Opinion
DOCKET NO. A-2763-13T4
07-26-2016
WILLIAM KARASIK, Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent.
Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone, on the briefs). Amy Chung, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Robert E. Kelly, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Higbee. On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS No. 3-10-43412. Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone, on the briefs). Amy Chung, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Robert E. Kelly, Deputy Attorney General, on the brief). PER CURIAM
Appellant William Karasik appeals from a final agency decision issued by the Board of Trustees, Police and Firemen's Retirement System (the Board) on January 14, 2014. The Board granted appellant ordinary disability retirement, effective on August 1, 2010, but rejected his application for accidental disability retirement benefits, N.J.S.A. 43:16A-7. We reverse.
An accidental disability retirement award "is more generous than ordinary disability, which awards approximately forty percent of the member's final compensation." Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 193 n.2 (2007) (citing N.J.S.A. 43:16A-6(2)(b)).
Appellant served as a police officer in the Township of Sparta Police Department (Department), attaining the rank of corporal. Sometime in 2001, the Department was the subject of a scandal when the contentious termination of an affair between a married superior officer and a married patrol officer was disclosed. In the aftermath of this incident the Department's superiors ordered all officers to strictly comply with the Department's Code of Conduct, which included an obligation to report known violations.
In September 2001, while entering the station through the main lobby, appellant and another officer observed Detective Sergeant Casteel with his hands down the blouse of the female records clerk, publicly fondling her breasts. Appellant and the accompanying officer reported the misconduct to their direct supervisor, Sergeant Bebe, who reported the incident to Internal Affairs Commander Lieutenant Nafis. Lieutenant Nafis informed Casteel appellant reported him. Although this breach caused the Chief of Police to remove Nafis from the investigation, unfortunately, appellant's role in issuing the report became widely known.
Following disclosure, appellant and his fellow officer became targets of harassing conduct by other officers, as appellant testified, "we were no longer considered patrolmen. We were considered trash to them." He explained he was told: "You crossed the blue line, you should have kept your mouth shut and not said anything about us because shit roles downhill."
The term "blue line" is understood to reference other similar terms. For example, "[t]he term 'blue wall' is common parlance for police officers' reluctance to incriminate their fellow officers." State v. Morais, 359 N.J. Super. 123, 132 (App. Div.) (citing Ricciuti v. N.Y. City Transit Auth., 70 F. Supp. 2d 300, 333-34 (S.D.N.Y. 1999); Simon v. City of Naperville, 88 F. Supp. 2d, 872, 876 (N.D. Ill. 2000)), certif. denied, 177 N.J. 572 (2003).
Examples of the harassing experiences he endured included: Nafis gave appellant dirty looks and made comments like "if you f**K somebody, you're going to get f**ked yourself"; other officers were "taking stuff out of [his] reports" so his reports would be incomplete and he would look foolish in court; appellant was sent to report-writing school; he was repeatedly transferred to different squads, losing seniority and overtime; appellant's vacation and personal time requests were "thrown away" and a junior officer was assigned the dates he had requested for leave; appellant was overlooked for special detail assignments; the records clerk involved in the incident with Casteel wrote harassing notes on appellant's paperwork and filed unfounded complaints against him; other officers would call appellant "Tweedledum" and "short-timer"; officers taped posters of males engaging in homosexual activities to his locker; and appellant was required to have an escort while in the station house.
Appellant's employment was terminated in March 2004. Following his discharge, he and his fellow officer filed a retaliatory discharge claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. The matter was finalized with a $1,900,000.00 judgment for appellant and his fellow officer, entered on June 18, 2010. An additional provision deemed appellant's termination a nullity and allowed him to be reinstated for one day to apply for disability retirement.
Sometime between March 2004 and June 2010, appellant attempted to file for disability benefits. However, he was informed by the Chief of Police he was not eligible to file because his employment had not been terminated.
Following his reinstatement, appellant sought accidental disability retirement benefits. The Board reviewed his application and granted ordinary disability retirement, but denied accidental disability retirement benefits, concluding the allegations did not qualify as a traumatic event. Appellant filed an administrative appeal and the matter was transmitted to the Office of Administrative Law as a contested case pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -23.
During the administrative hearing, appellant testified and presented documents and the Board presented expert testimony from Daniel LoPreto, Ph.D., who conducted an examination of appellant after reviewing his medical records.
Appellant's testimony described the events he maintained supported his application. In 2002 to 2003, while in the police station locker room, other officers "would load their guns" and "rack" their weapons, "with the barrel pointed in [appellant's] direction." When appellant attempted to file complaints or voice his concerns to the Internal Affairs department, he was told "don't come in here anymore," with the IA officer saying "I'm not entertaining any complaints."
In May or June 2003, appellant and other officers attended the department's semiannual "simunitions" training. To participate in the training, the officers replaced the barrel and ammunition of a standard issued firearm with "a different barrel and different bullet" to enable the weapon to fire nonlethal paintballs. Lieutenant Schetting, who was the acting range master, examined each officer's weapon to check for cleanliness, function, and otherwise evaluate the weapon prior to participation in the training. As appellant's firearm was examined, Schetting stated: "You know what? It's very easy for these to get mixed up, Bill." Appellant testified: "he held the bullet and the barrel in his hand, and he said to me, he said, 'you know how easy it would be to get killed out here' . . . ."
Appellant became frightened because he considered Schetting "short-tempered" and "aggressive." Consequently, appellant walked away to hide behind a nearby shed. After "some time went by" appellant reemerged from behind the shed. Schetting commented to him, "You know, bullets go through wood." Appellant left the range and was excused from further participation in the training.
On June 13, 2003, while in the station typing a report, appellant requested assistance from Sergeant Duse. Duse responded "You're a cop. Figure it out." Appellant testified Duse sat in a chair directly behind him and began playing with his gun. Appellant described the interaction as follows:
[APPELLANT]: [H]e'd sit in the sergeant['s] chair behind . . . my workstation, and he'd pull his gun out. It's called — we call it breaking leather, and he'd sit behind you and play with his gun and rack it and all of that. You know, point it and you know, act like, huh-huh, look at this, you know what I mean. And that kind of thing. And then
he'd come up close behind you, and I'd be doing my report, and he'd do the same thing. He'd . . . whip it out and he'd start playing with it. And I was . . . in such fear. I thought the thing would go off and shoot . . . me in the head. He was so close. And he would do that over and over then laugh about it. And you know [say], "hey, you know, we've heard about cops getting shot by other cops," you know.
Q: He would say that to you?
A: Yeah, he would say that kind of thing to me.
Q: In the report room?
A: Yeah. You know, "Accidental discharge." You know, that would be his saying, "Accidental discharge."
Q: . . . how close would he get to you with his weapon?
A: Within feet. I mean, sometimes I could feel it right on the back of my head, right on the back of my hair like this as he's playing around with it.
Q: You could feel what?
A: I could feel the end of the gun.
Q: So you got your sergeant behind you with a gun at the back of your head?
A: Yes.
Q: And what do you do when the sergeant is playing with the gun, standing up, and putting it at the back of your head?
A: I'm frozen because I'm afraid if I move, and his finger on that trigger, I'm going to get shot.
Appellant filed a report with internal affairs describing this life-threatening incident. He thereafter suffered nightmares and physical reactions. He commenced sick leave and never returned to work.
On March 13, 2003, appellant commenced therapy with Sheila Dancz, Ph.D., which continued until shortly before trial. Appellant testified he "couldn't take the pressure of the ridicule and being ostracized and just the general harassment. Everything just started to pile up on me and the comments they were making that I would be a short timer, and it just built up." Appellant commenced treatment with Alison Weiner, M.D., which he continued during and after the hearing until September 2013. Drs. Dancz and Weiner separately diagnosed and treated appellant for Post-Traumatic Stress Disorder (PTSD).
On behalf of the Board, Dr. LoPreto agreed appellant suffered from chronic PTSD and major depressive disorder, which resulted in total and permanent disability. He found these conditions were "a direct result of a series of workplace incidents that initiated in June 2001 and continued up until his work stoppage in June 2003." Specifically addressing the gun range incident, Dr. LoPreto testified: "But I don't think that in and of itself would be the causal event, per se. I think it was almost more the straw that broke the camel's back, so to speak." He further testified:
What I'm suggesting to the court is that a single event of that nature, a sergeant saying, "You can get killed, be careful out here," to me, would not constitute a trauma unless the seeds were planted earlier that would make that a threat. Okay? So that's why I think, the trauma becomes a little bit misleading. I think that was an unpleasant event, but I don't attribute that to be the trauma in the diagnosis [of] posttraumatic disorder. I believe it was multiple traumas, not just that one event.
In a written decision, the reviewing administrative law judge affirmed the Board's denial of appellant's application for accidental disability retirement benefits, concluding "the ongoing campaign of harassment and or retaliation" did "not constitute the type of qualifying horrific event envisioned by Patterson and its progeny" as the gun range incident and the gun threats by Schetting, "do not constitute the type of horrific, terrifying traumatic event" necessary to qualify for accidental disability retirement benefits. The administrative law judge also concluded "a clinical diagnosis of PTSD alone does not constitute a qualifying Patterson traumatic event." The Board adopted the initial recommendation and denied appellant's application on January 14, 2014. This appeal ensued.
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008).
Our review of actions by an administrative agency action is limited. In re Herrmann, 192 N.J. 19, 27 (2007). We "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 Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). However, "because questions of law are the province of the judicial branch, we are in no way bound by an agency's interpretation of a statute or its determination of a strictly legal issue," Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citations omitted), particularly "when that interpretation is inaccurate or contrary to legislative objectives[,]" G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999). This court "appl[ies] de novo review to an agency's interpretation of a statute or case law." Russo, supra, 206 N.J. at 27.
"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.), certif. denied, 188 N.J. 219 (2006). In our review, "'the 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)).
Accidental disability retirement benefits are governed by N.J.S.A. 43:16A-7. To obtain benefits, a public employee must prove:
N.J.S.A. 43:15A-43 provides in pertinent part:
A member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application or the application of one acting in his behalf, be retired by the board of trustees, if said employee 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, on an accidental disability allowance. . . .
The application to accomplish such retirement must be filed within five years of the original traumatic event, but the board of trustees may consider an application filed after the five-year period if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to circumstances beyond the control of the member.
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; an[d]
5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
[Richardson, supra, 192 N.J. at 212-13.]
In Russo v. Teachers' Pension & Annuity Fund, 62 N.J. 142, 154 (1973), our Supreme Court explained a traumatic event "may be found either in an unintended external event or in an unanticipated consequence of an intended external event if that consequence is extraordinary or unusual in common experience." Thus, a claimant will not be entitled to accidental disability retirement benefits where he or she is injured undertaking his or her ordinary work effort, even if that effort is particularly strenuous. Later, in Richardson, supra, 192 N.J. at 192, the Court synthesized the traumatic event language, explaining that
an injury generated by a great rush of force is one example that will satisfy the traumatic event standard, but not the only example. Rather, the traumatic event standard will also 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).
In reaching this determination, the Court interpreted the words of the statute and described "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. "The polestar of the inquiry is whether, during the regular performance of his [or her] job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member." Id. at 214.
In Patterson, the Court concluded a mental disability arising out of a pure mental stressor with no physical impact can qualify for accidental disability benefits so long as the applicant satisfies Richardson's criteria and, in addition:
[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. 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.
[Patterson, supra, 194 N.J. at 34.]
Reported opinions addressing what has been characterized as "mental-mental" accidental disability retirement requests involve applicants who were personally involved in a traumatic event, which specifically threatened death, serious injury, or other trauma to the applicant's physical integrity. See Russo, supra, 206 N.J. at 18 (involving a successful accidental disability retirement applicant who was injured when a victim died during a "terrifying" fire rescue); Guadagno v. Bd. of Trs., Police & Firemen's Ret. Sys., 194 N.J. 29, 53 (2008) (involving a successful applicant who was the recipient of a gang member's "credible threat" to harm him, then rape and murder his wife and daughter); Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 20-22 (App. Div. 2013) (involving a successful applicant who, in an attempt to subdue a violent drug addict, was stuck by the addict's hypodermic needle); Hayes v. Bd. of Trs. of Police & Firemen's Ret. Sys., 421 N.J. Super. 43, 47-48 (App. Div. 2011) (involving a successful applicant-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). Accordingly, an applicant must meet not only the Patterson test, but also must show events leading to the disabling mental injury satisfies each prong identified in Richardson. Patterson, supra, 194 N.J. at 50. The interplay of these requirements was best described in the following passages from Russo, supra, 206 N.J. at 32-33:
In a mental-mental case, Patterson is the threshold that must be met for further inquiry to be warranted. Satisfying Patterson eliminates the problem of "idiosyncratic responses by members to inconsequential mental stressors," id. at 49, insofar as the events described in Patterson are of sufficient gravity to objectively cause a permanent, disabling mental injury to a reasonable person, id. at 49-50. . . . [W]here a qualifying horrific event is experienced, Patterson is satisfied with no further analysis. It is then that Richardson comes into play.
It is under Richardson that the member who has experienced a qualifying traumatic event must prove that the event, in fact, caused him to be permanently and totally disabled; that it was identifiable as to
time and place; undesigned, unexpected, and external to the member; that it was work related; not self-induced, and that the member is unable to perform his usual or any other duty. Richardson, supra, 192 N.J. at 212-13. That is important because it underscores that not every person who experiences a Patterson-type horrific event will automatically qualify for a mental-mental accidental disability benefit. . . . [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.
On appeal, appellant argues the station house gun incident with Duse standing alone satisfactorily proves he suffered a "traumatic and horror-induced" event causing his disability that qualifies for accidental disability retirement benefits. The Board rejects this interpretation, arguing the event was part of a series of ongoing harassment which aggravated appellant's fragile psyche, and did not qualify as the necessary traumatic event.
Neither party disputes the "on-going campaign" of harassment against appellant by public employees charged with upholding the law because he dared to comply with his duty to report a breach of conduct, which unquestionably exposed the Department to possible liability, as well as reflected unbecoming conduct by public servants. It can reasonably be presumed these events caused appellant mental stress for which he commenced therapy with Dr. Dancz.
Notwithstanding that this course of intimidating, abusive exercise of authority, bullying, ostracizing and puerile retaliation thwarting his efforts, he endured this hostility for months and performed his responsibilities as a police officer. None of the other described incidents rose to the level of Duse's conduct, who stood behind appellant, placed his loaded weapon to the back of appellant's head such that appellant could feel the nose of the gun on his hair, placed his finger on the trigger, and suggested the gun might accidently discharge.
Appellant was exposed to a direct specific experience, which was terrifying, horror inducing and involved threatened death or serious injury and a threat to his physical integrity. Patterson, supra, 194 N.J. at 50. The direct result of the June 13, 2003 event caused appellant to experience physical reactions, nightmares of being shot, uncontrollable stress and fears, which developed into major depressive disorder and acute PTSD, preventing him from working. Psychiatric treatment and medication replaced his therapy approximately ten weeks later.
We reject the Board's determination that this was merely an idiosyncratic reaction by appellant. The Board, in accepting the limited administrative law judge's findings that lumped Duse's actions as part of the everyday ongoing harassment, glossed over the intensity of such terrorizing conduct that threatened appellant with death or serious injury.
These facts are unlike the facts described in Patterson, where persistent and cruel verbal abuse was found insufficient to satisfy the traumatic event requirement, because no event threatened death or serious injury. Id. at 51. The events more closely parallel the facts alleged by Glynn Moore, whose companion case was consolidated with Patterson and Guadagno. See Moore v. Bd. of Trs., State Police Ret. Sys., supra, 194 N.J. at 36-37. Moore's allegations included death threats by fellow police officers, which he believed could be acted upon. Id. at 52. Duse's conduct went beyond statements and, contrary to the accepted administrative finding, cannot be characterized as representing "perfectly normal" police conduct to load and check a weapon.
Duse, a superior officer to whom appellant must report and who had earlier demonstrated his discontent and desire for retribution because appellant reported illicit conduct of a fellow superior officer, stated he might accidently shoot appellant while pointing his loaded, unchecked gun to appellant's head. This exceeds mere "death threats" because the superior's words were accompanied by very specific dangerous actions directed at appellant and no one challenged Duse's conduct because he was a superior officer.
Further, the Board's analysis that officers are trained to react to shooting incidents, including the possibility of being killed by gunfire, is unavailing. So too, is reliance on the fortuitous circumstance that "no one was hurt and [appellant] was presumably armed."
We also reject the Board's suggestion that "as a matter of law" retaliation and harassment do not qualify as a traumatic event. Every analysis must turn on its own facts, which must be judged in accordance with the standards set forth in Patterson, Richardson and Russo. Nevertheless, appellant described a specific threat of death or serious bodily injury, coupled with conduct -- the misuse of a deadly firearm aimed at appellant's head -- which constitutes a traumatic event, not "unpleasant" harassment.
We conclude Duse's conduct exposed appellant to an event of sufficient gravity to objectively cause a permanent, disabling mental injury to a reasonable person; it was neither an "inconsequential mental stressor[]" or "idiosyncratic response[]" by appellant. Patterson, supra, 194 N.J. at 49. The mental stressor event as described is "sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances." Id. at 50. Therefore, Patterson's qualified, horrific event standard has been met. Id. at 49-50.
The evidence also is undisputed that the qualifying traumatic event caused appellant to be permanently and totally disabled. Although Dr. LoPreto suggested the prior harassing events contributed to the chronic PTSD and major depressive disorder, the facts show appellant worked regularly up until June 13, 2003, when Duse pointed a gun to the back of appellant's head. The events occurred while appellant was attending to his regularly assigned duties and, despite his demonstrated animosity, Duse's lethal actions were undesigned and unexpected. Accordingly, appellant has met the objective-reasonableness standard outlined in Richardson, supra, 192 N.J. at 212-13.
Because the Board's determination did not follow the law, it cannot stand. In re Virtua-West Jersey Hosp. Voorhees, supra, 194 N.J. at 422.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION