Opinion
DOCKET NO. A-5653-08T2
08-01-2011
JOSEPH J. JANETTA, Appellant, v. TEACHERS' PENSION AND ANNUITY FUND, Respondent.
Ned P. Rogovoy, attorney for appellant. Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa D. Kutlin, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, Department of Treasury, Docket No. TPAF 395766.
Ned P. Rogovoy, attorney for appellant.
Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa D. Kutlin, Deputy Attorney General, on the brief). PER CURIAM
Appellant, Joseph J. Janetta, appeals from the June 5, 2009 Final Determination of the Board of Trustees of the Teachers' Pension and Annuity Fund (Board) denying his application for accidental disability retirement benefits. In reaching its determination, the Board adopted the Initial Decision of the administrative law judge (ALJ), which affirmed the Board's original decision to deny the benefits. Appellant argues that the ALJ and the Board erred in finding that he did not experience a traumatic event and that he is not permanently and totally disabled. We reject these arguments and affirm.
Appellant was employed as a social worker and counselor since 1986 at the Atlantic County Vocational School. Appellant had been so employed for nineteen years and was fifty years old when the alleged traumatic event occurred on November 3, 2004. Appellant's regular responsibilities involved counseling students, either one-on-one or in groups, about colleges, jobs, or conflicts between students. This is an alternative school, and many of the students were classified as having special needs. The student body consisted of ninth to twelfth graders ranging from about fourteen to twenty-one years of age.
On November 3, 2004, appellant was assigned to supervise the students in the cafeteria during lunchtime. Two students engaged in a verbal altercation, which then escalated to a physical one. A group of students then joined in and began throwing chairs and tables, and kicking and punching their opponents. This was apparently a racially-based dispute between a group of Hispanic students and a group of African-American students. There is no evidence to suggest that any of the students involved in the altercation were armed with any weapons.
Appellant and a security officer intervened to attempt to break up the fight. Appellant escorted one student to the school office, left that student there, and instructed the secretary to call the police. He then returned to the cafeteria, where he observed that the situation had worsened. He again intervened, attempting to break up another fight. He got caught up in the melee and was pushed against a wall and then to the floor. Some students involved in the fight fell on top of him, and apparently did not know he was there.
None of the students were punching or kicking appellant, and none of their aggression was directed at him in any way. He was merely indirectly caught up in the fracas. He contends he was on the floor for fifteen to twenty minutes. He said the most terrifying aspect of the incident was that he and the security officer had no control over the students.
Eventually, the police arrived, and the fight was brought to a conclusion. Appellant suffered some minor contusions of the shoulder, back and hip, for which he was treated by an orthopedic physician. Appellant does not claim disability resulting from these physical injuries, which resolved uneventfully.
Appellant claimed he was extremely upset by this incident, and developed an intense fear of returning to the school. On November 13, 2004, appellant began a course of treatment with Dr. Manya Bean, a psychologist. Over the next four years, he had about fifty-six visits with her.
Appellant never returned to work at the school. He ceased his employment with the school in June, 2005, when he applied for accidental disability benefits. However, since 2003, appellant had been working part-time as an adjunct professor, teaching psychology courses at Cumberland County College and Gloucester County College. He continued in that employment. More particularly, during the time of the administrative proceedings, he was working at Cumberland County College two hours one day per week and four hours on another day; at Gloucester County College he was working one day per week, for approximately four hours.
The classes he taught had about eight to twenty-five students in them. Although the ages of the students covered a broad range, the students at both colleges included some high school students and others in the "traditional" range for college students of eighteen to twenty-one years of age. Therefore, some of the students he was teaching were in the same age group as those at the Atlantic County Vocational School.
Appellant is a musician, and he continued to perform in coffee shops and jazz clubs one to three times per month.
Prior to the November 3, 2004 incident, appellant had never treated with a psychologist or psychiatrist or had any kind of psychological or post-traumatic stress disorder (PTSD). Dr. Bean diagnosed appellant with PTSD. She described his disturbed sleep patterns and dreams he reported regarding the incident. When reliving the event in his mind, appellant would cry and wonder if he would ever be able to return to work. He also described an intense fear of being around people, and he made lifestyle adjustments to avoid crowds of young people. He said that when he did encounter crowds of young people, he felt paralyzed and feared for his safety.
According to Dr. Bean, these symptoms were consistent with PTSD. She opined that his symptoms of anxiety, depression, night terrors, and inability to focus would continue on a permanent basis. She was of the view that he should not return to teaching in a high school environment. She explained that teaching at a college was a materially different job than providing counseling in an alternative high school, noting that college students are usually better motivated to pursue academic achievements, whereas students in an alternative school are problematic to deal with.
She acknowledged that she was not aware that some of the students appellant had taught at Atlantic County Vocational School were between eighteen and twenty-one years of age, which was the same as some of the students he was teaching at the colleges.
Appellant underwent an evaluation by a psychiatrist, Dr. Edward H. Tobe, who saw him on one occasion. Dr. Tobe agreed with Dr. Bean's diagnosis of PTSD. He also shared Dr. Bean's view that as a result of this condition, appellant would be unable to tolerate the environment of a high school. Further, Dr. Tobe opined that appellant's condition was directly attributable to the November 3, 2004 incident. Finally, Dr. Tobe opined that the effect the incident had on appellant was the effect that the incident would have had on any reasonable person.
At the request of the Board, appellant was evaluated by Dr. Walden M. Holl, a psychiatrist. Dr. Holl saw appellant on one occasion. He opined that appellant was not suffering from PTSD, but from an adjustment anxiety disorder. Dr. Holl did relate this disorder to the November 3, 2004 incident. However, he opined that this disorder was relatively mild and would not prevent appellant from returning to his work as a counselor at the Atlantic County Vocational School.
Dr. Holl explained that appellant exhibited an absence of certain symptoms that are characteristic of PTSD, such as suicidal or homicidal thoughts, excessive alcohol or drug use, and unusual weight gain or loss. He also explained that someone with PTSD would exhibit much more severe agitation than appellant exhibited and would not be able to function in an employment context. On the contrary, appellant was functioning well in his employment as a college teacher and as a musician.
Dr. Holl opined that appellant was not permanently and totally disabled from serving as a high school counselor or from continuing to work at a community college or in another similar school setting.
The ALJ received the live testimony of appellant and reviewed the video depositions of the three medical experts.
In his May 18, 2009, Initial Decision, applying the test laid down in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29, 34 (2008), the ALJ concluded
that while that incident was not a pleasant experience, it does not meet the standard for determining it to be a traumatic event as established by the Patterson [C]ourt, since I cannot find [appellant]'s disability resulted from an experience that was either terrifying or horror inducing, nor did it involve any actual or threatened death or serious injury. He was not the victim or intended victim of a physical act, nor was anyone seriously injured during the fight at school.
The ALJ further found that appellant failed to prove that he was permanently and totally disabled. Relying on Bueno v. Board of Trustees, Teachers' Pension and Annuity Fund, Division of Pensions and Benefits, 404 N.J. Super. 119 (App. Div. 2008), certif. denied, 199 N.J. 540 (2009), the ALJ noted that because appellant was not disabled from teaching for other employers, he had not established that he was permanently and totally disabled for purposes of the availability of disability benefits. The ALJ noted that appellant was able to teach at two county colleges, where he would have larger groups of students in his classes than he had as a school counselor at the Atlantic County Vocational School. Appellant did not express any difficulties in performing his teaching duties at the colleges, nor in his occasional music performances in public venues.
On June 5, 2009, the Board issued its Final Determination. Based upon its review of the record, it adopted the ALJ's Initial Decision.
Our role in reviewing an agency decision "'is a limited one'". In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to the decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. In re Distrib. of Liquid Assets, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp. , 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)); Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Brady, supra, 152 N.J. at 210-11; In re Petition of S.D. for Removal From the Voluntary Self-Exclusion List, 399 N.J. Super. 107, 121 (App. Div. 2008) (citing In re Musick, 143 N.J. 206, 216 (1996)); Boardwalk Regency Corp. v. N.J. Casino Control Comm'n, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's "'findings . . . could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
The determination of an agency is presumed valid and "[t]he burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests on 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). See Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). "[I]t is not our function 'to substitute [our] independent judgment for that of [an] administrative' agency, such as [the Board], 'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)).
Applying this highly deferential standard, we are satisfied from our review of the record that the factual findings made by the ALJ and adopted by the Board are well supported by substantial credible evidence in the record.
The Patterson test, which the Supreme Court recently reaffirmed in Russo v. Board of Trustees, Police and Firemen's Retirement System, 206 N.J. 14 (2011), must be satisfied as a first step in the analysis for qualification for accidental disability benefits. Id. at 32. Thus, "[w]here no qualifying traumatic event occurs, the potential for a mental-mental accidental disability benefit is eliminated." Ibid.
In this case, the ALJ and the Board considered appropriate factors in support of their finding that the November 3, 2004 incident did not qualify as a traumatic event. There were no weapons involved in this altercation between students. None of the combatants directed any of their aggression toward appellant, and none of them punched, kicked or struck him in any manner. He was merely caught up in the disturbance making a good faith effort to quell it. In the course of doing so, he was inadvertently pushed around, knocked to the floor, and pushed against a wall, causing some minor bruising. There is no doubt, as the ALJ found, that this was a disturbing episode for appellant. However, no one in this fracas was killed or seriously injured, and the finding that there was no objectively reasonable threat of death or serious injury was supported by the evidence.
Further, the finding by the ALJ and the Board that appellant was not totally and permanently disabled is also supported by the record. Throughout the several years that this matter was pending administratively, appellant continued to regularly work three days a week as a college teacher. Thus, the evidence was compelling that he is not disabled from working as a teacher. See Bueno, supra, 404 N.J. Super. at 131.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION