ALEX ORTIZ VS. BOARD OF TRUSTEES, ETC. (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2754-19
ALEX ORTIZ,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
__________________________
Argued October 4, 2021 – Decided October 29, 2021
Before Judges Messano and Rose.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. x-xx-xx421.
Ronald J. Ricci argued the cause for appellant (Ricci &
Fava, LLC, attorneys; Ronald J. Ricci, of counsel and
on the briefs; Brooke Bagley, on the briefs).
Thomas R. Hower, Staff Attorney, argued the cause for
respondent (Robert S. Garrison, Jr., Director of Legal
Affairs, PFRSNJ, attorney; Robert S. Garrison, Jr., on
the brief).
PER CURIAM
Petitioner Alex Ortiz appeals from a February 10, 2020 final decision of
the Board of Trustees (Board) of the Police and Firemen's Retirement System
(PFRS), denying his application for accidental disability retirement (ADR)
benefits pursuant to N.J.S.A. 43:16A-7. We affirm.
I.
In October 2016, Ortiz applied for ADR benefits, claiming he suffered
from post-traumatic stress disorder (PTSD) as the result of a January 22, 2016
shooting incident, while performing his duties as an officer with the Passaic
Police Department (PPD). Ortiz reported that he responded to a dispatcher's call
of a carjacking by three males, "with a handgun taking a silver Ford." Upon
approaching the car, Ortiz "heard a gunshot" and saw Officer Robert Santana
"on the ground not moving, []or responding to [Ortiz]." The rear passenger
extended his arm and pointed a handgun at Ortiz, who fired "one round" at the
passenger.
The Board denied petitioner's application for ADR benefits, determining
"his disability [wa]s the result of a pre-existing disease alone or a pre-existing
disease that [wa]s aggravated or accelerated by the work effort." The Board also
found the incident was not "undesigned and unexpected." Further, the Board
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determined Ortiz's disability "did not result from direct personal experience of
a terrifying or horror-inducing event that involved actual or threatened death or
serious bodily injury" to Ortiz or someone else. The Board found no evidence
that the incident was "objectively capable of causing a reasonable person in
similar circumstances to suffer a disabling mental injury." Accordingly, the
Board denied Ortiz's application for ADR, but granted ordinary disability
retirement benefits. See N.J.S.A. 43:16A-6.
Thereafter, Ortiz filed an administrative appeal, and the matter was
transmitted to the Office of Administrative Law as a contested case. During the
two-day hearing, Ortiz testified on his own behalf, and the parties presented
competing expert testimony on Ortiz's PTSD claim. The ALJ also considered
documentary evidence, including Ortiz's application for ADR, his job
description, police reports, and the psychologists' evaluations.
Ortiz testified consistently with the facts set forth in his ADR application
and expounded upon his background. At the time of the incident, he was a
twelve-year veteran with the PPD. In the course of his employment, Ortiz
worked "various assignments, . . . including desk duty, prisoner transport, jailer,
traffic division, hospital division, and patrol." Ortiz acknowledged that all
assignments required officers to "carry[] a gun," otherwise they "would be
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considered unfit for duty." Throughout his career, Ortiz was "involved
physically" with suspects or inmates about "ninety percent" of the time. He
made arrests "[a]ll the time." Ortiz fired his weapon on one prior occasion; he
shot and killed a dog while serving a summons and complaint.
During the present incident, Ortiz heard a "pop" that sounded like a
gunshot; he later learned another officer had struck the stolen car's window with
his baton. But Ortiz had "no doubt" one of the suspects had pointed a "chrome
gun" at him. Another officer retrieved the suspect's gun. On cross-examination,
Ortiz acknowledged he was trained, when confronting deadly force, to discharge
his service weapon "to stop the threat . . . basically, to kill the individual."
The ALJ issued a written initial decision, concluding Ortiz was not
entitled to ADR benefits because the event was neither "objectively capable of
causing a reasonable person in similar circumstances to suffer a disabling mental
injury," nor "undesigned and unexpected." In reaching her decision, the ALJ
thoroughly summarized the testimony adduced at the hearing, made findings of
fact, and surveyed the applicable law. Citing our Supreme Court's decisions in
Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29(2008), and Richardson v. Board of Trustees, Police & Firemen's Retirement
System, 192 N.J. 189 (2007), the ALJ correctly recognized in this matter that
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Ortiz must first demonstrate he experienced a "traumatic event," see Patterson,
194 N.J. at 34, and then establish that the event was "undesigned and
unexpected," see Richardson, 192 N.J. at 212.
As to the first issue, the ALJ credited the testimony of both experts as
credible and competent, but the ALJ ultimately determined the Board's expert
was more believable because his findings "were based upon the totality of the
information that he had received and reviewed as well as his examination of
Ortiz." The ALJ also concluded Ortiz "failed to meet the burden of
demonstrating, by a preponderance of the evidence, that the permanent and total
disability was a direct result of the traumatic incident" because Ortiz suffered
from many pre-existing "stressors."
Turning to the second issue, the ALJ found Ortiz fired his service weapon
after "seeing the rear passenger point a gun at him." As such, it was "clear . . .
that Ortiz perceived he faced a credible threat of 'death or serious injury .'"
Nonetheless, that interaction was not "undesigned or unexpected." Instead, the
ALJ concluded "a police officer is trained for this very interaction and having
to deal with armed individuals is part of his duty as an officer."
Accordingly, the ALJ concluded Ortiz failed to demonstrate his disability
was directly caused by a traumatic event at work, and that the event was not
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"undesigned and unexpected." After Ortiz filed exceptions and PFRS replied,
the Board issued its final administrative decision, adopting the ALJ's initial
decision. This appeal followed.
On appeal, Ortiz argues the Board erroneously adopted the ALJ's decision,
which, he maintains: (1) failed to determine Ortiz experienced a "terrifying or
horror-inducing event"; (2) incorrectly attributed his injury to pre-existing
conditions; and (3) misapplied the law by concluding the event was not
undesigned and unexpected.
II.
"Our review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts
presume the validity of the "administrative agency's exercise of its statutorily
delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For
those reasons, "an appellate court ordinarily should not disturb an administrative
agency's determinations or findings unless there is a clear showing that (1) the
agency did not follow the law; (2) the decision was arbitrary, capricious, or
unreasonable; or (3) the decision was not supported by substantial evidence." In
re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,
422 (2008). "The burden of demonstrating that the agency's action was
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arbitrary, capricious or unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.
2006).
"[T]he test is not whether an appellate court would come to the same
conclusion if the original determination was its to make, but rather whether the
factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Rev.,
152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Rev., 200 N.J. Super. 74,
79 (App. Div. 1985)). "Where . . . the determination is founded upon sufficient
credible evidence seen from the totality of the record and on that record findings
have been made and conclusions reached involving agency expertise, the agency
decision should be sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83
N.J. 174, 189 (1980), overruled on other grounds by Maynard v. Bd. of Trs.,
Teachers' Pension & Annuity Fund, 113 N.J. 169 (1988). That said, appellate
courts review de novo "an agency's interpretation of a statute or case law."
Russo, 206 N.J. at 27.
The PFRS provides for both ordinary disability benefits, N.J.S.A. 43:16A-
6, and accidental disability benefits, N.J.S.A. 43:16A-7. Ordinary disability
benefits only necessitate that the employee demonstrate that he is permanently
"mentally or physically incapacitated for the performance of his usual duty and
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of any other available duty in the department which his employer is willing to
assign to him." N.J.S.A. 43:16A-6(1). Alternatively, accidental disability
benefits require the employee demonstrate he "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(a)(1).
"[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, 192 N.J. at 212-13, the Court held that a claimant seeking
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
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5. that the member is mentally or physically
incapacitated from performing his usual or any other
duty.
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.
An applicant 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 33-34. In Patterson, the Court held:
The disability must result from direct personal
experience of a terrifying or horror-inducing event that
involves actual or threatened death or serious injury, or
a similarly serious threat to the physical integrity of the
member or another person. 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, the Court clarified that the objective reasonableness standard is
met after a petitioner has experienced a "terrifying or horror-inducing event."
206 N.J. at 33. Nonetheless, we have held that "the diagnostic criteria for PTSD
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are not identical to the Patterson requirement." Thompson v. Bd. of Trs.,
Teachers' Pension & Annuity Fund, 449 N.J. Super. 478, 495 (App. Div. 2017),
aff'd o.b., 233 N.J. 232 (2018). "[T]he Supreme Court in Patterson . . . did not
hold that any employee who obtains a PTSD diagnosis qualifies for accidental
disability benefits." Ibid.Thereafter, the Court summarized a two-part analysis in cases of
permanent mental incapacity resulting from "an exclusively psychological
trauma." Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 426
(2018). "The court first determines whether the member directly 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.'" Ibid. (quoting Patterson, 194 N.J. at 50). If the
event meets the Patterson test, the court then applies the Richardson factors to
the member's application. Ibid.As the Court observed in Russo, "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.
Nonetheless, "the Board and a reviewing court must carefully consider not only
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the member's job responsibilities and training, but all aspects of the event itself.
No single factor governs the analysis." Mount, 233 N.J. at 427.
Guided by these principles, we are satisfied the Board correctly concluded
the event was not "undesigned and unexpected" as required under Richardson.
192 N.J. at 212. As the ALJ aptly concluded, Ortiz "[wa]s trained for this very
type of interaction," and his duties as a police officer included "deal[ing] with
armed individuals."
Indeed, Ortiz was a twelve-year veteran of the police force, trained in
discharging his service weapon. His duties included making arrests and physical
encounters with suspects. Some of those situations could be expected to involve
the discharging of his service weapon. That was the case here, where the officers
were called to a carjacking in progress, during which a handgun was brandished.
There was nothing here that fell outside the scope of Ortiz's general duties as a
police officer. He was not placed in a situation where he lacked equipment or
training. Given the totality of the circumstances here, it was not unreasonable
for Ortiz to anticipate that shots might be fired.
We therefore agree with the Board's decision that the event was not
undesigned and unexpected. In view of our determination, we need not reach
Ortiz's remaining contentions.
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Affirmed.
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