ALEX ORTIZ VS. BOARD OF TRUSTEES, ETC. (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 29, 2021
• Docket: A-2754-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2754-19

ALEX ORTIZ,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent. __________________________

Argued October 4, 2021 – Decided October 29, 2021

Before Judges Messano and Rose.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PFRS No. x-xx-xx421.

Ronald J. Ricci argued the cause for appellant (Ricci & Fava, LLC, attorneys; Ronald J. Ricci, of counsel and on the briefs; Brooke Bagley, on the briefs).

Thomas R. Hower, Staff Attorney, argued the cause for respondent (Robert S. Garrison, Jr., Director of Legal Affairs, PFRSNJ, attorney; Robert S. Garrison, Jr., on the brief). PER CURIAM

Petitioner Alex Ortiz appeals from a February 10, 2020 final decision of

the Board of Trustees (Board) of the Police and Firemen's Retirement System

(PFRS), denying his application for accidental disability retirement (ADR)

benefits pursuant to N.J.S.A. 43:16A-7. We affirm.

I.

In October 2016, Ortiz applied for ADR benefits, claiming he suffered

from post-traumatic stress disorder (PTSD) as the result of a January 22, 2016

shooting incident, while performing his duties as an officer with the Passaic

Police Department (PPD). Ortiz reported that he responded to a dispatcher's call

of a carjacking by three males, "with a handgun taking a silver Ford." Upon

approaching the car, Ortiz "heard a gunshot" and saw Officer Robert Santana

"on the ground not moving, []or responding to [Ortiz]." The rear passenger

extended his arm and pointed a handgun at Ortiz, who fired "one round" at the

passenger.

The Board denied petitioner's application for ADR benefits, determining

"his disability [wa]s the result of a pre-existing disease alone or a pre-existing

disease that [wa]s aggravated or accelerated by the work effort." The Board also

found the incident was not "undesigned and unexpected." Further, the Board

A-2754-19 2 determined Ortiz's disability "did not result from direct personal experience of

a terrifying or horror-inducing event that involved actual or threatened death or

serious bodily injury" to Ortiz or someone else. The Board found no evidence

that the incident was "objectively capable of causing a reasonable person in

similar circumstances to suffer a disabling mental injury." Accordingly, the

Board denied Ortiz's application for ADR, but granted ordinary disability

retirement benefits. See N.J.S.A. 43:16A-6.

Thereafter, Ortiz filed an administrative appeal, and the matter was

transmitted to the Office of Administrative Law as a contested case. During the

two-day hearing, Ortiz testified on his own behalf, and the parties presented

competing expert testimony on Ortiz's PTSD claim. The ALJ also considered

documentary evidence, including Ortiz's application for ADR, his job

description, police reports, and the psychologists' evaluations.

Ortiz testified consistently with the facts set forth in his ADR application

and expounded upon his background. At the time of the incident, he was a

twelve-year veteran with the PPD. In the course of his employment, Ortiz

worked "various assignments, . . . including desk duty, prisoner transport, jailer,

traffic division, hospital division, and patrol." Ortiz acknowledged that all

assignments required officers to "carry[] a gun," otherwise they "would be

A-2754-19 3 considered unfit for duty." Throughout his career, Ortiz was "involved

physically" with suspects or inmates about "ninety percent" of the time. He

made arrests "[a]ll the time." Ortiz fired his weapon on one prior occasion; he

shot and killed a dog while serving a summons and complaint.

During the present incident, Ortiz heard a "pop" that sounded like a

gunshot; he later learned another officer had struck the stolen car's window with

his baton. But Ortiz had "no doubt" one of the suspects had pointed a "chrome

gun" at him. Another officer retrieved the suspect's gun. On cross-examination,

Ortiz acknowledged he was trained, when confronting deadly force, to discharge

his service weapon "to stop the threat . . . basically, to kill the individual."

The ALJ issued a written initial decision, concluding Ortiz was not

entitled to ADR benefits because the event was neither "objectively capable of

causing a reasonable person in similar circumstances to suffer a disabling mental

injury," nor "undesigned and unexpected." In reaching her decision, the ALJ

thoroughly summarized the testimony adduced at the hearing, made findings of

fact, and surveyed the applicable law. Citing our Supreme Court's decisions in

Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29

(2008), and Richardson v. Board of Trustees, Police & Firemen's Retirement

System, 192 N.J. 189 (2007), the ALJ correctly recognized in this matter that

A-2754-19 4 Ortiz must first demonstrate he experienced a "traumatic event," see Patterson,

194 N.J. at 34, and then establish that the event was "undesigned and

unexpected," see Richardson, 192 N.J. at 212.

As to the first issue, the ALJ credited the testimony of both experts as

credible and competent, but the ALJ ultimately determined the Board's expert

was more believable because his findings "were based upon the totality of the

information that he had received and reviewed as well as his examination of

Ortiz." The ALJ also concluded Ortiz "failed to meet the burden of

demonstrating, by a preponderance of the evidence, that the permanent and total

disability was a direct result of the traumatic incident" because Ortiz suffered

from many pre-existing "stressors."

Turning to the second issue, the ALJ found Ortiz fired his service weapon

after "seeing the rear passenger point a gun at him." As such, it was "clear . . .

that Ortiz perceived he faced a credible threat of 'death or serious injury .'"

Nonetheless, that interaction was not "undesigned or unexpected." Instead, the

ALJ concluded "a police officer is trained for this very interaction and having

to deal with armed individuals is part of his duty as an officer."

Accordingly, the ALJ concluded Ortiz failed to demonstrate his disability

was directly caused by a traumatic event at work, and that the event was not

A-2754-19 5 "undesigned and unexpected." After Ortiz filed exceptions and PFRS replied,

the Board issued its final administrative decision, adopting the ALJ's initial

decision. This appeal followed.

On appeal, Ortiz argues the Board erroneously adopted the ALJ's decision,

which, he maintains: (1) failed to determine Ortiz experienced a "terrifying or

horror-inducing event"; (2) incorrectly attributed his injury to pre-existing

conditions; and (3) misapplied the law by concluding the event was not

undesigned and unexpected.

II.

"Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts

presume the validity of the "administrative agency's exercise of its statutorily

delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For

those reasons, "an appellate court ordinarily should not disturb an administrative

agency's determinations or findings unless there is a clear showing that (1) the

agency did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence." In

re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,

422 (2008). "The burden of demonstrating that the agency's action was

A-2754-19 6 arbitrary, capricious or unreasonable rests upon the [party] challenging the

administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.

2006).

"[T]he test is not whether an appellate court would come to the same

conclusion if the original determination was its to make, but rather whether the

factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Rev.,

152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Rev., 200 N.J. Super. 74,

79 (App. Div. 1985)). "Where . . . the determination is founded upon sufficient

credible evidence seen from the totality of the record and on that record findings

have been made and conclusions reached involving agency expertise, the agency

decision should be sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83

N.J. 174, 189 (1980), overruled on other grounds by Maynard v. Bd. of Trs.,

Teachers' Pension & Annuity Fund, 113 N.J. 169 (1988). That said, appellate

courts review de novo "an agency's interpretation of a statute or case law."

Russo, 206 N.J. at 27.

The PFRS provides for both ordinary disability benefits, N.J.S.A. 43:16A-

6, and accidental disability benefits, N.J.S.A. 43:16A-7. Ordinary disability

benefits only necessitate that the employee demonstrate that he is permanently

"mentally or physically incapacitated for the performance of his usual duty and

A-2754-19 7 of any other available duty in the department which his employer is willing to

assign to him." N.J.S.A. 43:16A-6(1). Alternatively, accidental disability

benefits require the employee demonstrate he "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." N.J.S.A. 43:16A -7(a)(1).

"[A]n accidental disability retirement entitles a member to receive a higher level

of benefits than those provided under an ordinary disability retirement."

Patterson, 194 N.J. at 43.

In Richardson, 192 N.J. at 212-13, the Court held that a claimant seeking

accidental disability retirement benefits must prove:

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

A-2754-19 8 5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

The Court defined a "traumatic event" as "essentially the same as what we

historically understood an accident to be—an unexpected external happening

that directly causes injury and is not the result of pre-existing disease alone or

in combination with work effort." Id. at 212.

An applicant who has suffered a "permanent mental disability as a result

of a mental stressor, without any physical impact" must meet an additional

requirement to qualify for an accidental disability retirement. Patterson, 194

N.J. at 33-34. In Patterson, the Court held:

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 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.

[Id. at 34.]

In Russo, the Court clarified that the objective reasonableness standard is

met after a petitioner has experienced a "terrifying or horror-inducing event."

206 N.J. at 33. Nonetheless, we have held that "the diagnostic criteria for PTSD

A-2754-19 9 are not identical to the Patterson requirement." Thompson v. Bd. of Trs.,

Teachers' Pension & Annuity Fund, 449 N.J. Super. 478, 495 (App. Div. 2017),

aff'd o.b., 233 N.J. 232 (2018). "[T]he Supreme Court in Patterson . . . did not

hold that any employee who obtains a PTSD diagnosis qualifies for accidental

disability benefits." Ibid.

Thereafter, the Court summarized a two-part analysis in cases of

permanent mental incapacity resulting from "an exclusively psychological

trauma." Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 426

(2018). "The court first determines whether the member directly experienced 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.'" Ibid. (quoting Patterson, 194 N.J. at 50). If the

event meets the Patterson test, the court then applies the Richardson factors to

the member's application. Ibid.

As the Court observed in Russo, "an employee who experiences a horrific

event which falls within his job description and for which he has been trained

will be unlikely to pass the 'undesigned and unexpected' test." 206 N.J. at 33.

Nonetheless, "the Board and a reviewing court must carefully consider not only

A-2754-19 10 the member's job responsibilities and training, but all aspects of the event itself.

No single factor governs the analysis." Mount, 233 N.J. at 427.

Guided by these principles, we are satisfied the Board correctly concluded

the event was not "undesigned and unexpected" as required under Richardson.

192 N.J. at 212. As the ALJ aptly concluded, Ortiz "[wa]s trained for this very

type of interaction," and his duties as a police officer included "deal[ing] with

armed individuals."

Indeed, Ortiz was a twelve-year veteran of the police force, trained in

discharging his service weapon. His duties included making arrests and physical

encounters with suspects. Some of those situations could be expected to involve

the discharging of his service weapon. That was the case here, where the officers

were called to a carjacking in progress, during which a handgun was brandished.

There was nothing here that fell outside the scope of Ortiz's general duties as a

police officer. He was not placed in a situation where he lacked equipment or

training. Given the totality of the circumstances here, it was not unreasonable

for Ortiz to anticipate that shots might be fired.

We therefore agree with the Board's decision that the event was not

undesigned and unexpected. In view of our determination, we need not reach

Ortiz's remaining contentions.

A-2754-19 11 Affirmed.

A-2754-19 12