
determine separately, untethered from the Patterson definition
of a qualifying incident, whether an event was "inconsequential"
or "objectively capable of causing a reasonable person in
similar circumstances to suffer a disabling injury." Id. at 18.
Satisfying the definition of a qualifying incident is all that
is required.
As the PFRS Board did in Russo, the TPAF Board here "went
astray" by shifting its focus from the definition of a
qualifying event.1 In support of its finding that petitioner did
not experience a terrifying or horror-inducing event, the ALJ
relied on her independent views of how a "reasonable teacher"
might react:
In other words, the stressors were not
sufficient to inflict a disabling injury
when experienced by a reasonable person in
similar circumstances. I cannot conclude
that petitioner here experienced a
terrifying or horror-inducing event or
events that would have caused a reasonable
1 The majority finds a meaningful distinction between the present
case and Russo, insofar as the Board in Russo found that the
event was terrifying and horror-inducing, but still failed
Patterson. I am unpersuaded. In my view, the ALJ's error
mirrors the one the Court corrected in Russo. In both cases,
the pension board wrongly incorporated a reasonableness standard
into its Patterson analysis.
3 A-5028-14T1
person in similar circumstances to suffer a
disabling mental injury. A reasonable
teacher might have found the incident
upsetting or disturbing, but being pushed
and shoved, or being grabbed by a special
education student, would come within the
expected scope of incidents a high school
physical and health education teacher might
experience. And indeed, the history shows
that such incidents, while not occurring on
a daily basis, occur with sufficient
regularity in the classroom setting.
. . . . I CONCLUDE that the events
experienced by the petitioner, taken
objectively, would not cause a reasonable
teacher to become mentally debilitated.
However, as Russo instructs, the Board's task was to apply the
Patterson definition, and not formulate conclusions about how "a
reasonable teacher" might have reacted.2
2 The ALJ apparently misconstrues what I believe the Court means
by its reference to a "reasonable person." See Russo, supra,206 N.J. at 18-19, 24-27, 31-33. The Court is not referring to
the "reasonable person" as the hypothetical person who
"exercises the degree of attention, knowledge, intelligence, and
judgment that society requires of its members for the protection
of their own and of others' interests." Black's Law Dictionary
1380 (9th ed. 2009). In that sense, there is no indication that
a victim's "reasonableness" has anything to do with whether one
actually develops PTSD or whether other similarly situated
employees would react the same way. Instead, the Court uses
"reasonable person" to capture whether the person's reaction is
normal, and not idiosyncratic. This concept may be found
elsewhere in our law. See, e.g., N.J.S.A. 2C:12-10 (defining
criminal stalking in terms of what a "reasonable person" would
fear). A "reasonable person" was not intended to mean the
common, typical, or usual person. The fact that a small
fraction of employees may develop PTSD, and the overwhelming
majority may not, after being exposed to the same horrifying or
terrifying incident involving actual or threatened death or
(continued)
4 A-5028-14T1
Furthermore, the ALJ's conclusion about what a "reasonable
teacher" might have found terrifying or horrifying was unmoored
to the record. Particularly troubling was her conclusion that
the teacher's day-to-day routine should have, to some degree,
prepared her for the violent attack.
In this case, petitioner was not a special education
teacher, although she was permitted to teach "adaptive physical
education," which she described as a class of students with
disabilities. There was no evidence she had training or prior
experience in coping with assaultive, disabled students. The
school denied her request for training in dealing with
physically disruptive students. Thus, even applying an
(continued)
serious injury, does not make the minority of employees
"unreasonable." Even among veterans who faced the horrors of
war, the majority reportedly do not suffer PTSD, although the
number experiencing the disorder is significant. See Turner v.
Comm'r of Soc. Sec., 613 F.3d 1217, 1227 n.1 (9th Cir. 2010)
(citing study that found roughly thirty percent of Vietnam
veterans suffered PTSD at some point); see also American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders, 276 (5th ed. 2013) ("DSM-V") (stating that
"[t]he conditional probability of developing PTSD following a
similar level of exposure may . . . vary across cultural
groups"). The wisdom of the Court's approach in Patterson and
Russo was to rely on accepted psychiatric concepts to set the
norm for the "reasonable person."
5 A-5028-14T1
independent test of "reasonableness," albeit contrary to Russo,
the ALJ's finding lacks sufficient support in the record.3
3 The Court in Russo suggested that a petitioner's background and
training may be relevant in determining whether he or she
suffered a compensable mental disability triggered by a
terrifying or horror-inducing event. For example, the Court
evidently weighed the fact that Russo was a "newly minted police
officer," with no firefighting training, in concluding he was
terrified when he was thrust into a house ferociously aflame and
was unable to rescue a trapped resident. Russo, supra, 206 N.J.
at 34.
It may be true — although there is no supporting record
evidence — that training, background, and experience may
decrease a petitioner's sensitivity to certain events and,
accordingly, the likelihood that he or she will suffer PTSD when
exposed to them. But it strikes me that this is a poor proxy
for determining whether a qualifying event has occurred. Even
assuming a trained firefighter may not be terrified to enter a
flaming structure, the training may not shield the firefighter
from the terror of being overcome with smoke inhalation, hearing
the cries for help of a doomed resident, and absorbing the scorn
of the victim's family. I am not convinced that had a
firefighter been at Russo's side, experiencing everything Russo
experienced, and then also developed PTSD, the firefighter would
be ineligible for an accidental disability pension. The
employees who are most likely to repeatedly confront horrifying
or terrifying incidents as part of their jobs — such as
emergency medical personnel, firefighters, police officers and
armed forces members — face heightened risks of developing PTSD.
See DSM-V, supra, at 276 ("Rates of PTSD are higher among
veterans and others whose vocation increases the risk of
traumatic exposure (e.g., police, firefighters, emergency
medical personnel)."). The fact that horrifying traumatic
events may be more common in some occupations than others does
not necessarily make them less traumatic or horrifying.
Furthermore, the Richardson "unexpected and undesigned" test
does not necessarily erect a heightened hurdle for them to
obtain an accidental disability pension. Even if a kind of
event is not unexpected over the course of a particular worker's
career — e.g., an explosion in a bomb squad member's career or a
fatal shooting in a police officer's career — and even if a
(continued)
6 A-5028-14T1
2.
I would also reverse the Board's decision because of the
fundamental incongruity in the ALJ's holding that petitioner
suffered from PTSD, yet did not experience a terrifying and
horror-inducing event under the Patterson test. Since the
Patterson test quotes the DSM definition for PTSD, this finding
essentially contradicts itself.
In order to reach this odd result, the ALJ's discussion
regarding accidental disability minimized the nature of the
incident in this case. She did so, first, by downplaying key
facts. Second, she misconstrued the hypothetical examples of
traumatic events listed in the case law as defining the scope of
what constitutes a "terrifying or horror-inducing event."
The ALJ minimized the incident on her way to finding it
failed the Patterson test. The record demonstrates that in the
third and most terrifying incident, petitioner was not merely
"grabbed," as the ALJ states in her legal analysis and
conclusion. An angry student confronted her. With the strength
to do so, he "yanked" petitioner's arms behind her back, to
(continued)
worker's training is designed to enable the worker to confront
such event, the event may still be undesigned and unexpected
when it occurs.
7 A-5028-14T1
quote the ALJ's own statement of the case. The student
restrained petitioner's arms behind her back for what felt like
"forever," petitioner said, while he loudly threatened to "kick
her ass." Petitioner was petrified, terrified, and felt
helpless. Then the student let go of petitioner's hands so he
could take three swings at her face. That incident,
particularly on the heels of the prior physical assaults, was a
"terrifying . . . event." Both verbally and physically, the
student threatened serious injury. We do not need specific
testimony to conclude that had one or more of the three swings
landed on petitioner's head, petitioner could have suffered
traumatic brain injury, fractures, or sensory damage. See DSM-
V, supra, at 424 (including as examples of traumatic events that
may trigger PTSD "threatened or actual physical assault"
including "physical attack, . . . [and] mugging"). As a direct
result of this incident, in the wake of the two prior incidents,
petitioner developed PTSD.4
The ALJ also erred in attempting to fit petitioner's
experience into a procrustean bed of illustrative incidents
4 I recognize that the ALJ found only that the PTSD developed
"after" the incident, but did not expressly find that PTSD was a
"direct result" of the event. See Richardson, supra, 192 N.J.
at 212; N.J.S.A. 18A:66-39(c). However, I would exercise
original jurisdiction and find that it was, consistent with
testimony of petitioner and her expert, whom the ALJ credited.
8 A-5028-14T1
described in Patterson and Russo. In particular, the ALJ
assigned undue significance to the non-exclusive list of
incidents that may warrant crisis intervention services for law
enforcement officers under N.J.S.A. 40A:14-196.5 The Patterson
Court found this statute "instructive." Patterson, supra, 194
N.J. at 45. Although the list "reflect[s] the Legislature's
general acceptance of the view of the psychiatric community
regarding the quality of traumatic event that might be expected
to result in a mental injury," the Court recognized that the
list was "law-enforcement specific." Id. at 49. Thus, it
should not preclude different claims by non-law-enforcement
pension members. The Court stated, "[T]he gravamen of that
5 The statute defines such "critical incident[s]" to include:
the firing of a weapon or an exchange of gun
fire; serious bodily injury to or the death
of a juvenile; a terrorist act; a hostage
situation; serious bodily injury to or the
death of another law enforcement officer
employed in the same agency, when that
serious bodily injury or death occurred in
the performance of that officer's official
duties; a personal injury or wound; serious
bodily injury received in the performance of
the officer's official duties; and such
other incidents or events as the county
crisis intervention services advisory
council established pursuant to section 4
of P.L. 1998, c. 148 (C. 40A:14-198) shall
deem appropriate.
[N.J.S.A. 40A:14-196.]
9 A-5028-14T1
statute is that the Legislature has specifically recognized that
a traumatic event giving rise to a mental disability, like PTSD,
may, but need not, involve physical impact." Id. at 45. The
Court's examples evidently were intended to be illustrative, but
not limiting. To construe them any other way opens the door to
arbitrary or unpredictable applications of the test.
As a result of these errors, the ALJ denied accidental
disability while simultaneously finding that petitioner
manifested the symptoms of PTSD after the student's assault and
that she was "permanently and totally disabled" as "treatment
had not been effective in alleviating" those symptoms.
Petitioner's expert found she met the DSM criteria for PTSD.
Thus, implicit in the ALJ's finding was the conclusion that,
consistent with the DSM definition, petitioner suffered her
mental disorder because of exposure to a "terrifying or horror-
inducing event." As already noted, the DSM definition of PTSD
is the direct source of the Patterson test.6 Yet, the ALJ
incongruously found that petitioner had not confronted the
qualifying mental stressor as defined by Patterson. While I
agree with my colleagues that the Board — not a testifying
6 While the history of PTSD was the "back drop" of the Patterson
Court's analysis, the DSM criteria are more than that. Except
for the insertion of two words of no direct relevance to this
case — "similarly serious" — the DSM criteria are imported
verbatim into the Patterson test.
10 A-5028-14T1
expert — determines whether an employee meets the Patterson
test, ante at __ (slip op. at 25), the Board must rely on more
than its own ipse dixit, particularly when the fact-finder has
credited that psychiatric expert.
3.
In closing, I note how far afield the ALJ's reasoning,
approved by the Board and the majority, has taken us from the
fundamental purpose of an accidental disability pension, and the
legislated distinction between disabilities that qualify for an
ordinary disability pension and those that qualify for an
accidental disability pension.
As the Court noted in Patterson, "The main difference
between the two is that ordinary disability need not have a work
connection." Patterson, supra, 194 N.J. at 42; compare N.J.S.A.
18A:66-39(c) (providing access to accidental disability if the
applicant "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"), with
N.J.S.A. 18A:66-39(b) (requiring only a showing that the
applicant is "physically or mentally incapacitated for the
performance of duty and should be retired"). The ALJ found that
petitioner suffered PTSD, and was thus, in her words, "mentally
incapacitated from performing her usual or any other duty."
11 A-5028-14T1
Petitioner suffered that condition as a direct result of an
assault in the workplace. Yet, the ALJ denied her access to an
accidental disability pension, concluding instead that she was
entitled only to ordinary disability pension benefits.7
In doing so, the ALJ also thwarted the historical purpose
of accidental disability pensions: to provide an incentive to
workers to take on the risks of their work by providing them
with the peace of mind that a generous benefit would be
available without regard to a prerequisite term of service if
they become disabled by a work-related traumatic event. Cf.
N.J. Pension Survey Commission, Report No. 4 Recommendations for
the Sound Financing of Public Employee Pension Systems in New
Jersey 22-23, 30 (1932); compare N.J.S.A. 18A:66-41 (providing
TPAF ordinary disability pension and annuity equal to no less
than 43.6 percent of final compensation), with N.J.S.A. 18A:66-
42 (providing TPAF accidental disability pension and annuity of
72.7 percent of annual compensation); and compare N.J.S.A.
18A:66-39(b) (requiring ten years of service for ordinary
disability pension), with N.J.S.A. 18A:66-39(c) (imposing no
minimum years of service for accidental disability pension);
7 Notably, if petitioner had not accumulated ten years of
service, she would have been denied a disability pension
altogether. See N.J.S.A. 18A:66-39(b).
12 A-5028-14T1
Robert L. Clark et al., A History of Public Sector Pensions in
the United States (2003).
In sum, I would reverse the Board's decision and order the
award of an accidental disability pension. For that reason, I
respectfully dissent.
13 A-5028-14T1