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                           APPROVAL OF THE APPELLATE DIVISION
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                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-4084-16T2

HAL SIMPKINS,

       Petitioner-Appellant,

v.

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

     Respondent-Respondent.
________________________________

                Argued October 1, 2018 – Decided October 31, 2018

                Before Judges Fasciale and Rose.

                On appeal from the Board of Trustees, Police and
                Firemen's Retirement System, Department of the
                Treasury, PFRS No. 3-10-052444.

                John D. Feeley argued the cause for appellant (Feeley
                & LaRocca, LLC, attorneys; Pablo N. Blanco, of
                counsel and on the brief; John D. Feeley, on the brief).

                Amy Chung, Deputy Attorney General, argued the
                cause for respondent (Gurbir S. Grewal, Attorney
                General, attorney; Melissa H. Raksa, Assistant
             Attorney General, of counsel; John A. Lo Forese,
             Deputy Attorney General, on the brief).

PER CURIAM

      Petitioner Hal Simpkins appeals from a May 9, 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 benefits

pursuant to N.J.S.A. 43:16A-7. In doing so, the Board adopted the initial

decision of the Administrative Law Judge (ALJ), finding petitioner's disability

claim was not "undesigned and unexpected." We affirm.

                                         I.

      In February 2015, petitioner applied for accidental disability benefits,

claiming he suffers from post-traumatic stress disorder (PTSD) following an

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

officer. In sum, during the course of an arrest, a suspect attempted "to run

[petitioner] over with a stolen vehicle[,]" and petitioner's partner mistakenly

fired shots in petitioner's direction to prevent the suspect from striking petitioner

with the car.

      The Board denied petitioner's application for accidental disability

retirement benefits, determining "the event that caused [his] disability claim

[was] not undesigned and unexpected." The Board further found

                                                                             A-4084-16T2
                                         2
            no evidence that the event was objectively capable of
            causing a reasonable person in similar circumstances to
            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.        The ALJ also considered

documentary evidence, including petitioner's application for disability

retirement, job description, incident reports and a hand-drawn diagram of the

incident.

      The facts are essentially undisputed, and are accurately set forth , in

pertinent part, in the ALJ's initial decision as follows:

                  At approximately 2:53 p.m. on November 23,
            2014, petitioner and his partner Police Officer Al-Tariq
            Whitley were dispatched to [an intersection in the City
            of Newark] in response to a report that a sick or injured
            man appeared to be slumped over a steering wheel in a
            parked car there. Officer Whitley was driving the
            patrol car and petitioner was in the passenger seat. As
            they pulled alongside of the vehicle in question, which
            was parked at the curb, the man stirred. The officers

                                                                         A-4084-16T2
                                         3
had been advised by dispatch that the vehicle had been
reported as stolen and to proceed, therefore, with
caution. Petitioner exited the patrol car and went to the
front of the vehicle. Officer Whitley stood at the
driver's side window. The suspect locked the doors. He
appeared to be an older man, possibly homeless, with a
scruffy beard.

       Petitioner banged on the hood of the vehicle and
then took a step or two back. The suspect was not
responsive to the officers' commands. The suspect bent
down to pick up an object[,] which turned out not to be
a gun but petitioner drew his service revolver. Then the
vehicle started to move. Events transpired very fast
from there. Officer Whitley apparently thought the
suspect was going to run over petitioner. Petitioner
heard shots coming past [his head]. He next recalled
being on the other side of the street. The suspect
vehicle jumped the sidewalk and struck a tree, a street
sign and then continued down [the] street. During the
incident, the magazine of petitioner's weapon had been
ejected and he retrieved it. While he only remembered
shooting his own weapon two times, the weapon had
been fired four times. In these moments, petitioner was
very afraid of dying from either the car or the shots
fired by his partner. Petitioner went to [a hospital] for
evaluation and was then released without admission.

      Petitioner described his police training as
including the instructions that an officer should not
point and fire a weapon if a non-suspect is in the way.
He further stated that an officer is expected to fire his
weapon if there is an imminent threat until the threat is
abated.

     On cross-examination, petitioner testified that he
has been involved in apprehending dangerous and
armed suspects but in his entire career, he had never

                                                            A-4084-16T2
                           4
            been involved in a shooting. Further, he had only heard
            shots from a safe distance in the past. Petitioner had
            responded to reports of shootings several times a year.
            Auto thefts were more frequent but it is not an everyday
            occurrence that a person will be found in the stolen
            vehicle.    Petitioner described his most common
            assignments as arriving at a scene after the crime is
            completed and thereafter filing a report. In his twenty-
            one years, he had had a vehicle in "hot pursuit" maybe
            five times, and apprehended an armed suspect a similar
            number of times. In his entire career, he ha[d] never
            fired his service weapon, nor been threatened by a
            weapon or a vehicle as in this incident.

       In a comprehensive written decision issued on March 30, 2017, the ALJ

distinguished between ordinary and accidental disability retirement benefits,

particularly in the context of a psychiatric disability with a "non-physical root

cause, such as witnessing a horrific event." In doing so, the ALJ cited 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), recognizing that a

petitioner must first demonstrate that "the traumatic event is objectively capable

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

mental injury[,]" see Patterson, 194 N.J. at 34, and must then further establish

that the event was "undesigned and unexpected." See Richardson, 192 N.J. at

212.


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                                        5
      According to the ALJ, assuming the events that formed the basis of

petitioner's claim constituted "a horrifying and traumatic event," see Patterson,

194 N.J. at 50, they did not meet "the definition of unexpected in the line of

work of a police officer." See Richardson, 192 N.J. at 212-13. The ALJ

therefore recommended affirming the Board's determination, which denied

petitioner's application for accidental retirement benefits. This appeal followed.

      On appeal, petitioner contends he is entitled to an accidental disability

retirement pension because the incident meets the definition of a traumatic event

pursuant to N.J.S.A. 43:16A-7.      Further, the incident was undesigned and

unexpected and his injury resulted from a terrifying or horror-inducing event

involving threatened death or serious bodily injury.

                                      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


                                                                          A-4084-16T2
                                           6
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).

      "[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) (internal quotation marks omitted) (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). 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


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                                        7
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, the

Court held that a claimant for 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

            5.    that the member is mentally or physically
            incapacitated from performing his usual or any other duty.

            [192 N.J. at 212-13.]

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

historically understood an accident to be—an unexpected external happening



                                                                           A-4084-16T2
                                        8
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 an accidental disability retirement. Patterson, 194

N.J. at 33. 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 (internal quotation marks omitted). 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


                                                                          A-4084-16T2
                                        9
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,

            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).]

      Here, assuming arguendo, as did the ALJ, that petitioner satisfied

Patterson, he did not satisfy the Richardson factors. Ibid. In particular, as the

ALJ correctly concluded, the events "d[id] not come within the definition of

unexpected in the line of work of a police officer." See Richardson, 192 N.J. at

212-13. 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.


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                                       10
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 events were not

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

Petitioner was a trained police officer. Specifically, he was a twenty one-year

veteran, trained in discharging his service weapon when faced with an imminent

threat, and in evading suspects "engag[ed] in using a vehicle as a weapon."

Among petitioner's duties were making arrests and investigating street crimes,

including stolen vehicles. 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. He was not placed in a situation where he lacked equipment or training.

Rather, given his patrol duties, it was not unreasonable for petitioner to

anticipate that violence might occur.

      Having carefully considered petitioner's job responsibilities and training,

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

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                                        11
adopting the findings of the ALJ was not arbitrary, capricious or unreasonable.

Indeed, as the ALJ aptly noted, "If every police officer who was ever near the

line of fire or had to take evasive action in trying to arrest a dangerous suspect

qualified for accidental disability retirement [benefits] after each such event,

police departments around this State would be quickly decimated."

      Affirmed.




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