                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3532-16T2

DANIEL LYNCH,

          Petitioner-Appellant,

v.

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

          Respondent-Respondent.


                   Submitted January 28, 2019 – Decided February 8, 2019

                   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. 3-10-46413.

                   Alterman & Associates, LLC, attorneys for appellant
                   (Stuart J. Alterman, on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Juliana C. DeAngelis, Deputy
                   Attorney General, on the brief).
PER CURIAM

      Petitioner Daniel Lynch appeals from a March 14, 2017 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 July 2012, petitioner applied for ADR benefits, claiming he suffers

from post-traumatic stress disorder (PTSD) and panic attacks following an

incident that occurred during the course of his employment as a police officer.

In sum, on October 16, 2011 at approximately 11:45 p.m., petitioner responded

to a call that a suspect was naked, armed "with some sort of BB gun[,]" and

throwing objects over his apartment's balcony. The suspect "ha[d] been acting

strange[ly] for hours." During the course of his arrest, another officer shot the

suspect in the foot. Neither petitioner nor the other officer was physically

injured during the incident.

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

"the event that caused [his] disability claim [was] not undesigned and

unexpected." The Board further found

            no evidence that the event was objectively capable of
            causing a reasonable person in similar circumstances to

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                                       2
             suffer a disabling mental injury; as [his injury] 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 similarly serious
             threat to the physical integrity of the member or another
             person."

Instead, the Board granted petitioner ordinary disability retirement benefits.

N.J.S.A. 43:16A-6.

       Thereafter, petitioner filed an administrative appeal and the matter was

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

was the only witness to testify at the hearing. An Administrative Law Judge

(ALJ) also considered documentary evidence, including petitioner's application

for disability retirement, his job description, his hand-drawn diagram of the

incident,1 and police reports.

       The facts adduced at the hearing before the ALJ are essentially

undisputed. At the time of the incident, petitioner was employed as a police

officer with the Belmar Police Department for approximately ten years. When

petitioner and Officer Ryan Nolan knocked on the suspect's door, identifying

themselves as police, the suspect responded, "Do you know you have a [.]45

[caliber weapon] pointed at your head?" The officers then drew their weapons



1
    The diagram was not admitted in evidence.
                                                                          A-3532-16T2
                                         3
and stepped away from the door. When "[n]othing happened[,]" the officers

knocked again. Petitioner heard what sounded like "a semi[-]automatic handgun

being racked." In response, the officers backed away from the door: petitioner

moved toward the nearby stairway; and Nolan moved toward the opposite end

of the hallway.

      Thereafter, the suspect opened the door, and pointed a gun at petitioner.

Because Nolan was in petitioner's line of fire, petitioner did not fire his weapon.

Instead, petitioner jumped into the stairwell to avoid being shot, and to afford

Nolan the opportunity to take clear aim at the suspect. When Nolan fired his

weapon, the bullet ricocheted off the wall where petitioner had been standing

and struck the suspect in the foot. Petitioner claimed he would have been hit by

the projectile had he not moved into the stairwell. The suspect's weapon was

not loaded, and petitioner did not fire his weapon during the exchange.

      The October 2011 incident was petitioner's first involvement in a

shooting. He had drawn his service weapon during one prior incident, but had

never fired it. Petitioner's only experience discharging his firearm was during

his police training, which was limited to shooting paper targets.

      The ALJ issued a written initial decision finding petitioner was entitled to

receive ADR benefits.        Referencing petitioner's lack of experience in


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                                        4
"situation[s] where [he had to] tak[e] action to protect himself and his partner

from [an] armed and seemingly dangerous" suspect, the ALJ concluded "the

encounter developed into something entirely undesigned and unexpected."

Citing the test set forth by our Supreme Court in Patterson v. Board of Trustees,

State Police Retirement System, 194 N.J. 29, 33 (2008), the ALJ further

determined petitioner demonstrated he "had a 'direct personal experience of a

terrifying or horror-inducing event that involve[d] actual or threatened death or

serious injury, or a similarly serious threat to the physical integrity of

[petitioner] or another person.'"   Accordingly, the ALJ recommended that

petitioner was entitled to an ADR pension. Thereafter the Board submitted to

the Division of Pension and Benefits written exceptions to the ALJ's decision,

and petitioner submitted his responses.

      Although the Board accepted the ALJ's factual findings, it rejected the

ALJ's legal conclusion. Specifically, the Board determined petitioner did not

meet the Patterson standard, finding the mere "discharge of Nolan's gun and

ricochet of the bullet" was not a sufficient physical threat to render the event

terrifying. Further, petitioner did not fire his weapon, and was "not in the line

of fire." The Board distinguished the incident from the examples set forth in

Patterson, such as a "permanently mentally disabled policeman who sees his


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                                          5
partner shot; a teacher who is held hostage by a student; and a government

lawyer used as a shield by a defendant." Patterson, 194 N.J. at 50. The Board

also noted that "[petitioner's] injury was unlike the traumatic injury suffered in

Hayes [v. Board of Trustees, Police & Firemen's Retirement System, 421 N.J.

Super. 43, 47-48 (App. Div. 2011) (reversing the Board's decision and awarding

ADR benefits to a police officer, who responded to a call and discovered her

younger brother, a fellow officer, was shot in the face and thereafter, learned a

gang hit was put out on her life)]."

      Further, the Board determined that even if petitioner could satisfy the

Patterson standard, he could not establish that incident was an undesigned and

unexpected event.     As a police officer, petitioner received the "essential

elements of police training[,]" including use of his service weapons and the

apprehension of suspects, "many of whom are armed." Because petitioner

neither fired his weapon nor was in the line of fire, the Board concluded he failed

to demonstrate the incident was undesigned and unexpected. Accordingly, the

Board concluded petitioner was not entitled to ADR benefits. This appeal

followed.

      On appeal, petitioner argues the Board's decision was arbitrary and

capricious, because it was "based on a fabricated bright-line rule that officers


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                                        6
must always expect dangerous situations with armed suspects" and it is

"inconsistent with the Patterson (reasonable person) standard."         Petitioner

further claims the Board improperly adopted the written exceptions verbatim

from the brief filed by the Attorney General on behalf of the Board.

                                      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

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).




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                                            7
      "[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

Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 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, N.J.S.A. 43:16A-6, and accidental,

N.J.S.A. 43:16A-7(1), disability benefits. "[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 v.

Board of Trustees, Police & Firemen's Retirement Systems, 192 N.J. 189, 212-

13 (2007), the Court held that a claimant for ADR benefits must prove:

            1. that he is permanently and totally disabled;

                                                                          A-3532-16T2
                                        8
            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 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.

      A petitioner 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 ADR benefits. Patterson, 194 N.J. at 33. In Patterson,

the Court held:



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                                        9
             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 [ADR] 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

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.

      The Court has recently 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). Specifically,


                                                                           A-3532-16T2
                                        10
             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." If the event meets the
             Patterson test, the court then applies the Richardson
             factors to the member's application.

             [Ibid. (quoting Patterson, 194 N.J. at 50).]

      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 Court recently clarified in Mount that "the Board and a

reviewing court must carefully consider not only the member's job

responsibilities and training, but all aspects of the event itself. No single factor

governs the analysis." 233 N.J. at 427.

      Applying these principles here, we are satisfied the event was not

"undesigned and unexpected" as required by Richardson. 192 N.J. at 212. In

particular, as the Board correctly concluded, petitioner's "arrest of an armed

suspect [fell] within the specified duties of a police officer." Id. at 212-13.

      Specifically, petitioner was a ten-year veteran, trained in discharging his

service weapon. His duties included making arrests and investigating suspicious


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                                        11
activity.    Some of those investigations could be expected to involve the

discharging of a service weapon where, as here, the officers were faced with an

imminent threat of death or serious bodily injury. There was nothing here that

fell outside the scope of petitioner's general duties as a police officer. Petitioner

was not placed in a situation where he lacked equipment or training. Rather,

given his patrol duties, and his receipt of a dispatch call that the suspect was

armed and acting strangely, it was not unreasonable for petitioner to anticipate

that shots might be fired.

         Having carefully considered petitioner's job responsibilities and training,

and the circumstances of the events here, we agree with the Board's decision

rejecting the ALJ's legal conclusions was not arbitrary, capricious or

unreasonable.       In light of our determination, we need not reach whether

petitioner experienced a "terrifying or horror-inducing event." Russo, 206 N.J.

at 33.

         Finally, petitioner fails to direct us to any authority supporting his

remaining contention that the Board acted improperly by adopting verbatim the

written exceptions set forth in the Attorney General's brief.             We have

nonetheless considered petitioner's argument, finding it lacks sufficient merit to

warrant discussion in our written opinion. R. 2:11-3(e)(1)(E). We simply add


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                                         12
the Attorney General, as counsel for the Board, submitted the exceptions to the

Division of Pension and Benefits on behalf of the Board.       We discern no

impropriety in that submission.

      Affirmed.




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