Opinion
DOCKET NO. A-1907-14T2
10-03-2018
CHRISTOPHER MOUNT, Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent.
M. Scott Tashjy argued the cause for appellant (The Tashjy Law Firm, LLC, attorneys; M. Scott Tashjy, of counsel and on the briefs; Erik K. Yngstrom, on the briefs). Amy Chung, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Chung and Joseph F. Dorfler, Deputy Attorneys General, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Rothstadt and DeAlmeida. On appeal from the Board of Trustees, Police and Firemen's Retirement System, Docket No. 3-10-42968. M. Scott Tashjy argued the cause for appellant (The Tashjy Law Firm, LLC, attorneys; M. Scott Tashjy, of counsel and on the briefs; Erik K. Yngstrom, on the briefs). Amy Chung, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Chung and Joseph F. Dorfler, Deputy Attorneys General, on the briefs). PER CURIAM
In an earlier unpublished opinion, we affirmed respondent, Police and Firemen's Retirement System's Board of Trustees' (Board) rejection of petitioner, retired police officer Christopher Mount's application for accidental disability retirement benefits. See Mount v. Bd. of Trs., Police and Firemen's Ret. Sys., No. A-1907-14 (App. Div. June 28, 2016) (Slip op. at 11). As stated in its final decision, the Board adopted an administrative law judge's (ALJ) initial decision finding, that the January 10, 2007 incident that Mount claimed caused his disability was not "undesigned and unexpected," as required under Richardson v. Bd. of Trs., Police and Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007). After we affirmed, the Supreme Court granted Mount's petition for certification and reversed, concluding that "Mount confronted an incident that was undesigned and unexpected, and therefore satisfied that component of the Richardson test. . . ." Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 428 (2018). However, the Court observed that its decision did "not entirely resolve this appeal." Ibid.
Citing to "N.J.S.A. 43:16A-7(1) (imposing requirement that member prove he or she 'is permanently and totally disabled as a direct result of a traumatic event')," "[Patterson v. Board of Trustees, State Police Retirement System], 194 N.J. 29, 50, (2008) (requiring that member's disability 'result from direct personal experience' of qualifying traumatic event)," and "Richardson, 192 N.J. at 213 (mandating that member prove disability was 'a direct result' of qualifying traumatic event)," the Court observed that the ALJ made a "causation finding" that Mount failed to satisfy his "burden . . . to demonstrate that his . . . mental disability directly resulted from the qualifying traumatic event." Ibid. However, it also found that there was "no medical proof from either party" in the record of the hearing before the ALJ to support the finding. Ibid. The Court also noted that "the Board did not address that finding, and the Appellate Division panel did not reach the question whether Mount proved that his mental disability directly resulted from the January 10, 2007 [event]," leaving "[t]he issue of causation . . . unresolved." Ibid. For that reason, the Court directed us on remand to consider "whether Mount's disability directly resulted from the January 10, 2007 incident. If the panel determines that the record is inadequate for that determination, it may remand the case so that the parties may supplement the record on that issue." Ibid.
The details of the tragic January 10, 2007 incident that involved three teenagers dying in a car explosion witnessed by Mount are set forth in the Court's opinion. See Mount, 233 N.J. at 408-10. The ALJ stated his finding that Mount's disability was not caused by the incident as follows:
I cannot find that the petitioner's disability was solely and directly related to his experience with incident in question. Petitioner testified that he directed traffic after witnessing the scene of the accident and he continued to work without a problem until some two years later. He conceded that in 2009 he was dealing with alcohol abuse and other personal problems. He acknowledged that he had witnessed at least one fatality before the 2007 incident, as well as other horrific car accidents where individuals were severely injured. There was no direct link shown between the incident of January 10, 2007, and petitioner's disability.
After our receipt of the Court's remand and in response to our request, the parties submitted supplemental briefs setting forth their positions about whether the record supported the ALJ's determination, which the Board seemingly adopted. In his brief, Mount contends that the issue of "medical causation" was not an issue that the Board asked the Office of Administrative Law (OAL) to resolve in its referral because the Board already determined the incident caused his disability, awarded him ordinary disability benefits, and its determination was not the subject of an appeal by either party. For that reason, Mount argues the ALJ's finding as to causation "was not based upon the evidence and was outside the scope of N.J.A.C. 1:1-18.1(a)." The Board disagrees, arguing that "because the record does not include any medical [evidence]," we should remand the matter to "the Board for fact finding." We disagree with the Board's contention.
The regulation states:
(a) Except as provided in N.J.A.C. 1:1-18.9, when a case is not heard directly by an agency head, the judge shall issue an initial decision which shall be based exclusively on:
1. The testimony, documents, and arguments accepted by the judge for consideration in rendering a decision;
2. Stipulations; and
3. Matters officially noticed.
[N.J.A.C. 1:1-18.1(a).]
At oral argument before us on the remand, the Board took a different position, contending that we should affirm the Board's decision as it was Mount's burden to present evidence before the ALJ in order to establish causation, which he failed to do.
We conclude that the Board's adoption of the ALJ's determination about causation was in error. The Board had previously resolved the issue in its earlier determination and the ALJ's consideration of the issue was outside the scope of the referral made by the Board to the OAL. Moreover, the ALJ's finding was not supported by any evidence in the record. We therefore reverse the Board's determination.
At the outset, the parties and we concur with the Court's conclusion that there was no evidence adduced at the hearing before the ALJ relating to medical causation and that neither the Board nor we addressed the issue. However, the parties did not address the issue of causation at the hearing because they previously agreed that there was no dispute as to causation based on the Board's earlier determination that Mount's total disability was caused by the incident. The only dispute was whether Mount was entitled to accidental disability retirement benefits because the incident was "undesigned and unexpected."
The fact that causation was not the subject of the parties' dispute was confirmed by the Board's August 9, 2011 referral to the OAL. That letter was marked as a joint exhibit at the hearing before the ALJ and stated that, after the Board received Mount's appeal from its earlier denial of accidental disability retirement benefits, it had "reconsidered and reaffirmed its previous denial," but decided to grant Mount's request for a hearing to appeal its determination and, because the matter was contested, it required a hearing in the OAL.
Although not part of the record before the ALJ, a June 10, 2014 letter from the Board to Mount's attorney, which was copied to a Deputy Attorney General, confirmed the Board's earlier determination that Mount's total disability was caused by the January 10, 2007 event, but stated that the event failed to meet the requirements for awarding accidental disability benefits because it was not a "terrifying or horror-inducing threat" and was not considered "undesigned and unexpected."
The decision that the Board "reaffirmed" was originally set forth in its June 14, 2011 letter to Mount, which was also marked as a joint exhibit at the hearing before the ALJ. In that letter, the Board explained that while it found that Mount was "totally and permanently disabled from" performing his duties and that "the event that caused [his] reported disability [was] identifiable as to time and place," because "the event occurred during and as a result of [his] regular or assigned duties," it was "not undesigned and unexpected." According to the Board, it
The Board evidently relied upon an April 18, 2011 report from a Medical Review Board that concluded Mount's total disability was the "direct result" of the January 10, 2007 incident. That report was based upon a "Disability Evaluation-Accidental" form that stated that Mount was "totally and permanently disabled [from] his occupation of police officer" as a result of the January 10, 2007 incident that caused him to suffer psychological issues. It identified Mount's symptoms as "[s]sleep and dream disturbances, anxiety, forced recollections, avoidance of reminders such as the accident site, impaired memory and concentration, irritability, rage attacks, depression, panic attacks, headaches and social avoidance [, and stated a diagnosis of p]ost traumatic stress disorder." That document contained information derived from the Board's psychiatrist's March 21, 2011 report that concluded Mount's "total and permanent disability is the direct result of the [January 10, 2007] accident." None of these documents were part of the record considered by the ALJ.
could find no evidence that the event was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury, as [his] disability did not result from "direct personal experience of a terrifying or horror-inducing event that involved actual or threatened harm death or serious injury, or a similarly serious threat to the physical integrity of the member or another person."
The fact that causation was not an issue to be decided by the ALJ was also confirmed at the commencement of the July 10, 2014 hearing when counsel confirmed through their written submissions and oral representations that there would be no medical evidence presented as causation was not an issue that needed to be determined. First, the parties submitted joint exhibits that included "joint stipulations" that stated all of the Board's findings, including its determination that the January 10, 2007 event caused Mount's disability, but the event did not satisfy the requirements for accidental disability benefits.
Second, counsel placed on the record their agreement that the ALJ's review was limited to the issue of whether the January 10, 2007 event that caused Mount's disability qualified as one that entitled him to accidental disability benefits. The ALJ and the parties' counsel stated the following:
THE COURT: All right. And so -- now on this . . . kind of matter there's no medical testimony. Is that correct, gentlemen?
[D.A.G.]: That's correct, here.
[MOUNT'S COUNSEL]: That's correct.
THE COURT: Both -- and there's a stipulation that . . . the incident in -- which occurred, that the Pension Board because of the incident recognized what had happened. And granted ordinary disability but not accidental disability. Is that correct?
[D.A.G.]: That is correct.
[MOUNT'S COUNSEL]: That is correct, Judge.
THE COURT: So the only issue in front of me is whether or not it meets the standards of Richardson as -- and I think the Board said it was not undesigned and unexpected. Correct?
[D.A.G.]: Yes, Your Honor.
THE COURT: And what was the other issue again?
[D.A.G.]: Whether or not it's terrifying and horror inducing under Pat[t]erson?
[MOUNT'S COUNSEL]: Under Pat[t]erson, yeah.
THE COURT: Under Pat[t]erson. And you both concur?
[MOUNT'S COUNSEL]: We concur, Judge.
THE COURT: So that will be the only thing in front of me. Is that right?
[D.A.G.]: Yes.
[MOUNT'S COUNSEL]: Yes, sir.
THE COURT: And then -- and both side waiving any kind of medical testimony and just relying on the -- your exhibits and the testimony of the petitioner.The record does not disclose any dispute as to the accuracy of counsel's statement to the ALJ and the matter proceeded without either party addressing the issue of causation.
[MOUNT'S COUNSEL]: I think, Your Honor, . . . you're absolutely correct. The issues are legal based issues, not for Your Honor's determination. The medical testimony has already been considered by the Board. And they've used it to determine that the claimant, the petitioner is totally . . . disabled.
[Emphasis added.]
We find from this record the "disputed questions of fact, law or disposition," N.J.A.C. 1:1-2.1, that were to be decided by the ALJ did not include the issue of causation as the Board had already resolved that issue in Mount's favor. Under these circumstances and despite our limited and deferential standard of review for agency determinations, see Lavezzi v. State, 219 N.J. 163, 171 (2014); In re Stallworth, 208 N.J. 182, 194 (2011), we conclude the Board's final decision "lacks fair support in the record," warranting its reversal. Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, ___ N.J. ___, ___ (2018) (Slip op. at 10))(quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). We remand the matter to the Board for entry of an award of accidental disability retirement benefits to Mount.
Reversed and remanded. 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