                        NOT FOR PUBLICATION WITHOUT THE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-2214-15T1

ADAM MOGUL,

        Petitioner-Appellant,

v.

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

        Respondent-Respondent.

___________________________________

              Argued February 14, 2017 – Decided           August 18, 2017

              Before Judges Ostrer and Leone (Judge Ostrer
              concurring).

              On appeal from the Board of Trustees,
              Police and Firemen's Retirement System, PFRS
              No. 3-10-048888.

              M. Scott Tashjy argued the cause for
              appellant   (The  Tashjy   Law   Firm,  LLC,
              attorneys; Mr. Tashjy, of counsel and on the
              briefs).

              Jeff S. Ignatowitz, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney;
              Melissa   H.   Raksa,   Assistant   Attorney
              General, of counsel; Mr. Ignatowitz, on the
              brief).

PER CURIAM
    Petitioner Adam Mogul appeals the January 11, 2016 decision

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

Retirement System (PFRS).               The Board found Mogul ineligible for

accidental disability retirement benefits under N.J.S.A. 43:16A-

7(1).     We affirm.

                                              I.

    Except as noted, the following facts were found by the

Administrative Law Judge (ALJ) in his October 29, 2015 decision

and adopted by the Board.                  Mogul enrolled in the PFRS when he

began his career as a police officer for the Township of Ocean

in 1994.    By 2011, Mogul reached the rank of corporal.

    On March 3, 2011, Mogul and officers Matthew Quinn and

Jeremy Samuel responded to a "well being" check of an allegedly

intoxicated and suicidal civilian.                        Through a window of the

residence, Mogul observed the civilian sleeping on the couch.

Mogul   knocked        on    the    door    of     the    residence    and   identified

himself    as   a   police         officer.        The    civilian    ignored    Mogul's

request    to   come        to   the   front      door.     Mogul     observed    as   the

civilian walked toward a table, obtained a black handgun, and

"racked the slide" as if to chamber a round.

    Mogul       drew    his      firearm,      advised     the   other   officers      the

civilian had a gun, and moved away from the door toward the


                                              2                                  A-2214-15T1
street.     The civilian opened the door and displayed the gun.

When Mogul directed the civilian to drop the gun, the civilian

aimed the gun at Mogul.         Mogul turned to obtain cover but struck

a tree, causing him to fall to one knee.

    With    his   back   to   the   civilian,      Mogul   heard    a   noise    he

equated with a "dry firing."           Mogul explained that he heard a

"click" that he knew was "a gun either being misfired or a gun

[being triggered] not having a round in it."               Nonetheless, Mogul

wondered whether he had been shot.                 Mogul turned toward the

civilian.     Mogul testified that he again told the civilian to

drop the gun and that he was just about to shoot the civilian

when he saw a projectile hitting the civilian.

    Officer Quinn observed the civilian point the weapon toward

Mogul and saw Mogul dive for cover.             Quinn heard a click which

he equated with the civilian disengaging the safety.                        Quinn

fired one shot, and the civilian fell face first to the ground.

Quinn removed the firearm from the civilian's hand and saw it

contained no magazine.

    Mogul testified he ran over to the civilian and determined

Officer   Quinn   shot   him.       Mogul   knew   he   needed     to   call    for

assistance.    The officers started first aid, but Mogul knew the

civilian was already dead.          Mogul instructed the other officers

not to touch the civilian's weapon.                Mogul testified he knew

                                      3                                  A-2214-15T1
"through protocol" he needed to take Quinn's weapon, and he did.

Mogul testified that after a detective arrived and took Quinn

away, he "became jelly," "was walking around in circles," and

"didn't know what to do."

      Following the incident, Mogul took two to three weeks off

from work.    He returned to work for an additional two years and

was promoted to Sergeant, but had difficulty with the work.                    On

November 27, 2013, Mogul filed an application for accidental

disability    retirement    benefits      based   on    the    March   3,   2011

incident.

      On July 15, 2014, the Board denied Mogul's application for

accidental disability retirement benefits, instead awarding him

ordinary disability retirement benefits.               Mogul appealed, and

the Board assigned the matter as a contested case to the Office

of Administrative Law.       The ALJ affirmed the denial on October

29,   2015,   finding      the   incident     was      not     undesigned    and

unexpected.    On January 11, 2016, the Board affirmed the ALJ's

decision.

                                    II.

      We must hew to our standard of review.            Judicial "review of

administrative   agency    action   is    limited.       'An    administrative

agency's final quasi-judicial decision will be sustained unless

there is a clear showing that it is arbitrary, capricious, or

                                    4                                  A-2214-15T1
unreasonable, or that it lacks fair support in the record.'"

Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

27   (2011)    (citation       omitted).        "A    reviewing     court    'may    not

substitute its own judgment for the agency's, even though the

court    might       have   reached      a     different      result.'"         In     re

Stallworth, 208 N.J. 182, 194 (2011) (citation omitted).

      "Generally,       courts     afford      substantial        deference     to     an

agency's interpretation of a statute that the agency is charged

with enforcing."        Richardson v. Bd. of Trs., Police & Firemen's

Ret. Sys., 192 N.J. 189, 196 (2007).                    "Such deference has been

specifically extended to state agencies that administer pension

statutes,"     because      "'a    state       agency    brings     experience       and

specialized      knowledge        to     its    task     of      administering       and

regulating       a    legislative        enactment       within     its      field     of

expertise.'"         Piatt v. Police & Firemen's Ret. Sys., 443 N.J.

Super.   80,     99    (App.      Div.   2015)       (citation     omitted).         "An

appellate court, however, is 'in no way bound by the agency's

interpretation of a statute or its determination of a strictly

legal issue.'"         Richardson, supra, 192 N.J. at 196 (citation

omitted).        Courts     "apply       de    novo     review     to   an    agency's

interpretation of a statute or case law."                        Russo, supra, 206

N.J. at 27.



                                          5                                    A-2214-15T1
                                             III.

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

receive a higher level of benefits than those provided under an

ordinary    disability         retirement."             Patterson    v.    Bd.    of   Trs.,

State Police Ret. Sys., 194 N.J. 29, 43 (2008).                            A PFRS member

is   eligible         to    "be     retired      on      an   accidental         disability

retirement allowance" 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."           N.J.S.A. 43:16A-7(1).

     "'[T]he question of what constitutes a "traumatic event"

. . . has dogged courts for generations.'"                          Thompson v. Bd. of

Trs., Teachers' Pension & Annuity Fund, 449 N.J. Super. 478, 484

(App. Div. 2017) (quoting Russo, supra, 206 N.J. at 28).                               "[O]ur

Supreme Court has redefined and applied that phrase in three

cases: Richardson, Patterson, and Russo."                     Ibid.

     This    is       a    "so-called      mental-mental"        case,      "in    which    a

purely mental stimulus results in emotional or nervous injury."

Brunell    v.    Wildwood          Crest   Police       Dep't,   176      N.J.    225,   243

(2003).     "In a mental-mental case, Patterson is the threshold

that must be met for further inquiry to be warranted."                                 Russo,

supra, 206 N.J. at 32.



                                             6                                     A-2214-15T1
      Under Patterson, supra, "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
                                                                            1
of the member or another person."                  194 N.J. at 50.                 This

"assure[s] that the traumatic event is objectively capable of

causing a permanent, disabling mental injury to a reasonable

person under similar circumstances."              Ibid.

      Here, the Board initially found, and the ALJ agreed, that

the   Patterson    threshold       was    not    met.     However,     the        Board

ultimately     found   the       Patterson      threshold     was    met.          That

conclusion is unchallenged on appeal.

      Once the Patterson threshold is met, "to obtain accidental

disability     benefits    for    a   mental     injury     precipitated         by   an

exclusively mental stressor, a member must satisfy the standards

in Richardson."        Ibid.       Under Richardson, supra, "to obtain

accidental disability benefits, a member must prove . . . that

he is permanently and totally disabled . . . as a direct result

of a traumatic event," "that the traumatic event occurred during

and as a result of the member's regular or assigned duties,"


1
  The Court commented       that "[u]nder that [Patterson] standard a
permanently mentally       disabled policeman who sees his partner
shot . . . could            vault the traumatic event threshold."
Patterson, supra, 194      N.J. at 50.

                                         7                                  A-2214-15T1
"that the disability was not the result of the member's willful

negligence,"     and   "that     the      member       is    mentally       or   physically

incapacitated from performing his usual or any other duty."                               192

N.J. at 212-13.

    For a traumatic event to qualify, it must be "identifiable

as to time and place," "undesigned and unexpected," and "caused

by a circumstance external to the member (not the result of pre-

existing    disease      that    is      aggravated         or    accelerated       by    the

work)."     Ibid. (emphasis added).                    Essentially, the traumatic

event must have been "an unexpected happening."                                 Id. at 214.

The ALJ and the Board found Mogul failed to establish that the

event was "undesigned and unexpected."                      Ibid.

    In     Russo,      our      Supreme        Court        applied       the    Richardson

framework in the context of a Patterson mental-mental case.                                 In

particular,      the     Court        explained         that        "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."                              Russo, supra,

206 N.J. at 33.        For instance, "an emergency medical technician

[(EMT)]    who   comes    upon       a   terrible       accident          involving      life-

threatening      injuries       or       death,    will          have      experienced       a

Patterson-type horrific event, but will not satisfy Richardson's



                                           8                                        A-2214-15T1
'undesigned     and       unexpected'     standard     because   that      is   exactly

what his training has prepared him for."                 Ibid.

       Like the EMT encountering a terrible fatal accident, Mogul

"experience[d]        a    horrific     event   which    falls    within        his   job

description and for which he ha[d] been trained."                       Ibid.      Mogul

had a civilian point a gun at him, momentarily thought he had

been shot, and witnessed another officer shoot the civilian.

       Mogul    was       trained    to   handle      such    incidents.           Mogul

underwent training at the police academy, received continuing

training and semi-annual firearm training thereafter, served as

a police officer for seventeen years, and was promoted in rank.

Mogul admittedly received extensive and frequent training in the

use of firearms and deadly force.                    The Board found that after

the civilian picked up the gun, Mogul drew his own firearm and

took cover as he was trained to do.                   The Board agreed with the

ALJ that "a police officer's training in the use of force and

how to take cover is a basic tool set of a police officer."

Contrary to Mogul's argument, under Russo "a member's training

must be considered."          Thompson, supra, 449 N.J. Super. at 504.

       Moreover, this was "a situation in which [Mogul] should

have   expected       to    find    himself"    in    his    duties   as    a     police

officer.       Moran v. Bd. of Trs., Police & Firemen's Ret. Sys.,

438 N.J. Super. 346, 355 (App. Div. 2014).                       The Board agreed

                                           9                                    A-2214-15T1
with the ALJ that "a police officer using deadly force, or being

present while a colleague uses deadly force, is not undesigned

or unexpected."        The Board found "having to disarm or shoot an

armed subject, while certainly stressful, is a situation police

officers       are   trained     for    and     are   expected       to     confront."

Confrontations with armed civilians are an inherent part of a

police    officer's      work,   not    "an     unexpected      happening."           See

Richardson, supra, 192 N.J. at 214.               Thus, these actions are not

undesigned and unexpected in a police officer's line of work.

    Thus, Mogul's situation was analogous to the EMT "who comes

upon a terrible accident involving life-threatening injuries or

death."         Russo,    supra,       206     N.J.   at    33.          Because      the

confrontation was "a horrific event which falls within [Mogul's]

job description and for which he has been trained," under the

Supreme Court's analysis in Russo he was "unlikely to pass the

'undesigned      and   unexpected'      test."        Ibid.       Given     Russo,      we

cannot say it was arbitrary, capricious, or unreasonable for the

Board     to     conclude      Mogul     did     "not      satisfy        Richardson's

'undesigned      and   unexpected'      standard      because     that     is   exactly

what his training has prepared him for."                Ibid.2


2
  Cf. Russo, supra, 206 N.J. at 34-35 (ruling it was unexpected
for "a newly-minted police officer" who was "completely
untrained and unequipped for firefighting" to be "ordered into a
burning building" to rescue the occupants); Thompson, supra, 449

                                        10                                      A-2214-15T1
    Mogul     argues   the   incident   was   undesigned   and   unexpected

because he was on a routine "well being" check, and he had never

been threatened with a weapon or had to shoot anyone on a "well

being" check.     However, Mogul went on the check prepared for

such eventualities: Mogul was armed and wearing a bullet-proof

vest.     Moreover, Mogul was aware the civilian was reportedly

intoxicated and suicidal.       In any event, Mogul's argument is too

narrow in focus.       Regardless of what particular event they are

responding to, police officers are expected to be prepared to

encounter armed civilians and dangerous situations.

    Mogul cites Richardson, supra, where, "[w]hile performing

the regular tasks of his job as a corrections officer, subduing

an inmate, Richardson was thrown to the floor and hyperextended

his wrist."     192 N.J. at 214.        Our Supreme Court held "[t]he

occurrence was . . . unexpected and undesigned" and "a traumatic

event."    Id. at 214-15.      The Court noted a police officer who

becomes "permanently and totally disabled during the chase [of a

suspect] because of a fall, has suffered a traumatic event."

N.J. Super. at 504 (ruling physical assaults on a teacher were
undesigned and unexpected where she had not "received training
about handling violence from special needs students"); Moran,
supra, 438 N.J. Super. at 355 (ruling that, because an engine
company firefighter's "training had not prepared him to break
into burning buildings without the battering rams and other
specialized equipment used by the truck company," it was
undesigned and unexpected that he would have to kick in a door
to rescue victims trapped inside a burning building).

                                   11                              A-2214-15T1
Id. at 213.      The Court rejected the argument "that a traumatic

event cannot occur during ordinary work effort.                   Indeed it can.

A policeman can be shot while pursuing a suspect," which would

be "undesigned and unexpected."            Id. at 214.

    Richardson's      holding,       and     its     examples,        all   involve
                                                                                      3
permanently-disabling       physical        injury     to       the     officer.

Richardson suggests it may be undesigned and unexpected for a

police officer to be shot or to receive a permanently-disabling

physical injury in pursuing and subduing a suspect.                     However, it

is not undesigned and unexpected for an officer to confront an

armed or dangerous suspect, or to use necessary force including

deadly   force   against   a    suspect.       Under     the    Supreme     Court's

analysis in Russo for mental-mental disabilities, Mogul's mental

disability    does   not       satisfy     Richardson's         "undesigned       and

unexpected"   standard     because    such    an   event       "falls    within     [a

police officer's] job description and [is an event] for which he

has been trained."    Russo, supra, 206 N.J. at 33.

3
  The other examples in Richardson, supra, also involved physical
injury that could be permanently disabling.      192 N.J. at 214
("[A] librarian can be hit by a falling bookshelf while re-
shelving books; a social worker can catch her hand in the car
door while transporting a child to court.").       Similarly, the
claimant suffered permanently-disabling physical injury in Moran
and Brooks v. Bd. of Trs. Pub. Emps.' Ret. Sys., 425 N.J. Super.
277, 280 (App. Div. 2012), where a custodian carrying a 300-
pound weight bench "heard his shoulder 'snap' as the bench fell
to the floor, which resulted in a total and permanent
disability."

                                     12                                     A-2214-15T1
     Here, Mogul did not suffer a permanently-disabling physical

injury.   Instead, Mogul confronted an armed civilian, mistakenly

believed the civilian shot him, and saw another officer use

deadly force against the civilian. 4   We cannot say the Board was

arbitrary,   capricious,   or   unreasonable   in   finding   such     a

confrontation, which resulted in no physical injury to Mogul,

was not undesigned and unexpected.

     Affirmed.




4
  Mogul was not actually shot at or wounded and did not himself
kill the civilian. There was no "firing of [Mogul's] weapon or
an exchange of gun fire" or "serious bodily injury" to Mogul or
to "another law enforcement officer employed in the same
agency."   Patterson, supra, 194 N.J. at 49 (quoting N.J.S.A.
40A:14-196). Thus, we do not address such situations.

                                13                            A-2214-15T1
OSTRER, J.A.D., concurring.

      I concur with and join in the court's opinion.                       Our Supreme

Court    has    declared      that    "a     traumatic       event"     under    N.J.S.A.

43:16A-7(1) must be "undesigned and unexpected."                         Richardson v.

Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 192

(2007).        In     a    case     involving      a    claim    for    mental     health

disability,          the    Court     clarified         that    what     qualifies      as

"undesigned and unexpected" depends on an employee's job duties

and   training:       "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."     Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206

N.J. 14, 33 (2011).

      That test constrains us to reach a harsh result in this

case.     Had the civilian pointed and dry fired his gun not at

Mogul, but at a third person, such as a visiting social worker

covered by the Public Employees' Retirement System, see N.J.S.A.

43:15A-43 (authorizing accidental disability pension), and that

worker subsequently suffered a mental disability, we might have

reached a different result.                That is because the social worker's

training       and    job     description         did   not     contemplate      such    a

scenario.        Yet,       those    most    likely     to     suffer   post-traumatic
stress disorder are public employees like Mogul, who confront

"terrifying or horror-inducing events," see Patterson v. Bd. of

Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008), as a

regular part of their jobs and become disabled despite all their

training.     See Thompson v. Bd. of Trs., Teachers' Pension &

Annuity Fund, 449 N.J. Super. 478, 508 n.3 (App. Div. 2017)

(Ostrer,    J.,   dissenting)   ("Rates     of   PTSD   are   higher    among

veterans    and   others    whose   vocation     increases    the   risk     of

traumatic    exposure      (e.g.,   police,      firefighters,      emergency

medical personnel)" (quoting American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders, 276 (5th

ed. 2013))).      Needless to say, we are bound by the Court's

precedent as we understand it.          Moscatello ex rel. Moscatello v.

Univ. of Med. and Dentistry of N.J., 342 N.J. Super. 351, 363-64

(App. Div.), certif. denied, 170 N.J. 207 (2001).




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