Opinion
DOCKET NO. A-2362-14T2
09-08-2016
GEORGE GARRETT, Petitioner-Appellant, v. POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
David B. Beckett, attorney for appellant. Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph F. Dorfler, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Gilson. On appeal from the Police and Firemen's Retirement System, Docket No. 3-10-040854. David B. Beckett, attorney for appellant. Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph F. Dorfler, Deputy Attorney General, on the brief). PER CURIAM
George Garrett, a former senior corrections officer, appeals from an October 9, 2014 initial decision that was deemed to have been adopted as a final decision by the Board of Trustees, Police and Firemen's Retirement System (PFRS). The Board had previously found that an event on February 12, 2009, during which an inmate threw a tray of feces into Garrett's face, caused Garrett to be disabled. The Board, therefore, had granted Garrett ordinary disability benefits, but denied him accidental disability benefits because the disability did not result from a direct personal experience of a terrifying or horror-inducing event. Garrett administratively appealed the second determination regarding accidental disability, and the Board referred the matter to the Office of Administrative Law (OAL) to determine the limited issues of whether Garrett's psychological disability was precipitated by a physical injury during the event or whether the event was terrifying or horror-inducing to a reasonable person.
The Administrative Law Judge (ALJ) did not answer those questions. Instead, the ALJ denied accident disability retirement benefits based on a finding that Garrett did not prove his psychological disability was a direct result of the February 12, 2009 event. In making that determination, the ALJ found that Garrett suffered no physical injuries requiring medical treatment as a result of the incident on February 12, 2009. We, therefore, remand this matter to the Board for a determination of whether a reasonable person would have found the events of February 12, 2009 terrifying or horror-inducing. See Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 33-34 (2008).
I.
We discern the facts from the record established before the ALJ. While the ALJ did not answer the specific fact questions referred to him by the Board, he did conduct a hearing and make certain fact-findings.
Garrett was a corrections officer from 1991 to 2009. On February 12, 2009, he was working in the management control unit of Trenton State Prison. While patrolling the unit, he observed what he believed to be an inmate attempting suicide in an individual cell. Garrett gave notification, took a baton, and entered the cell as backup assistance was arriving. As Garrett entered the cell, he was struck in the face with a food tray containing feces and a liquid substance. A physical altercation ensued during which Garrett struck the inmate with his baton, and the inmate punched and kicked Garrett. The inmate was, thereafter, subdued by Garrett and the backup officers.
Following the incident, Garrett went to the prison's medical unit where he was cleaned up. Later that same day, he went to a hospital, and after being examined in the emergency room, he was released without medical treatment. The next day, Garrett noticed a bruise under his left eye and that his eyes were red. He returned to the hospital, where blood was drawn for testing. Garrett was then informed that he could return to work without restriction. Garrett was also advised to have his blood tested in four to six weeks and again in four to six months.
Three days later, on February 16, 2009, Garrett visited a health center. He was informed that he would probably not suffer any ill effects from the February 12, 2009 incident, and he was again advised to have follow-up blood testing. He was also again told that he could return to work without restriction.
The record does not contain a discussion of the February 13, 2009 blood test, from which we infer that the test did not disclose any problems. Additionally, there was no evidence that Garrett had his blood tested after February 13, 2009.
Garrett, however, claimed emotional harm. He reported that he feared for his life during the incident because he could not see and he did not know if the inmate had a weapon. Garrett also testified that he had high anxiety because he was fearful that he might have been exposed to an infectious disease from the inmate. Due to these emotional stresses, Garrett stopped working in February 2009. The Department of Corrections also sent Garrett for counseling with a psychologist.
In July 2009, Garrett applied for accidental disability retirement benefits based on the February 12, 2009 incident. In August 2010, the Board denied Garrett's application for accidental disability, but granted ordinary disability benefits upon finding him totally and permanently disabled from the performance of his regular and assigned duties. The Board determined that the disability incident was identifiable as to time and place, and was undesigned and unexpected. Moreover, the Board found the disability was caused by circumstances external to Garrett, was not the result of pre-existing disease, was the result of Garrett's performance of his duties, and was not the result of willful negligence. Nevertheless, the Board denied accidental disability retirement benefits because Garrett's disability 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 similar serious threat to the physical integrity of Garrett or another person.
Garrett administratively appealed that decision, and in October 2010, the Board transferred the matter to the OAL as a contested case. An ALJ conducted a hearing on three separate days in 2011 and 2012. During that hearing, Garrett testified and presented testimony from Dr. Raymond F. Hanbury. Dr. Hanbury diagnosed Garrett with post-traumatic stress disorder. The Board presented testimony from Dr. Stephen D. DeFronzo, a medical doctor who was qualified as an expert in infectious disease and Human Immunodeficiency Virus (HIV).
The ALJ initially closed the record on March 13, 2013, reopened the record, and closed it again on October 30, 2013. The ALJ issued his initial decision a year later on October 9, 2014. The ALJ found that Garrett's psychological disability was a pre-existing condition and not directly caused by the event on February 12, 2009. The ALJ also found that "any physical injury [Garrett] suffered during the February 12, 2009 incident was minor and resolved in a day or two and did not lead to any disabling condition." The ALJ, however, did not expressly determine whether the event satisfied the standards set forth in Patterson, supra, 194 N.J. at 34. In that regard, the ALJ did not make a factual determination of whether the event of February 12, 2009 would cause a reasonable person to become disabled because it was 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 person or another person. See ibid.
Garrett filed exceptions to the ALJ's decision with the Board. The Board, however, did not issue a final agency determination within forty-five days after the ALJ's initial decision was issued. As a consequence, the initial decision was deemed adopted as a matter of law on November 24, 2014, in accordance with N.J.S.A. 52:14B-10(c).
After the forty-five-day period had expired, the Board requested an extension to issue a final agency determination, but that request was denied. The Board then moved for reconsideration before the director of the OAL. Garrett opposed the request for an extension and the OAL director denied the extension. Garrett now appeals the ALJ's initial decision that has been deemed adopted by the Board.
II.
On this appeal, Garrett makes three arguments: (1) the Board erred in its initial determination that Garrett needed to satisfy the reasonable person test set forth in Patterson; (2) the ALJ's decision was contrary to the Board's referral and should not be considered; and (3) the proofs established that Garrett is entitled to an accidental disability retirement pension. In essence, Garrett asks us to hold that his psychological trauma was related to a physical injury. We decline to make such a ruling on this record and we are not persuaded by any of Garrett's arguments.
We begin with a summary of the legal principles that guide our analysis. A claimant seeking accidental disability retirement benefits must prove five factors:
1. that he [or she] 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 [or her] usual or any other duty.
[Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007); see also N.J.S.A. 43:16A-7.]
In Patterson, our Supreme Court added another requirement to the test to be applied when the claimant's injury is a mental disability precipitated by an exclusively mental stressor. Patterson, supra, 194 N.J. at 34. For such "mental-mental" stressor cases, the claimant must show that the nature of the traumatic event was "objectively capable of causing a reasonable person . . . to suffer a disabling mental injury" before further inquiry under the Richardson test is warranted. Patterson, supra, 194 N.J. at 33-34; see also Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 32 (2011). Whether an event is objectively traumatic depends on whether the disability "result[ed] 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." Patterson, supra, 194 N.J. at 34.
In situations where the claimant suffers psychological trauma, as well as "physical trauma that require[s] medical treatment," we have concluded that a claimant is not required to meet the additional standards imposed by Patterson because the disability was not "precipitated by 'an exclusively mental stressor.'" Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 19, 21 (App. Div. 2013) (quoting Patterson, supra, 194 N.J. at 50).
Here, Garrett argues that he suffered physical injuries and, therefore, he should not be required to meet the additional criteria of Patterson. Garrett, however, is misreading Caminiti. The critical fact in Caminiti was that the claimant "suffered physical trauma that required medical treatment." Caminiti, supra, 431 N.J. Super. at 19. In other words, some physical contact or minor injury is not enough. To avoid the application of Patterson, the psychological disability must be linked to a physical injury that requires medical treatment. In this case, the ALJ expressly found that Garrett suffered no physical injury that required medical treatment. Specifically, the ALJ found that Garrett was examined by a nurse and at a hospital and "released without treatment." The ALJ went on to state: "I also FIND any physical injury [Garrett] suffered during the February 12, 2009 incident was minor and resolved in a day or two and did not lead to any disabling condition."
Thus, the ALJ found that Garrett's physical injuries did not suffice to precipitate his psychological disability. The Board argues that we can infer from that finding that Garrett cannot meet the reasonable person test. We reject that proposition. The ALJ did not address the specific test required under Patterson. That test is whether a reasonable person having a tray of feces thrown in his or her face would find that event "a terrifying or horror-inducing event that involves actual or threatened death or serious injury." Patterson, supra, 194 N.J. at 34. Since that fact question has not yet been decided, the record before us is insufficient to affirm the Board's adoption of the ALJ's decision. Thus, we remand this matter to the Board for the factual determination of whether a reasonable person having a tray of feces thrown in his or her face would find that event "a terrifying or horror-inducing event that involves actual or threatened death or serious injury."
Finally, our remand is not an extension for the Board to issue a final agency decision on the ALJ's initial decision that was issued on October 9, 2014. The OAL director has already denied a motion for such an extension under N.J.S.A. 52:14B-10(c). Nevertheless, because the Board's final decision does not contain the necessary fact-finding under Patterson, we remand this matter for a new proceeding. The Board must refer this matter back to the OAL for a contested hearing on the Patterson test.
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION