Russo v. Bd. of Trustees

• Decision Date: 17 May 2011
• Citation: 17 A.3d 801,206 N.J. 14
• Parties: Gregory RUSSO, Plaintiff–Appellant,v.BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Defendant–Respondent.
• Court: New Jersey Supreme Court

206 N.J. 14

17 A.3d 801

Gregory RUSSO, Plaintiff–Appellant,

v.BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Defendant–Respondent.

Supreme Court of New Jersey.

Argued March 1, 2011.Decided May 17, 2011.

John D. Feeley argued the cause for appellant (Fox and Fox and La Rocca, Feeley & Associates, attorneys; Steven J. Kaflowitz, South Orange, on the brief).Eileen Schlindwein DenBleyker, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General of New Jersey, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).Justice LONG delivered the opinion of the Court.

On this appeal, we revisit our recent opinions in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189, 927 A.2d 543 (2007), and Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29, 942 A.2d 782 (2008), which addressed the standards applicable to accidental disability pensions. In Richardson, we explained that to be eligible to collect accidental disability benefits, a claimant must show each of the following:

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

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, 927 A.2d 543.]

Thereafter, in Patterson, we affirmed that a mental disability arising out of a pure mental stressor with no physical impact can qualify a member for accidental disability benefits so long as the member satisfies the Richardson 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, 942 A.2d 782.]

In this case, the member, a policeman, was involved in a terrifying fire rescue in which he was injured and the victim died. He applied for accidental disability benefits and, according to the Board of Trustees of the Police and Firemen's Retirement System (Board), satisfied Richardson and experienced a Patterson-type horrific event. Despite that, the Board denied accidental disability benefits on the ground that, although the member experienced a qualifying “horror-inducing event,” the event was “inconsequential” and “not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.” That determination, which was affirmed by the Appellate Division, was an improper application of Patterson, in which we declared that a qualifying traumatic event is, in itself, objectively capable of causing a reasonable person to suffer permanent mental injury. Ibid. Thus, the Board erred in denying the member accidental disability benefits.

I.

In 2001, Gregory Russo joined the Montclair Police Department. As a new recruit, he received training at the Essex County College Police Academy (Academy). After Russo graduated from the Academy, he was assigned to the Patrol Division of the Montclair Police Department. Russo worked the midnight shift and described his general duties as traffic stops and enforcement, responding to domestic disturbances, and crowd control.

In the early morning of November 29, 2001, while Russo was still in his first year on the force, he and Prentis Thompson, his partner and senior officer, responded to a reported house fire. Two other officers met them at the scene. The fire department had yet to arrive. The officers were informed by a crowd gathered in front of the burning home that people remained inside. Upon Thompson's order, the officers proceeded into the burning structure.

Once inside, the officers were able to locate three individuals, an adult and two children, on the first floor. They successfully escorted the individuals to safety. Russo walked them as far as the threshold before he and the others turned back into the home to rescue a man trapped on an upper floor. The officers were aware of the victim, not only because his daughter told them of his presence, but also because they could hear him coughing and crying out for help. The officers, however, could only proceed as far as the second floor landing; the intense heat and smoke prohibited them from advancing further. At that point, Russo became disoriented and started to feel dizzy and nauseous.

The fire department arrived during the attempted rescue. The firefighters entered the home, found the officers on the landing, and escorted them out of the building. Once outside, Russo and the others received first aid. Russo later received treatment for smoke inhalation at Mountainside Hospital, where he remained overnight.

Unfortunately, the victim died in the fire. While Russo was outside the house, he witnessed the firefighters remove the victim from a window and lay him on the front lawn. The man's family then confronted Russo, blaming him and the other officers for the victim's death.

Russo did not immediately return to work, taking two to three weeks off. When he returned, he experienced difficulty coping with the aftermath of the fire, despite receiving numerous awards for his bravery. Russo reported difficulty sleeping, stomach disorders, and suicidal thoughts. He had problems performing at work and used his sick time in order to avoid police contact. Russo also experienced a change in his personality—he became introverted, depressed, and short-tempered, particularly with the public. His supervisors reprimanded him for his behavior.

Following the fire, Russo sought medical treatment. He was diagnosed with Post–Traumatic Stress Disorder (PTSD) ¹ by his family doctor who prescribed Zoloft. He received further treatment from a psychologist, who administered bio-feedback treatment. Russo also underwent counseling with Dr. Arthur Weiner, who confirmed the diagnosis of PTSD. Russo was again prescribed Zoloft by another doctor, as well as Klonopin, Xanax, and Trazodone to treat his symptoms.

Russo filed an application for accidental disability retirement benefits with the Board on December 23, 2004. Following the application, the Board's expert, Dr. Howard Layman, evaluated Russo. He diagnosed Russo with PTSD, finding him “totally and permanently disabled” as a result of the November 29, 2001, “traumatic incident.”

On May 9, 2005, the Board denied Russo's application for accidental disability benefits based on its finding that Russo's experience during the house fire was not a “traumatic event” as envisioned by N.J.S.A. 43:16A–7. The Board, however, found that the fire disabled Russo and that he was unable to perform his regular and assigned duties. As a result, the Board granted him an ordinary disability pension (“ordinary disability”).

Russo appealed, requesting a hearing before an Administrative Law Judge (ALJ) and asserting that his disability was the result of a traumatic event. The case was referred to the Office of Administrative Law and proceeded to a hearing before ALJ Diana Sukovich on September 15, 2006, and May 15, 2007. The hearing most prominently featured Russo's description of the details of the fire and his ensuing traumatic response. 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.” Russo also described his emotions when he got to the second floor landing and realized that he could not proceed any further:

I was terrified. I—I couldn't—I couldn't believe that I was just—I felt like I just got hit by a truck, like I couldn't believe this was happening. I never—never wanted to be a fireman, never wanted to be put in—you know, I never would've imagined myself being put in this kind of a situation. The heat was incredible, I couldn't—it was becoming—the situation became increasingly harder to breathe, the heat and the smoke just kept getting worse.

Russo testified that when the firefighters found him he was disoriented and completely numb—“I was dizzy, nauseous, couldn't breathe, I couldn't see.” The heat was so severe that it singed Russo's uniform. He testified:

Q: ... You stated that the victim's daughter or family began yelling at you, do you recall what they were saying?

A: Yeah, they kept saying, “You killed him. You killed him. You let him die. You let him die.”

Q: How did you feel at the time?

A: I was so ashamed. I couldn't even look at her. I just tried tuning out the words. I could see your mouth moving, I just—

Q: How did you feel physically?

A: Just beaten. I—completely numb. I don't know how else to describe it.

In addition to the symptoms described above, including avoidance, suicidal thoughts, and a change in personality, Russo testified that he had trouble sleeping after the fire and had frequent nightmares: “Commonly I can hear the man in my dream crying, I can hear him coughing, just like it was at the fire and I—and I go back there, very common.”

Russo also presented the testimony of Dr. Weiner, who was offered as both an expert and a fact...