Opinion
DOCKET NO. A-1463-12T1
07-17-2014
ROBERT INGRAM, Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent.
Alterman & Associates, LLC, attorneys for appellant (Jessica L. Arndt, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Chris M. Tattory, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Leone and Manahan.
On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS No. 3-10-32323.
Alterman & Associates, LLC, attorneys for appellant (Jessica L. Arndt, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Chris M. Tattory, Deputy Attorney General, on the brief). PER CURIAM
Robert Ingram appeals from a final determination of the Board of Trustees of the Police and Firemen's Retirement System (Board) that he is not entitled to accidental disability retirement benefits. We affirm.
I.
In August 2003, Ingram was a senior corrections officer assigned to patrol at South Woods Prison. On July 30, 2004, he applied for accidental disability retirement benefits. Ingram claimed a psychological disability arising from an alleged "traumatic event" that occurred on August 25, 2003, when he shot at but missed an inmate who was endeavoring to escape.
On April 12, 2005, the Board approved a disability retirement allowance but denied Ingram's application for accidental disability retirement benefits. The Board determined that Ingram did not qualify for those benefits because the incident that triggered Ingram's psychological disability was not a "traumatic event" under N.J.S.A. 43:16A-7 and relevant case law.
Ingram filed an administrative appeal, and the Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ). The matter was held pending anticipated decisions from the Supreme Court concerning the traumatic-event standard. After the Supreme Court decided 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), the Board reconsidered its decision and again denied Ingram's application. The OAL proceedings continued.
In those proceedings, Ingram testified that the patrol assignment, which Ingram had been performing for five years, required that he walk or ride around the perimeter of the prison grounds to ensure the facility was secure. Ingram explained that, on August 25, 2003, Code 99 was issued by an officer at Tower One, indicating an escape.
Ingram drove to that area and saw at least twenty-five persons chasing an inmate near the receiving gate. The inmate had already climbed over two fences. Ingram left his vehicle as the inmate was about to climb over the last fence. According to Ingram, the scene was chaotic.
Some of the officers said the escaping inmate had a weapon. Ingram observed a lump in the inmate's coat, and he believed this indicated that the inmate was armed. Ingram shouted to the inmate to stop. The inmate paused for a second. According to Ingram, the inmate had an expression that indicated, "You do what you have to do, and I'll do what I have to do." Ingram said in that moment, he thought the inmate was merely a child. He noted that he had two sons of the same age. Ingram twice asked the inmate to stop and warned that he would shoot.
The inmate had his leg over the top of the fence, and his coat was hanging on the side. Again, Ingram told the inmate to stop or he would shoot. Ingram aimed his weapon at the inmate, pulled the trigger, and fired from a distance of about thirty feet. The inmate froze. Ingram testified that he thought he shot the inmate, because the inmate stopped moving and went silent. Ingram said that, thereafter, he continued to experience the event as one in which he shot the man. Ingram believed that, if he had not fired his weapon, the inmate would have climbed over the fence and escaped into the woods.
Ingram was promptly removed from the scene, and he did not know at the time that his shot missed the inmate. Once he learned that he had not harmed the inmate, Ingram was relieved but said that thereafter he had trouble carrying out his patrol duties. Ingram stated that he could still hear the yelling and shouting. He said that every time he went to that area of the prison grounds, he would again see the inmate trying to escape over the fence. He stated that it was like a nightmare happening all over again. Ingram had treatment but could not reach the point where he could function on patrol. He then retired.
Ingram presented testimony from psychologist Dr. Howard A. Hammer, who treated Ingram for post-traumatic stress disorder (PTSD) arising from the incident of August 25, 2003. Dr. Hammer said the impact from the event was caused by Ingram's awareness that he was making a life-or-death decision about a frightened young man who reminded Ingram of his own sons. Dr. Hammer noted that individuals process events differently. He said that some law enforcement officers could experience such a shooting and move on, while others are unable to do so. He opined that Ingram's perception of the event caused it to have a horrific impact.
The ALJ issued an initial decision dated June 25, 2010. The ALJ stated that, under Patterson, a traumatic event must be one that is "objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury." Patterson, supra, 194 N.J. at 34. The ALJ found that the event in question did not meet this standard.
The ALJ noted that while anyone would be at least temporarily shaken by having to fire a weapon at another person, "the fact that the inmate was not actually harmed would ameliorate the situation for a good number of people." The ALJ said that "the transference of identity," which was Ingram's perception that he was about to kill someone who could have been his own son, "gave the event its peculiar psychological strength." The ALJ concluded that "the transference and associated trauma were an idiosyncratic response [to the incident], and therefore not within the parameters of the reasonable-person standard."
On July 13, 2010, the Board adopted the ALJ's decision and reaffirmed the denial of Ingram's application for accidental disability retirement benefits. Ingram appealed. By order dated August 9, 2011, we remanded the matter to the Board so that it could reconsider its decision in light of Russo v. Board of Trustees, Police and Firemen's Retirement System, 206 N.J. 14 (2011), in which the Supreme Court further refined the traumatic-event standard as applied to psychological injuries.
On September 21, 2011, the Board determined that Ingram had not satisfied the traumatic-event standard under the applicable case law, and again denied his application for accidental disability retirement benefits. Ingram filed an administrative appeal, and the matter was referred to the OAL for a hearing.
Dr. Hammer's testimony from the previous hearing and other documents were included in the record, and Ingram again testified about the August 25, 2003 incident. The ALJ issued an initial decision dated September 12, 2012, in which she noted that under Richardson, supra, 192 N.J. at 212-13, the applicant must show, among other things, that the incident is "undesigned and unexpected." The ALJ said that Ingram met this requirement because shooting at inmates is not an everyday occurrence for corrections officers, and being present at the scene of a shooting was horrifying.
The ALJ stated, however, that the event did not meet the "reasonable person" standard established by Patterson. The ALJ said that Ingram
had objective reason to believe momentarily that his bullet struck the prisoner, as he certainly had the credentials and training to shoot accurately and he intended to so. In addition, the prisoner froze in place, which could have caused an objective person to think the prisoner had been struck. But this is weighed against another important fact — [Ingram] did not actually shoot the prisoner.
The ALJ noted that, because the inmate was not hit by the shot that Ingram had fired, the incident did not involve the infliction of "dreadful injuries." Moreover, although Ingram did not know immediately that his shot missed the inmate, he learned later that day that he did not harm the young man.
For these reasons, the ALJ determined that the event was not one that was "objectively capable of causing a reasonable person to suffer a disabling mental injury." Patterson, supra, 194 N.J. at 50. Ingram filed exceptions to the ALJ's decision, and the Board's attorney filed reply exceptions.
The Board issued its final decision in the matter on October 17, 2012. The Board rejected the ALJ's finding that Ingram immediately believed that he shot the inmate and did not know for several hours that his shot missed. The Board said that Ingram gave conflicting versions of the events following the shooting, and there was sufficient credible evidence indicating that he knew he had not killed the inmate and was uncertain as to whether he hit him at all. The Board noted that there was evidence that other officers on the scene had to forcibly restrain the inmate, who was kicking and punching them. The Board said that Ingram was present when the officers "tried to subdue the inmate after the shooting."
The Board also modified the ALJ's finding that Ingram had experienced a terrifying or horror-inducing event. The Board said that the firing of a weapon did not rise to the level of violence required to meet the traumatic-event threshold. The Board again noted that Ingram's shot did not hit the inmate, and Ingram knew immediately that this was the case. The Board said that Ingram was never at any risk of physical harm. Thus, the Board found that the incident was not a terrifying or horror-inducing event, and Ingram's idiosyncratic response to the event caused his disability, not the event itself.
In addition, the Board rejected the ALJ's conclusion that the event was "undesigned and unexpected." The Board pointed out that, because Ingram had not shown that his disability resulted from a terrifying or horror-inducing event, there was no need to reach the question of whether the event was "undesigned and unexpected." Even so, the Board said that
There was no unexpected happening or unanticipated mishap. Mr. Ingram knew an escape attempt was a possibility and that his job of patrolling the outside perimeter of the prison was to prevent such an occurrence. Mr. Ingram admitted that the only reason he carried a weapon was because he may have been expected to use it to prevent escapes. Preventing escapes was Mr. Ingram's job, what he was trained to do and what he did on August 25, 2003. The attempted escape, the firing of his weapon, and his perception of the event along with his beliefs at the time he fired, do not constitute unexpected happenings or unanticipated mishaps. Mr. Ingram's actions were consistent with his training and experience and were to be expected. This was simply Mr. Ingram doing his job the way he was expected and trained to do it. Therefore, preventing an escape by firing his weapon was not considered an undesigned and unexpected event.
Therefore, the Board concluded that Ingram was not entitled to accidental disability retirement benefits. This appeal followed.
II.
Ingram argues that the Board erred by finding that his psychological disability was not the result of an event that is traumatic to the reasonable person. He contends that the Board erred by finding that the event that caused his disability was not "undesigned and unexpected." He further argues that the Board's decision violates New Jersey's policy of liberally construing the pension statutes in favor of employees and retirees.
The scope of our review in an appeal from a final decision of an administrative agency is limited. Russo, supra, 206 N.J. 27 (citing In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision should be upheld unless there is a "'clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Ibid. (quoting Herrmann, supra, 192 N.J. at 27-28). We are not, however, bound by the "'agency's interpretation of a statute or its determination of a strictly legal issue.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
We are convinced from our review of the record that the Board's final decision is not arbitrary, capricious or unreasonable and the decision is supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(D). We accordingly affirm the Board's decision substantially for the reasons stated by the Board in its final decision. We add the following.
Pursuant to N.J.S.A. 43:16A-7(1), a member of the PFRS is only entitled to accidental disability retirement benefits if the member 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 and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him.
In Richardson, our Supreme Court held, that in order to qualify for accidental disability retirement benefits, the PERS member must establish:
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,3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
b. undesigned and unexpected, and
c. caused by a circumstance external to the member (not the result of preexisting disease that is aggravated or accelerated by the work);
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.]
Thereafter, in Patterson, the Court established an additional test that must be met where the public employee seeks an accidental disability pension due to a psychological disability arising from a traumatic event. Patterson, supra, 194 N.J. at 34. To qualify for the benefits:
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 similar 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 is not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.
[Ibid.]
In Russo the Court again addressed the traumatic-event standard. Russo, supra, 206 N.J. at 27-33. In that case, the Board had determined that the member had experienced a terrifying or horror-inducing event that involved actual or threatened death or serious injury, but denied benefits because the event was not objectively capable of causing a disabling mental injury to a reasonable person under similar circumstances. Id. at 25. The Court determined, however, that the Board had gone "astray" because, once it is determined that a member has experienced a qualifying incident, "the objective reasonableness standard of Patterson has been met and only the Richardson factors remain to be satisfied." Id. at 33 (citing Patterson, supra, 194 N.J. at 50).
Here, the record supports the Board's determination that Ingram failed to meet the Patterson standard because the alleged traumatic event was not, as he claimed, 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. As the record shows, Ingram fired his weapon at a young inmate who was attempting to escape from the prison. The inmate was not shot and, while Ingram was still present at the scene, the inmate violently resisted being restrained by the other officers who responded to the attempted escape.
In Patterson, the Court provided several examples of events that would meet the requirement of a terrifying or horror-inducing incident. Id. at 50. The Court said that "a permanently mentally disabled policemen who sees his partner shot; a teacher who is held hostage by a student; and a government lawyer used as a shield by a defendant all could vault the traumatic event standard." Ibid. Here, the Board correctly determined that the event of August 25, 2003, was not a qualifying event because it was not comparable to the examples provided by the Court in Patterson. Ingram was never in any danger, no one was shot, and any belief that the inmate was dead or threatened with death or serious bodily injury was quickly dispelled.
Ingram contends that his mistaken belief that he killed the inmate makes the event traumatic for purposes of satisfying the applicable tests. He also contends that firing of a weapon with the intent to injure or kill another person meets the criterion that the event be terrifying or horror-inducing. However, Patterson requires actual or threatened death or serious bodily injury, not merely a firing of a weapon, or a mistaken belief that someone might have been killed or injured.
Moreover, as the Board pointed out in its final decision, Ingram's idiosyncratic response to the incident caused his disability, not the incident itself. Dr. Hammer testified that Ingram's "perception of the situation is what gave rise to . . . the disability and trauma as he experienced it." He said that Ingram perceived that shooting the inmate would be like shooting his son, and this perception caused his disability.
The record also supports the Board's determination that the incident was not "undesigned and unexpected," as required by Richardson. In Russo, the Court pointed out that if the event is one that falls within the member's job description and training, it is not likely to satisfy this criterion. Russo, supra, 206 N.J. at 33. The Court noted, by way of an example, that an emergency medical technician who came upon a terrible accident involving life-threatening injuries would not meet the "undesigned and unexpected" requirement "because that is exactly what his training has prepared him for." Ibid.
In this case, Ingram was a senior corrections officer, whose job was to ensure that inmates do not escape from the prison, and in doing so, he was required to use a firearm if necessary. Ingram had extensive law enforcement and firearms experience. He received extensive training in the use of firearms and the prevention of escapes. He carried a weapon and could reasonably be expected to use it in the performance of his duties, depending on the circumstances. Thus, the evidence supports the Board's finding that the event of August 25, 2003, was not "undesigned and unexpected."
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION