DANIEL LYNCH VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3532-16T2
DANIEL LYNCH,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
Submitted January 28, 2019 – Decided February 8, 2019
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. 3-10-46413.
Alterman & Associates, LLC, attorneys for appellant
(Stuart J. Alterman, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Juliana C. DeAngelis, Deputy
Attorney General, on the brief).
PER CURIAM
Petitioner Daniel Lynch appeals from a March 14, 2017 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 July 2012, petitioner applied for ADR benefits, claiming he suffers
from post-traumatic stress disorder (PTSD) and panic attacks following an
incident that occurred during the course of his employment as a police officer.
In sum, on October 16, 2011 at approximately 11:45 p.m., petitioner responded
to a call that a suspect was naked, armed "with some sort of BB gun[,]" and
throwing objects over his apartment's balcony. The suspect "ha[d] been acting
strange[ly] for hours." During the course of his arrest, another officer shot the
suspect in the foot. Neither petitioner nor the other officer was physically
injured during the incident.
The Board denied petitioner's application for ADR benefits, determining
"the event that caused [his] disability claim [was] not undesigned and
unexpected." The Board further found
no evidence that the event was objectively capable of
causing a reasonable person in similar circumstances to
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suffer a disabling mental injury; as [his injury] did not
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 the member or another
person."
Instead, the Board granted petitioner ordinary disability retirement benefits.
N.J.S.A. 43:16A-6.
Thereafter, petitioner filed an administrative appeal and the matter was
transmitted to the Office of Administrative Law as a contested case. Petitioner
was the only witness to testify at the hearing. An Administrative Law Judge
(ALJ) also considered documentary evidence, including petitioner's application
for disability retirement, his job description, his hand-drawn diagram of the
incident,1 and police reports.
The facts adduced at the hearing before the ALJ are essentially
undisputed. At the time of the incident, petitioner was employed as a police
officer with the Belmar Police Department for approximately ten years. When
petitioner and Officer Ryan Nolan knocked on the suspect's door, identifying
themselves as police, the suspect responded, "Do you know you have a [.]45
[caliber weapon] pointed at your head?" The officers then drew their weapons
1
The diagram was not admitted in evidence.
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and stepped away from the door. When "[n]othing happened[,]" the officers
knocked again. Petitioner heard what sounded like "a semi[-]automatic handgun
being racked." In response, the officers backed away from the door: petitioner
moved toward the nearby stairway; and Nolan moved toward the opposite end
of the hallway.
Thereafter, the suspect opened the door, and pointed a gun at petitioner.
Because Nolan was in petitioner's line of fire, petitioner did not fire his weapon.
Instead, petitioner jumped into the stairwell to avoid being shot, and to afford
Nolan the opportunity to take clear aim at the suspect. When Nolan fired his
weapon, the bullet ricocheted off the wall where petitioner had been standing
and struck the suspect in the foot. Petitioner claimed he would have been hit by
the projectile had he not moved into the stairwell. The suspect's weapon was
not loaded, and petitioner did not fire his weapon during the exchange.
The October 2011 incident was petitioner's first involvement in a
shooting. He had drawn his service weapon during one prior incident, but had
never fired it. Petitioner's only experience discharging his firearm was during
his police training, which was limited to shooting paper targets.
The ALJ issued a written initial decision finding petitioner was entitled to
receive ADR benefits. Referencing petitioner's lack of experience in
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"situation[s] where [he had to] tak[e] action to protect himself and his partner
from [an] armed and seemingly dangerous" suspect, the ALJ concluded "the
encounter developed into something entirely undesigned and unexpected."
Citing the test set forth by our Supreme Court in Patterson v. Board of Trustees,
State Police Retirement System, 194 N.J. 29, 33 (2008), the ALJ further
determined petitioner demonstrated he "had a 'direct personal experience of 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
[petitioner] or another person.'" Accordingly, the ALJ recommended that
petitioner was entitled to an ADR pension. Thereafter the Board submitted to
the Division of Pension and Benefits written exceptions to the ALJ's decision,
and petitioner submitted his responses.
Although the Board accepted the ALJ's factual findings, it rejected the
ALJ's legal conclusion. Specifically, the Board determined petitioner did not
meet the Patterson standard, finding the mere "discharge of Nolan's gun and
ricochet of the bullet" was not a sufficient physical threat to render the event
terrifying. Further, petitioner did not fire his weapon, and was "not in the line
of fire." The Board distinguished the incident from the examples set forth in
Patterson, such as a "permanently mentally disabled policeman who sees his
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partner shot; a teacher who is held hostage by a student; and a government
lawyer used as a shield by a defendant." Patterson, 194 N.J. at 50. The Board
also noted that "[petitioner's] injury was unlike the traumatic injury suffered in
Hayes [v. Board of Trustees, Police & Firemen's Retirement System, 421 N.J.
Super. 43, 47-48 (App. Div. 2011) (reversing the Board's decision and awarding
ADR benefits to a police officer, who responded to a call and discovered her
younger brother, a fellow officer, was shot in the face and thereafter, learned a
gang hit was put out on her life)]."
Further, the Board determined that even if petitioner could satisfy the
Patterson standard, he could not establish that incident was an undesigned and
unexpected event. As a police officer, petitioner received the "essential
elements of police training[,]" including use of his service weapons and the
apprehension of suspects, "many of whom are armed." Because petitioner
neither fired his weapon nor was in the line of fire, the Board concluded he failed
to demonstrate the incident was undesigned and unexpected. Accordingly, the
Board concluded petitioner was not entitled to ADR benefits. This appeal
followed.
On appeal, petitioner argues the Board's decision was arbitrary and
capricious, because it was "based on a fabricated bright-line rule that officers
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must always expect dangerous situations with armed suspects" and it is
"inconsistent with the Patterson (reasonable person) standard." Petitioner
further claims the Board improperly adopted the written exceptions verbatim
from the brief filed by the Attorney General on behalf of the Board.
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
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).
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"[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
Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 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, N.J.S.A. 43:16A-6, and accidental,
N.J.S.A. 43:16A-7(1), disability benefits. "[A]n accidental disability retirement
entitles a member to receive a higher level of benefits than those provided under
an ordinary disability retirement." Patterson, 194 N.J. at 43. In Richardson v.
Board of Trustees, Police & Firemen's Retirement Systems, 192 N.J. 189, 212-
13 (2007), the Court held that a claimant for ADR benefits must prove:
1. that he is permanently and totally disabled;
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2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to the
member (not the result of pre-existing disease
that is aggravated or accelerated by the work);
3. that the traumatic event occurred during and as a
result of the member's regular or assigned duties;
4. that the disability was not the result of the member's
willful negligence; and
5. that the member is mentally or physically
incapacitated from performing his usual or any other
duty.
The Court defined a "traumatic event" as "essentially the same as what we
historically understood an accident to be—an unexpected external happening
that directly causes injury and is not the result of pre-existing disease alone or
in combination with work effort." Id. at 212.
A petitioner who has suffered a "permanent mental disability as a result
of a mental stressor, without any physical impact," must meet an additional
requirement to qualify for ADR benefits. Patterson, 194 N.J. at 33. In Patterson,
the Court held:
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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 [ADR] 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
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.
The Court has recently 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). Specifically,
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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." If the event meets the
Patterson test, the court then applies the Richardson
factors to the member's application.
[Ibid. (quoting Patterson, 194 N.J. at 50).]
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 Court recently clarified in Mount that "the Board and a
reviewing court must carefully consider not only the member's job
responsibilities and training, but all aspects of the event itself. No single factor
governs the analysis." 233 N.J. at 427.
Applying these principles here, we are satisfied the event was not
"undesigned and unexpected" as required by Richardson. 192 N.J. at 212. In
particular, as the Board correctly concluded, petitioner's "arrest of an armed
suspect [fell] within the specified duties of a police officer." Id. at 212-13.
Specifically, petitioner was a ten-year veteran, trained in discharging his
service weapon. His duties included making arrests and investigating suspicious
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activity. Some of those investigations could be expected to involve the
discharging of a service weapon where, as here, the officers were faced with an
imminent threat of death or serious bodily injury. There was nothing here that
fell outside the scope of petitioner's general duties as a police officer. Petitioner
was not placed in a situation where he lacked equipment or training. Rather,
given his patrol duties, and his receipt of a dispatch call that the suspect was
armed and acting strangely, it was not unreasonable for petitioner to anticipate
that shots might be fired.
Having carefully considered petitioner's job responsibilities and training,
and the circumstances of the events here, we agree with the Board's decision
rejecting the ALJ's legal conclusions was not arbitrary, capricious or
unreasonable. In light of our determination, we need not reach whether
petitioner experienced a "terrifying or horror-inducing event." Russo, 206 N.J.
at 33.
Finally, petitioner fails to direct us to any authority supporting his
remaining contention that the Board acted improperly by adopting verbatim the
written exceptions set forth in the Attorney General's brief. We have
nonetheless considered petitioner's argument, finding it lacks sufficient merit to
warrant discussion in our written opinion. R. 2:11-3(e)(1)(E). We simply add
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the Attorney General, as counsel for the Board, submitted the exceptions to the
Division of Pension and Benefits on behalf of the Board. We discern no
impropriety in that submission.
Affirmed.
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