E.T., Pеtitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN‘S RETIREMENT SYSTEM, Respondent-Respondent.
DOCKET NO. A-2122-23
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Decided April 14, 2025
RECORD IMPOUNDED. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.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. Submitted April 1, 2025. Before Judges Perez Friscia and Bergman. On appeal from the Board of Trustees of the Police and Firemen‘s Retirement System, Department of the Treasury, PFRS No. xx1011.
Gebhardt & Kiefer, PC, attorneys for respondent (Leslie A. Parikh and Susan M. Kennedy, on the brief).
Petitioner E.T.1 appeals from the Board of Trustees (Board) of the Police and Firemen‘s Retirement System‘s March 13, 2024 final agency decision (FAD), which denied his application for accidental disability retirement (ADR) benefits pursuant to
I.
E.T. worked as a police officer with the Cresskill Police Department (CPD). He was a police officer for almost fifteen years and began working for CPD in 2009. CPD assigned E.T. primarily to patrol.
On September 3, 2015, E.T. responded to a small propeller plane crash, which occurred in an open land area. Moments after E.T. arrived at the scene, he observed a CPD detective had also responded. E.T. parked approximately seventy-five yards away from the crash and ran directly to the crumpled plane. Upon reaching the plane, he did not see the occupants but heard their calls for help and believed they “were in distress.” E.T. immediately smelled “an extremely pungent odor of fuel and [saw] smoke.” He thought he should “run away” because of the danger the smоking plane presented.
E.T. had some knowledge about flying planes because he had taken a flying course in college, but he did not receive рlane accident training. CPD‘s essential functions for a police officer included having to: “[r]un [or] sometimes sprint[] at a high rate of speed“; “[c]limb over [and] . . . jump over obstacles“; “[u]se bodily force to gain entrance or break through barriers,” “[s]ecure the scene of a[n] . . . emergency or disaster“; “[s]tand guard at [an] . . . emergency or disaster to prevent . . . loss or injury to persons“; “perform rescue and support functions at the scenes of accidents, emergencies, and disasters“; “[s]ecure and evacuate persons from particular areas“; and “[m]itigate hazardous conditions.” Prior to the plane crash, E.T. had performed multiрle rescue functions at accident scenes but never one involving a plane. While he had received training
E.T. experienced anxiety and insomnia after responding to the plane crash and “self-medicate[d] by abusing alcohol.” He dutifully reported his alcohol abuse to CPD‘s Deputy Chief and Chief of Police (Chief) and requested assistance. He attended multiple treatment programs for his alcohol dependency. After E.T. attempted suicide and was hospitalized, he terminated employment with CPD. Doctors diagnosed E.T. with mental health disorders and prescribed medications for his depression, anxiety, and sleep issues.
On December 3, 2018, E.T. applied for ADR benefits. He averred he was disabled and could no longer serve as an officer due to the psychological impacts associated with responding to the plane crash. E.T.‘s official last day of employment with CPD was January 1, 2019. On August 12, the Board denied E.T.‘s ADR benefits application, finding he: was “not totally and permanently disabled from the performance of [his] regular and assigned job duties“; was “not physically or mentally incapacitated from the performanсe of [his] usual or other duties that . . . [CPD] was willing to offer“; and did not suffer a traumatic event that “was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury[,] as [his] disability did not
On January 8, 2019, after examining E.T., Michael R. Bizzarro, PhD, LCSW, BCD,2 authored an expert report. Dr. Bizzarro diagnosed E.T. with post-traumatic stress disorder (PTSD) and opined within a reasonable degree of psychological certainty that E.T. could “no longer perform his duties as a [p]olice [o]fficer.”
On February 10, 2020, the Board reconsidered its denial of E.T.‘s ADR benefit application and reaffirmed its “determination that . . . [E.T.] [was] not totally and permanently disabled from the performance of his regular and assigned job duties as a patrolman.” The Board restated its decision that “the event was not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury,” and E.T.‘s “disability did not result from [a] ‘direct personal experience of a terrifying horror-inducing event
After E.T. appealed, on May 12, 2020, the Board transferred the matter to the Office of Administrative Law (OAL) as a contested case. The CPD‘s Chief forwarded a letter supporting E.T.‘s disability to the Board. On January 21, 2021, the Administrative Lаw Judge (ALJ) presided over a hearing at which E.T. and Dr. Bizzarro testified. The ALJ adjourned the matter for further proceedings and supplemental submissions.
On January 10, 2022, while the appeal was pending before the ALJ, the Board again reconsidered the denial of E.T.‘s ADR benefits based on a new independent medical examination and report as well as the Medical Review Board‘s recommendations. The Board modified its prior decisions, finding E.T. was “totally and permanently disabled from the performance of his regular and assigned duties as a result” of the September 3, 2015 incident. Although the Board awarded E.T. ordinary disability retirement benefits effective January 1, 2019, it reaffirmed its denial of E.T.‘s ADR benefits application, finding the incident “was not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury” and again found E.T.‘s “disability did not result from [a] ‘direct personal experience of a terrifying or
On February 15, 2024, the ALJ issued an initial written decision affirming the Board‘s denial of E.T.‘s ADR benefits. As the Board had reconsidered its decision and found E.T. “totally and permanently disab[led]” based on his medical diagnoses of PTSD, anxiety, depression, and alcoholism, the ALJ noted that “the parties agreed that medical testimony as to total and permanent disability was not necessary.” The ALJ referenced Dr. Bizzarro‘s opinion that the symptoms E.T. “was displaying and the self-medicating with the alcohol . . . was based on the [plane] incident,” E.T. had experienced “significant trauma that he was trying to cope with and was not very successful,” and the “symptoms . . . [were] consistent with the diagnosis of . . . [PTSD].”
The ALJ then considered the facts surrounding the plane crash and E.T.‘s training, finding: E.T. testified that “the physical appearance of a hurt person d[id] not affect him“; “there wаs no . . . threat to life or injury[,] as the plane was not on fire“; “[he] did not witness the plane crash“; he “d[id] not recall seeing any people in the plane but . . . . remembered hearing them“; and he “was trained in the physical movement and extraction of people in response and
On appeal, E.T. contends the Board‘s FAD denying his ADR benefits application warrants reversal because he sufficiently demonstrated his involvement in an accident that meets the definition of a “traumatic event” under the test outlined in Richardson v. Board of Trustees, Police and Firemen‘s Retirement System, 192 N.J. 189 (2007), and Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008).
II.
Our review of an agency determination is limited. Russo v. Bd. of Trs., Police & Firemen‘s Ret. Sys., 206 N.J. 14, 27 (2011). An appellate court “may not substitute its own judgment for the agency‘s, even though the court might
An appellate court is not, hоwever, bound by an agency‘s statutory interpretation or other legal determinations, which are reviewed de novo. Mount, 233 N.J. at 418-19. Even so, “[w]e must give great deference to an agency‘s interpretation and implementation of its rules enforcing the statutes for which it is responsible.” Piatt v. Bd. of Trs., Police & Firemen‘s Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015) (quoting Saint Peter‘s Univ. Hosp. v. Lacy, 185 N.J. 1, 13 (2005)). “Such deference has been specifically extended to state agencies that administer pension statutes.” Tasca v. Bd. of Trs., Police & Firemen‘s Ret. Sys., 458 N.J. Super. 47, 55 (App. Div. 2019) (quoting Piatt, 443 N.J. Super. at 99).
To qualify for ADR benefits, an employee must demonstrate he or she “is permanently and totally disabled as a direct result of a traumatic event occurring
“[A] traumatic event is . . . an unexpected external happening that directly causes injury and is not the result of pre-existing disease alone or in combination with work effort.” Richardson, 192 N.J. at 212. To establish entitlement to ADR benefits, a member must prove:
- that he [or she] is permanently and totally disabled;
- as a direct result of a traumatic event that is
- identifiable as to time and place,
- undesigned and unexpected, and
- cаused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);
- that the traumatic event occurred during and as a result of the member‘s regular or assigned duties;
- that the disability was not the result of the member‘s willful negligence; and
that the member is mentally or рhysically incapacitated from performing his usual or any other duty.
[Mount, 233 N.J. at 421 (quoting Richardson, 192 N.J at 212-13).]
See also
Our Supreme Court has recognized that “coverаge for mental injuries is not disputed.” Patterson, 194 N.J. at 44. “The only issue is whether such an injury will be recognized as a basis for accidental disability if it is caused by an exclusively psychological trauma.” Id. at 44-45. The Supreme Court held that to substantiate a covered traumatic mental injury, the petitioner is required to demonstrate “that the disability resulted from a ‘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.‘” Mount, 233 N.J. at 424 (quoting Patterson, 194 N.J. at 34). This requirement “achieve[s] the important assurance that the traumatic event posited as the basis for аn accidental disability pension is not
III.
We begin by recognizing that it is undisputed E.T. immediately responded to the plane crash, ran directly to the plane to assist the victims while cognizant of potential danger, and tried tо “gain access to the [crumpled] plane.” Some months after the accident, E.T. reported his alcohol abuse to CPD and sought assistance. Prior to terminating his employment, E.T. remained dedicated “to get[ting] help” and addressing his “need to abuse . . . alcohol.” E.T. also steadfastly tried to return to work at CPD but found his mental disability prеvented him from working in law enforcement.
While we concur with E.T.‘s contention “that a psychiatric injury can result from a ‘traumatic event’ and so qualify for . . . [ADR benefits],” we discern no error in the Board‘s FAD adopting the ALJ‘s determination that E.T.‘s
We reject E.T.‘s argument that the Board committed a legal error in considering his training and the nature of the event relative to his responsibilities as a patrolman. As the ALJ found and the Board adopted, E.T. admitted that he: did not witness the plane crash; did not extract the occupants from the plane; did not observe the plane on fire; was not ordered to enter the plane; and was aware the plane‘s occupants survived. The ALJ appropriately considered these facts in reviewing whether E.T.‘s “mental injury precipitated by an exclusive mental
In sum, having considered E.T.‘s arguments in light of the record and applicable legal standards, we affirm the Board‘s FAD denying his claim for ADR benefits. Under the present facts, substantiаl credible evidence in the record supports the Board‘s adoption of the ALJ‘s determination that E.T.‘s disability did not arise “as a direct result of a traumatic event.” Mount, 233 N.J. at 419 (quoting
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
M.C. Hanley
Clerk of the Appellate Division