NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5028-14T1

JACLYN THOMPSON,

Petitioner-Appellant, APPROVED FOR PUBLICATION v. April 11, 2017 BOARD OF TRUSTEES, TEACHERS' APPELLATE DIVISION PENSION AND ANNUITY FUND,

Respondent-Respondent.

____________________________________

Argued September 13, 2016 – DecidedApril 11, 2017 , 2017 Before Judges Ostrer, Leone, and Vernoia (Judge Ostrer dissenting in part).

On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, Department of Treasury.

Richard A. Friedman argued the cause for appellant (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Friedman, of counsel and on the briefs; Edward M. Suarez, Jr., on the briefs).

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

The opinion of the court was delivered by

LEONE, J.A.D. Petitioner Jaclyn Thompson alleged that she was mentally

disabled as a result of three incidents at work. She was

awarded ordinary disability retirement benefits by respondent

the Board of Trustees (Board) of the Teachers' Pension and

Annuity Fund (TPAF). She appeals the Board's June 5, 2013

decision to deny accidental disability benefits.

Our Supreme Court has held that to obtain accidental

disability benefits for a purely mental disability, "[t]he

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." Patterson v. Bd. of Trs., State Police Ret. Sys.,

(2008). The Court has applied that Patterson

requirement to a person whose mental disability resulted from an

incident where the person also suffered temporary physical

injury. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,

(2011).

Petitioner sustained no physical injuries in the three

incidents, save for "a little bit of a stomachache" which was

minor and temporary, and she required no medical treatment.

However, Thompson argues she need not meet the Patterson

requirement for mental disability because the incidents involved

2 A-5028-14T1 physical contact. She cites an Appellate Division case which

involved a potentially-fatal injury requiring debilitating

treatment. Caminiti v. Bd. of Trs., Police & Firemen's Ret.

Sys.,

(App. Div. 2013). We hold that, under

Russo, the Patterson requirement applies to claims for

accidental disability benefits for mental disability arising

from incidents involving mental and physical stressors if any

physical injury was temporary or minor. To the extent Caminiti

suggests otherwise, we must follow the Supreme Court's decision

in Russo and apply the Patterson requirement.

Because the three incidents, individually and collectively,

were not terrifying or horror-inducing events involving actual

or threatened death or serious injury, or a similarly serious

threat to the physical integrity of the member or another

person, they do not meet the Patterson requirement. Therefore,

we affirm.

I.

Petitioner testified as follows before the Administrative

Law Judge (ALJ). Petitioner was a health and physical education

teacher at North Hunterdon Regional High School. She taught

regular gym classes, coached, and served as an advisor and

mentor. She also taught adaptive gym classes specifically

geared toward students with disabilities.

3 A-5028-14T1 On January 21, 2011, during petitioner's health class, an

approximately seventeen-year-old female student with Down

syndrome began hitting a teacher's aide. When petitioner

intervened, the student became extremely irate, punched

petitioner in the stomach "very hard," and slapped her across

her face. Petitioner and another aide immediately escorted the

screaming student from the classroom. Petitioner was "a little

nervous" during the incident but figured "it happens." She went

to the nurse's office to write a report, and "kind of laid in

the nurse's office for a few minutes only because [she] had a

little bit of a stomachache." Petitioner did not seek any

medical attention and sustained no lasting physical injuries.

As class was over, she went home, but she returned to work the

next day with no ill effects.

On September 22, 2011, petitioner was teaching an adaptive

physical education class. During a Nerf pin soccer game, a

sixteen-year-old male student with autism and borderline

schizophrenia became severely angry, grabbed a pin, and

approached a teacher's aide. Petitioner approached, and the

extremely irate student "began to kind of push and shove" her

shoulders with his hands and spat on the floor. Petitioner and

an aide removed the student from the classroom. Petitioner was

not physically injured and did not seek medical attention or

4 A-5028-14T1 counseling. She went to the nurse's office, reported the

situation, and returned to work. She "was a little bit more

like nervous going in the classroom" with "a little bit" of

anxiety, and was "definitely on edge" about "what's next," but

she had no psychiatric problems.

On October 29, 2011, during another Nerf pin soccer game, a

fifteen-year-old male student with autism threw a ball at

another student. When petitioner corrected him, he became very

angry. He loudly told petitioner "You're an assh*le" and "I'm

going to kick your ass," briefly "had [her] hands behind [her]

back," then let go and threw three punches at her face, but she

dodged the punches. Teacher's aides grabbed the student and

escorted him out.

This third incident "did happen fast," but to petitioner it

"fe[lt] like forever" that her hands were behind her back. She

felt "helpless," "had no control," and "was petrified."

Afterwards, she was very upset but calmed down and finished the

class. She went to the nurse's office to report the incident.

She had no physical injuries and went on with her day.

After going home and "sleeping on it," petitioner became

"hysterical" and had "a downright almost panic attack." Her

husband, a police officer, had her call a psychologist for

police officers. The psychologist did not think petitioner

5 A-5028-14T1 "belonged in any kind of school atmosphere" and wrote a note

putting her on leave. She never returned to work.

Eight months later, petitioner filed a request for

accidental disability retirement benefits based on the three

incidents. She stated that she was afraid of turning her back

on students, and that she had panic attacks when attending her

stepson's wrestling match and when seeing a special education

class out in the community. Her psychiatrist diagnosed her with

post-traumatic stress disorder (PTSD). The TPAF Board denied

her request for accidental disability benefits but found

petitioner qualified for a deferred retirement.

Petitioner appealed to the Office of Administrative Law.

The ALJ heard testimony from petitioner, her psychiatrist, and a

psychologist called by the Board. The ALJ found petitioner did

not meet the standard for accidental disability benefits.

However, the ALJ granted her ordinary disability benefits

because, as a result of the incidents, "she became anxious,

suffering from panic attacks, nightmares, vivid dreams, severe

depression, lethargy, lack of motivation, and tachycardia." The

ALJ found that she suffered from PTSD, that medication was

ineffective at abating her symptoms, and that she was totally

and permanently disabled from the performance of her regularly

assigned duties.

6 A-5028-14T1 Petitioner appealed the denial of accidental disability

benefits. The Board affirmed the ALJ. Petitioner appeals.

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

unreasonable, or that it lacks fair support in the record.'"

(citations 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,

(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.,

(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.,

(App. Div. 2015) (citations omitted). "An

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

7 A-5028-14T1 interpretation of a statute or its determination of a strictly

legal issue.'"

(citation

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

interpretation of a statute or case law."

.

III.

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

receive a higher level of benefits than those provided under an

ordinary disability retirement."

. A TPAF member is eligible to be retired "on an accidental

disability allowance" "if said 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. 18A:66-39(c).

It is undisputed that petitioner is permanently and totally

disabled and that the three incidents occurred during and as a

result of the performance of her regular, assigned duties. The

parties dispute whether her disability was "a direct result of a

traumatic event."

A.

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

. . . has dogged courts for generations."

. Recently, our Supreme Court has redefined and

8 A-5028-14T1 applied that phrase in three cases: Richardson, Patterson, and

Russo.

In

an inmate knocked a corrections

officer to the ground, causing a complete tear of his wrist

ligament which left him physically disabled.

. The Court ruled his physical disability was the direct

result of a traumatic event.

.1 The Court held

"the traumatic event standard will . . . be met by a work-

connected 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)."

.

In

the Court addressed "whether an

applicant who has suffered a permanent mental disability as a

result of a mental stressor, without any physical impact, can be

considered to have experienced a 'traumatic event' and, if so,

what standard should apply in assessing such a claim."

. The Court held "a member must satisfy the standards in

Richardson," and "add[ed] a requirement beyond those set forth

1 The Court was considering an accidental disability statute, N.J.S.A. 43:16A-7(1), under the Police and Firemen's Retirement System (PFRS), but noted that the TPAF in N.J.S.A. 18A:66-39 "conditions the grant of accidental disability benefits on satisfying identical standards."

n.1.

9 A-5028-14T1 in Richardson: [t]he 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." Id. at 33-34, 50.

The Court in Patterson applied that requirement to three

members who were permanently mentally disabled. First, Trooper

Patterson was repeatedly insulted by an angry sergeant, and "was

fearful that if he did not submit, the sergeant would hit him."

Id. at 34-35. The Court ruled the conduct "simply did not

involve actual or threatened death or serious injury to

Patterson's physical integrity and thus failed to vault the

traumatic event threshold." Id. at 51. Second, the Court found

another trooper's exposure "to numerous incidents of racially

motivated abuse carried out by fellow officers" was inadequate,

but remanded to consider whether officers' death threats to the

trooper "qualif[ied] as a traumatic event." Id. at 36-37, 51-

52. Third, the Court found a "credible threat of rape and

murder against [a correction officer]'s wife and daughter by a

presumed gang member who knew where [he] lived and worked could

satisfy the traumatic event element of the statute." Id. at 38-

40, 53.

10 A-5028-14T1 In

the Court "revisit[ed]" Richardson and

Patterson.

. Police Officer Russo "was involved

in a terrifying fire rescue in which he was injured and the

victim died."

. Specifically, Russo tried to reach

the victim who was crying out for help, but Russo became

disoriented, dizzy, and nauseous.

.

Russo testified that the fire produced heavy smoke and incredibly intense heat: "The heat was all over. It felt like my ears were going to come right off my head, they felt like they were melting. It hurt to breathe, I could feel it everywhere. . . . [It] became increasingly harder to breathe, the heat and the smoke just kept getting worse. . . . [I] couldn't breathe."

[Id. at 21-22.]

Russo was rescued by firefighters, received first aid, and was

hospitalized overnight for smoke inhalation.

.

While still at the fire scene, Officer Russo saw the

victim's body brought out, and the victim's family "confronted

Russo, blaming him and the other officers for the victim's

death."

. Russo was unable to return to work for

weeks, was diagnosed with PTSD, and was "permanently mentally

disabled."

. The PFRS Board found Russo

"satisfied Richardson and experienced a Patterson-type horrific

event." However, the PFRS Board ruled the event was "'not

objectively capable of causing a reasonable person in similar

11 A-5028-14T1 circumstances to suffer a disabling mental injury.'"

(citation omitted).

Even though Officer Russo was physically injured, the Court

applied the Patterson requirement.

. The Court found

Russo met "the objective reasonableness standard of Patterson."

Thus, the Court reversed.

.

B.

Petitioner argues she need only meet the Richardson

standard for disability, not the Patterson requirement for

mental disability. We agree with the ALJ and the TPAF Board

that under Russo, petitioner must meet both the Richardson and

Patterson standards.

Unlike Richardson, where the officer suffered a disabling

physical injury, petitioner did not suffer a physical

disability. Indeed, the ALJ found "petitioner was not

physically injured" in any of these incidents. In the first

incident, the adolescent girl's punch and slap resulted in just

"a little bit of a stomachache." Even if it was a physical

injury, it was minor and lasted only a few minutes. In the

second incident, the adolescent boy "kind of" pushed and shoved

her shoulders with his hands. In the third incident, another

adolescent boy held petitioner's hands behind her back for a few

seconds. She concededly was not physically injured in the

12 A-5028-14T1 second or third incident and did not seek or need medical

treatment in any of the incidents.

Such minor physical contacts with little or no physical

injury, only the punch's minor and temporary effects, would not

themselves meet the Richardson standard for a disabling injury.

Under Richardson, "an applicant for accidental disability

benefits must meet 'an extraordinarily high threshold that culls

out all minor injuries; all major injuries that have fully

resolved; all partial or temporary disabilities; and all cases

in which a member can continue to work in some other capacity.'"

(quoting

).

Here, as the ALJ found, petitioner's "application is solely

based on mental diagnoses." Thus, she must rely on her

"permanent mental disability as a result of a mental stressor,"

rather than the minor, temporary physical effects. Id. at 33.

Therefore, she was required to meet the Patterson requirement.

Petitioner contends she need not meet the Patterson

requirement because there was physical contact. She cites

language in Patterson favoring her position. In Patterson, the

Court stated it "ha[s] been asked to determine whether an

applicant who has suffered a permanent mental disability as a

result of a mental stressor, without any physical impact, can be

13 A-5028-14T1 considered to have experienced a 'traumatic event.'" Ibid.

"The only issue is whether [a permanent mental] injury will be

recognized as a basis for accidental disability if it is caused

by an exclusively psychological trauma." Id. at 44-45; see id.

at 43. The Court held "permanent mental injury caused by a

mental stressor without any physical impact can satisfy the

Richardson standard." Id. at 48. The Court first ruled "a

member suffering from a so-called mental-mental injury must

satisfy the standards we recently enunciated in Richardson."

Id. at 33-34.2 The Court added "to obtain accidental disability

benefits for a mental injury precipitated by an exclusively

mental stressor, a member must satisfy" the Patterson

requirement. Id. at 34, 50.

However, in Patterson it was not clear the Court was

restricting its new requirement to such situations, rather than

simply referring to the issue before it — three members whose

mental disabilities were caused exclusively by mental stressors.

Moreover, the Court applied the requirement to mental disability

2 The Court noted "[t]he accidental disability statutes themselves do not expressly include the mental-mental category," but that workers' compensation cases recognized "the so-called mental-mental category of compensable injury."

-47 (quoting Brunell v. Wildwood Crest Police Dep't,

(2003) (defining mental-mental as "cases in which a purely mental stimulus results in emotional or nervous injury")).

14 A-5028-14T1 "without any physical impact," a term encompassing situations

where there was no physical injury or only minor or temporary

physical injury. Id. at 33, 48.

In any event, the Court's decision in Russo made clear the

Patterson requirement applies to members whose mental disability

resulted from mental stressors accompanied by temporary physical

injury. As set forth above, the Court found Officer Russo was

physically injured by the fire's heat and smoke, which caused

him pain and breathing difficulties.

. The Court emphasized "Russo experienced a qualifying

event insofar as he was ordered into a burning building so full

of intense heat and smoke that his uniform was singed," and, "in

fact, he was hospitalized for smoke inhalation" overnight.

. The Court viewed Russo's mental disability as

deriving in part from physical stressors and physical injury.3

Nonetheless, the Supreme Court required the physically-

injured Russo to meet the Patterson requirement.

, 33-

35. The Court ruled "the objective reasonableness standard of

3 The Court rejected the suggestion that Russo's mental disability "did not directly result from the horrific fire incident, but from 'guilt feelings' over the victim's death."

. Rather, the Court found "[i]t was as a result of the fire and the confluence of events it generated, including the death of the victim and the relatives' accusations, that Russo was rendered permanently mentally disabled."

.

15 A-5028-14T1 Patterson has been met" both because of the threat of death and

serious bodily injury to Russo himself and because "Russo

clearly satisfied the other Patterson standard . . . [as] he

experienced a terrifying event that presented 'a serious threat

to the physical integrity of another person,'" namely the fire's

threat to the victim.

. Thus, the Court found that

"Russo sustained his burden," that the incident "objectively

satisfied Patterson," and that Russo's "circumstances plainly

satisfied both Patterson and Richardson."

.

Indeed, the Court in Russo would have had no need to engage

in the above analysis if it believed the Patterson requirement

only applied to members whose mental disability resulted solely

from mental stressors unaccompanied by physical injury. The

Court could have simply stated Patterson did not apply to Russo

because of his temporary physical injuries. Instead, the Court

explained at length both the nature of the Patterson requirement

and how Russo carried his burden under the Patterson

requirement.

.

Moreover, the Court in Russo reiterated and emphasized the

necessity of applying the Patterson requirement to members like

Russo (and petitioner) who claim mental disability. The Court

stated: "We adopted that standard to assure the bona fides of

claimed mental injuries and to ameliorate the problem of

16 A-5028-14T1 subjectivity inherent in mental claims."

at 31 (citing

).

"In most physical disability claims, medical analysis quickly goes beyond the subjective statement by the patient to clinical and laboratory tests by the physician . . . . In psychiatric disability claims, by contrast, medical analysis to a greater degree is analysis of the subjective statement of the patient." Thus, in the context of psychological injuries, the proofs related to the traumatic nature of an event and the causal relationship between event and injury may be more problematic than in the case of a physical event. As a result the boards have expressed legitimate concerns about becoming bogged down in litigation over idiosyncratic responses by members to inconsequential mental stressors.

[Ibid. (quoting

(citation omitted)).]

"In response, [the Court] established a high threshold for

the award of accidental disability benefits" in Patterson.

"Satisfying Patterson eliminates the problem of

'idiosyncratic responses by members to inconsequential mental

stressors.'"

at 32 (quoting

).

Thus, the Supreme Court assigned an important role to the

Patterson requirement – to prevent idiosyncratic and subjective

claims of mental disability from crossing the high threshold for

the award of accidental disability benefits. The important and

necessary purpose of the Patterson requirement is served by its

17 A-5028-14T1 application as in Russo to claims based on mental disability due

to mental stressors even if accompanied by minor or temporary

physical injuries.

Here, for example, there were no clinical or laboratory

tests of petitioner's minor and temporary physical complaint.

Rather, her subjective statements provided the sole basis for

the description of her mental disability and the factual basis

for her psychiatrist's testimony.

. That made the

traumatic nature of the incidents and the causal relationship

between the incidents and her claimed injury more problematic.

Applying the Patterson requirement to petitioner and

similar claimants for mental disability properly weeds out

"idiosyncratic responses" and "limit[s] accidental disability

recovery to stressors sufficient to inflict a disabling injury

when experienced by a reasonable person in similar

circumstances."

; accord

.

As the Court recognized in

"a traumatic

event giving rise to a mental disability, like PTSD, may . . .

involve physical impact."

. In

the

Court decided such claims of mental disability had to satisfy

the Patterson requirement. To rule otherwise would allow such

mental disability claims to escape the objective test the Court

18 A-5028-14T1 required to avoid "the problem of subjectivity" and

"idiosyncratic responses."

-32 (quoting

).

Accordingly, under our Supreme Court's decision in Russo,

petitioner must satisfy the Patterson requirement. However, she

argues she is not required to do so under the Appellate Division

decision in Caminiti. However,

failed to

recognize the effect of Russo's application of the Patterson

requirement to a member suffering both temporary physical injury

and disabling mental injury.

. Instead,

Caminiti stated "[t]he Patterson standard is inapplicable where

a petitioner suffers both a physical and psychiatric injury,"

and "[t]he Board's analysis should have ended with an

application of the Richardson factors."

.

Those statements in Caminiti contravene our Supreme Court's

decision in

that the Patterson requirement was

applicable to Russo, who suffered both a physical and

psychiatric injury.

.

In any event, petitioner's case is clearly distinguishable

from Caminiti, where the member's physical injury created a risk

of death and required traumatic treatment. Officer Caminiti was

subduing a violent intravenous drug user when a needle in the

user's shirt pierced the officer's finger "from the bottom

19 A-5028-14T1 through to the nail."

.

The user, who had track marks all over his arms, said: "I'm

sorry. I just used it."

. Caminiti was immediately

afraid he was fatally infected with the AIDS virus.

Other officers tried to squeeze the blood out of Caminiti's

finger and ordered him to go to the hospital.

There,

doctors forbade him from having any sexual relations with his

wife or letting his saliva contact his children for six months.

The doctors were unable to determine if Caminiti was

infected, and prescribed "'the AIDS cocktail,'" telling him it

"'could possibly prevent [him] from contracting AIDS,'" but

"would make him 'deathly ill.'"

. While taking the

AIDS cocktail,

[h]e was constantly vomiting and became dehydrated. Eventually he obtained a prescription for a drug given to cancer patients to counteract the effects of chemotherapy and lessen the nausea. The medication also made him "jittery" and unable to concentrate. The doctor's warning concerning the physical effects of the medications did not prepare him for the emotional and psychological trauma he experienced.

[Id. at 9.]

Caminiti became "mentally incapacitated."

.

In ordering accidental disability benefits for Caminiti, we

stressed that, "[i]n addition to the physical impact of the

20 A-5028-14T1 potentially lethal needle prick, appellant endured many weeks of

physical discomfort associated with the medications prescribed

to prevent the transmission of HIV."

. "The treatment

created specific, medically anticipated, and extremely harsh

effects on his body that were similar to the effects experienced

by cancer patients who undergo chemotherapy after surgery."

We emphasized "[t]his was not an officer who accidentally

stuck himself on a straight pin while frisking a suspect's

clothes and was treated with a band-aid or experienced a minor

infection at the site."

To the contrary, the medical effect of the event was comparable to the experience of surgical intervention or extended hospitalization. It triggered serious bouts of pharmacological intervention and a prolonged period of physical discomfort and recovery. Simply stated, the record does not support the Board's finding that appellant's physical injury was "minor."

[Ibid.]

Unlike Caminiti, petitioner suffered little or no physical

injury and required no medical treatment, hospitalization, or

medication. The physical effect of the "little bit of a

stomachache" was temporary and minor and no greater than a pin

wound requiring a band-aid and resulting in minor infection,

which Caminiti was careful to distinguish. Her physical effect

21 A-5028-14T1 could not compare with Caminiti's potentially fatal injury and

hellish treatment. Even if Caminiti's physical injury and

treatment was sufficient to justify not applying the Patterson

requirement, petitioner experienced neither physical injury nor

treatment, and had to meet the Patterson requirement.

Accordingly, petitioner had to show her mental disability

"result[ed] 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."

(quoting

).

C.

We agree with the ALJ and the TPAF Board that petitioner

failed to meet the Patterson requirement. Petitioner's three

separate incidents involved an adolescent girl punching her and

slapping her face; an adolescent boy "kind of" pushing and

shoving her shoulders with his hands and spitting on the floor;

and an adolescent boy placing her hands behind her back for a

few seconds, then swinging and missing. In the first incident,

petitioner experienced only "a little bit of a stomachache,"

which the ALJ found was not a physical injury and which in any

event was minor and temporary. Petitioner admittedly was not

physically injured in the second or third incidents. She

22 A-5028-14T1 neither needed nor sought medical treatment after any of the

incidents. In each incident, petitioner was accompanied by

teacher's aides who quickly assisted petitioner in removing the

student. Considering the totality of the circumstances, we

agree with the ALJ and the Board that these three incidents,

whether considered individually or collectively, failed to meet

the Patterson requirement.

Petitioner contends the incidents were terrifying and

horror-inducing for her. However, her subjective views do not

satisfy "the objective reasonableness standard of Patterson."

. None of the incidents here were "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."

(emphasis added). The Court "impose[d] the

aforementioned limitations to assure objectivity in the

analysis."

Regarding the third incident, petitioner's psychiatrist

opined that, while her arms were behind her back, it was a

"potentially life threatening situation" because she "could have

been seriously injured" or "killed in that position." However,

her arms were no longer behind her back when the swings

occurred, and she was able to dodge them. Moreover, the

23 A-5028-14T1 psychiatrist conceded he did not even know the adolescent's age,

let alone strength. Thus, "the facts of record" do not show

that this third incident was life threatening, unlike the

burning building in Russo. Cf.

.4

Moreover, the ALJ and the Board did not find that the third

incident involved threatened death or serious injury.

Petitioner notes she was diagnosed with PTSD. However, the

diagnostic criteria for PTSD are not identical to the Patterson

requirement. In particular, our Supreme Court requires the

member show the incident involved "actual or threatened death or

serious injury, or a similarly serious threat to the physical

integrity of the member or another person."

(emphasis added); cf.

(setting forth

the DSM-IV-TR diagnostic criteria, which omit the emphasized

words). Here, the incidents did not involve threatened death or

serious injury or a similarly serious threat to petitioner's

physical integrity.

More importantly, the Supreme Court in Patterson and Russo

did not hold that any employee who obtains a PTSD diagnosis

qualifies for accidental disability benefits. In Patterson, the

4 The dissent adds "that had one or more of the three swings [by the fifteen-year-old] landed on petitioner's head, petitioner could have suffered traumatic brain injury, fractures, or sensory damage." Post at __ (slip op. at 7). However, there was no such evidence before the ALJ.

24 A-5028-14T1 Court did not equate a diagnosis of PTSD with the Patterson

requirement; rather, it simply used the history and criteria of

PTSD as a "backdrop" showing there could be "a causal

relationship between certain delineated traumatic events and a

resultant mental disorder."

. In

Russo was diagnosed with PTSD.

. Rather than

treating that diagnosis as decisive, the Court did not even

mention Russo's PTSD diagnosis in its analysis of why he met the

Patterson requirement.

.

In any event, it is the Board, not a member's psychiatrist,

which determines whether the incident meets "Patterson's

objective reasonableness standard."

. The ALJ and the

TPAF Board did not adopt the conclusion of petitioner's

psychiatrist that "any of the assaults that [she] suffered would

cause a reasonable person in her circumstances [to] suffer a

disabling injury." Further, the psychiatrist's hypothesizing

about what a reasonable person would do cannot change whether or

not "a member has experienced a qualifying incident — 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.'" See

, 31-33 (quoting

).

25 A-5028-14T1 The failure of petitioner's incidents to meet that standard

is illustrated by the Supreme Court's dispositions of the three

appeals in Patterson. Petitioner feared being hit by an angry

adolescent, but the Court held Patterson's fear of being hit by

an angry police sergeant "simply did not involve actual or

threatened death or serious injury to Patterson's physical

integrity and thus failed to vault the traumatic event

threshold."

. The adolescent

threatened to "kick [her] ass," but that pales by comparison to

the death threats and the gang member's threats to rape and

murder considered in Patterson.

.

Petitioner's incidents also bore no resemblance to the

traumatic events the Supreme Court in Russo found satisfied the

Patterson requirement. The Court stressed that Russo, "was

ordered into a burning building," where "[t]he intensity of the

fire terrified and disoriented Russo, singed his uniform, and

sent him to the hospital overnight for smoke inhalation," which

the Court viewed as a life-threatening situation.

. Moreover, the fire also presented "'a

serious threat to the physical integrity of another person' —

the victim, who suffered while crying out for help that Russo

was unable to provide and who ultimately died as a result of the

26 A-5028-14T1 fire," after which "the victim's family heaped scorn on Russo

and blamed him for their relative's death."

.

Nor did petitioner's incidents resemble the traumatic

experiences involved in the only other published case applying

the Patterson requirement. See Hayes v. Bd. of Trs. of Police &

Firemen's Ret. Sys.,

(App. Div. 2011). In

1998, after Officer Hayes and other officers tried to stop a

stolen car, it "'ran over' one of the responding officers," and

police "responded with gunfire, severely injuring the unarmed

teenage driver and killing his fifteen-year-old female

passenger" in a highly-publicized, controversial shooting.

. In a 2001 incident, while shots were being fired, Hayes

rescued a wounded officer whom she discovered "was her younger

brother, who had been shot in the face and neck. [Hayes]

cradled her brother in her arms, certain he was going to die, as

he lay on the ground bleeding profusely."

Subsequently,

Hayes "learned [that] a 'hit' had been put out on her by a

Trenton gang," and that "the driver of the vehicle involved in

the 1998 shooting had been released from prison" and might come

for her.

.

Further, petitioner's incidents do not rise to the level of

the examples given in

"Under that standard a

permanently mentally disabled policeman who sees his partner

27 A-5028-14T1 shot; a teacher who is held hostage by a student; and a

government lawyer used as a shield by a defendant all could

vault the traumatic event threshold."

.

Petitioner was not held hostage by a student. Rather, in a

classroom containing several teacher's aides, a student had

petitioner's hands behind her back for a few seconds until he

let go and was removed from the room by the teacher's aides. As

the ALJ found, the incidents, "although undoubtedly distressing,

did not constitute a terrifying or horror-inducing event in line

with the examples given by the Patterson Court."

We do not question the mentally-disabling reaction

petitioner had to these incidents. However, Patterson imposed

an "objective standard[]" based on the "the character of an

event rather than" the reaction of an individual claimant.

By adding the Patterson requirement, our Supreme Court

"achieve[d] 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."

(quoting

). "Satisfying Patterson

eliminates the problem of 'idiosyncratic responses by members to

28 A-5028-14T1 inconsequential mental stressors[.]'"

at 32 (quoting

).

Here, the ALJ found petitioner's mental disability in

response to these incidents was "the very definition of an

idiosyncratic response." The Board affirmed. We cannot say

that finding was arbitrary, capricious, or unreasonable. While

petitioner's idiosyncratic response entitled her to ordinary

disability benefits, it failed to satisfy the Patterson

requirement for accidental disability benefits.

Before we conclude discussion of the Patterson standard, we

address three arguments not raised by petitioner but raised by

the dissent. First, the dissent asserts the ALJ replicated the

error in Russo. We disagree.

In Russo, the PFRS Board found Russo's "'disability did

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 [Russo] or another person.'" Id. at 24; see id. at

25. Despite finding that Russo "experienced a Patterson-type

horrific event," the Board then found "the event was

'inconsequential' and 'not objectively capable of causing a

reasonable person in similar circumstances to suffer a disabling

29 A-5028-14T1 mental injury.'" Id. at 18; see id. at 24-25. Our Supreme

Court ruled:

[T]he [PFRS] Board went astray in [Russo's] case in failing to recognize that once a member has experienced a qualifying incident — 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' — the objective reasonableness standard of Patterson has been met.

[Id. at 33 (quoting

).]

By contrast, the ALJ did not find a qualifying event and

then fail to recognize the dispositive nature of that finding.

Rather, the ALJ found no qualifying event had occurred. The ALJ

began by recognizing that "'[t]he 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.'" (quoting

). The ALJ cited the examples of qualifying

events cited in

,5 and ruled:

5 The dissent criticizes the ALJ for referencing what the Supreme Court in Patterson called the "relevant statutory incidents under N.J.S.A. 40A:14-196."

. However, the ALJ simply noted: "Although these examples are law- enforcement specific, the Patterson Court used them to suggest the quality of traumatic event that might be expected to result (continued)

30 A-5028-14T1 "I CONCLUDE that [petitioner] does not meet the additional

requirements . . . enunciated in Patterson" because "[t]he

circumstances of the three incidents experienced by the

petitioner, although undoubtedly distressing, did not constitute

a terrifying or horror-inducing event in line with the examples

given by the Patterson Court."

Only then did the ALJ add: "In other words, the stressors

were not sufficient to inflict a disabling injury when

experienced by a reasonable person in similar circumstances."

That echoed the Supreme Court's own language: "Put another way,

by our enunciation [of the Patterson requirement], we limit

accidental disability recovery to stressors sufficient to

inflict a disabling injury when experienced by a reasonable

person in similar circumstances."

.

The ALJ reiterated: "I cannot conclude that petitioner here

experienced a terrifying or horror-inducing event or events that

would have caused a reasonable person in similar circumstances

to suffer a disabling mental injury." That resembled the

Court's statement in Patterson: "a qualifying horrific event

(continued) in mental injury under the various public-sector pension plans." The ALJ's comment reflected the Supreme Court's assessment of N.J.S.A. 40A:14-196: "To be sure, [its] categories are law- enforcement specific," but it "sheds light on the meaning of the term 'traumatic event' in the accidental disability statutes."

.

31 A-5028-14T1 must be objectively capable of causing a reasonable person in

similar circumstances to suffer a disabling mental injury."

.

The ALJ briefly posited that "[a] reasonable teacher might

have found the incident upsetting or disturbing [at] being

pushed and shoved, or grabbed." The ALJ then continued

examining the nature of the incidents: "The petitioner was not

physically injured and there were no weapons brandished at or

near her or even involved in these incidents. The physical

trauma that petitioner described was minimal[.]" The ALJ

properly distinguished petitioner's case from the "hostage"

example given by the Supreme Court. See

(quoting

).6 The ALJ's

brief discussion of the reasonable teacher, while unnecessary,

was not "clearly capable of producing an unjust result" given

her proper application of the correct standard. R. 2:10-2.

Second, the dissent asserts petitioner met the Patterson

requirement due to her lack of training in dealing with

physically disruptive students, and cites Russo. We note that

the Supreme Court mentioned the PFRS "Board should have

6 The dissent asserts the ALJ minimized the third incident by saying the adolescent "grabbed" petitioner's arms. However, the ALJ also stated the adolescent "yanked them behind her back." Moreover, petitioner testified only that the adolescent "had my hands behind my back."

32 A-5028-14T1 recognized that Russo experienced a qualifying event" in part

because "he had no training or equipment for such an event."

. However, the Supreme Court in Russo primarily

addressed the role of training under "Richardson's 'undesigned

and unexpected' standard," finding that Russo met that

Richardson standard due to his lack of firefighting training.

.7

Even assuming an employee's training can be considered in

determining if an incident meets "the objective reasonableness

standard of Patterson," petitioner's lack of training does not

convert any of the three incidents into 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 the member or another person."

at 33 (quoting

).

Third, the dissent asserts the Board's determination is far

afield from the historical requirements established several

decades ago by the Legislature for accidental disability

benefits. However, it was not until 2008 that the Supreme Court

in

held that "an applicant who has suffered a

7 As set forth below, we find petitioner's lack of training helped her meet that Richardson standard. We need not address our dissenting colleague's additional comments regarding that standard.

33 A-5028-14T1 permanent mental disability as a result of a mental stressor,

without any physical impact," could qualify for an accidental

disability retirement.

. The Court recognized it

was necessary to add "a new test" in order "to assure the bona

fides of claimed mental injuries[,] to ameliorate the problem of

subjectivity inherent in mental claims," and to "eliminate[] the

problem of 'idiosyncratic responses.'"

-32 (quoting

). The Court

thus "established a high threshold for the award of accidental

disability benefits" based on claims of mental disability.

.

Finally, it is crucial to remember that we are neither the

factfinder nor the administrative agency charged with making the

determination whether the threshold has been met. Absent a

misinterpretation of the statute or case law, an appellate

court's "review of administrative agency action is limited," and

the Board's "'decision will be sustained unless there is a clear

showing that it is arbitrary, capricious, or unreasonable, or

that it lacks fair support in the record.'" Id. at 27 (citation

omitted). Petitioner failed to make the requisite clear

showing.

34 A-5028-14T1 IV.

As the Supreme Court stated in Russo, "Patterson is the

threshold that must be met for further inquiry to be warranted."

Id. at 32. Nonetheless, we also consider petitioner's claim

that these incidents were not "undesigned and unexpected" under

. The ALJ and the Board found

the incidents were not undesigned or unexpected because a high

school health and physical education teacher should expect to

experience such incidents.

However, in Richardson, our Supreme Court rejected the

similar argument "that because subduing an inmate is part of the

anticipated work of a corrections officer and was not unexpected

or unintended, Richardson cannot satisfy the traumatic event

standard."

. "That is a misreading of the statute,

which requires that the traumatic event occur 'during and as a

result of the performance of [the member's] regular or assigned

duties.'"

The Court noted that under prior statutes the

courts long "defined 'accident' in accordance with its ordinary

meaning — as 'an unlooked for mishap or untoward event which is

not expected or designed.'"

(citations omitted).

The Court ruled that under the current statutes "a traumatic

event is essentially the same as what we historically understood

an accident to be — an unexpected external happening that

35 A-5028-14T1 directly causes injury and is not the result of pre-existing

disease alone or in combination with work effort."

;

see

.

Richardson gave examples of physically traumatic events,

occurring during ordinary work effort, which were "undesigned

and unexpected": "A policeman can be shot while pursuing a

suspect; 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, a "gym teacher who trips over a riser and is injured

has satisfied the standard."

.

The Board cites the job description, which states a health

and physical education teacher "[e]stablishes and maintains

standards of pupil behavior needed to provide an orderly,

productive learning environment." However, there was no

evidence it was a designed and expected part of petitioner's job

that she be punched, slapped, pushed, shoved, restrained, or

threatened with physical harm by students. Thus, the incidents

were undesigned and unexpected under the Richardson test.8

8

rejected a prior test requiring the member to show "his injuries were not induced by the stress or strain of the normal work effort."

. Even under that test, we observed:

(continued)

36 A-5028-14T1 The ALJ concluded the assaults were not undesigned and

unexpected on the premise that "[i]t is not unusual for [special

education] students to become distressed and upset in class or

to act out with others. The petitioner should have anticipated

that such conduct could or would occur in a physical education

class of adolescents." However, no evidence was introduced to

support that premise. In any event, "an accident can be

'undesigned and unexpected' under the Richardson tests even

though it may be concluded in retrospect that the employee could

have anticipated the risk of such an accident and taken steps to

(continued) having to break up fistfights among students in a school corridor and then suffering the physical or emotional sequelae thereof are [not] part of the "stress or strain of the normal work effort" of a teacher. It may be part of the stress or strain of the normal work effort of a policeman or a security guard, but we do not regard the hazards of combat as part of the normal stress of public school educators.

[Pushko v. Bd. of Trs. of Teachers' Pension & Annuity Fund,

(App. Div. 1986).]

Moreover, under that test our Supreme Court found that while corrections officers must subdue inmates, "it is not part of the stress or strain of the 'normal' work effort of a corrections officer to be violently assaulted by an inmate. Corrections officers are not hired to be punching bags." Gable v. Bd. of Trs. of Pub. Emps. Ret. Sys.,

(1989). Though these cases under the prior test are not dispositive, they are instructive.

37 A-5028-14T1 avoid it." Brooks v. Bd. of Trs., Pub. Emp. Ret. Sys.,

(App. Div. 2012) (finding undesigned and

unexpected a school custodian's injury when the students helping

him carry a 300-pound weight bench dropped their side of the

weight bench).

The Supreme Court added in Russo that a member's training

must be considered:

[A]n 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. Thus, for example, an emergency medical technician 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 "undesigned and unexpected" standard because that is exactly what his training has prepared him for.

[Russo, supra,

.]

In Russo, Russo's role in the house fire was "undesigned

and unexpected" because he "was trained and equipped as a police

officer, not as a firefighter."

. We have since

held, because an engine company firefighter was trained to

deploy hoses, and his "training had not prepared him to break

into burning buildings without the battering rams and other

specialized equipment used by the truck company," an incident

where he had to kick in a door to rescue victims trapped inside

38 A-5028-14T1 a burning building was undesigned and unexpected. Moran v. Bd.

of Trs., Police & Firemen's Ret. Sys.,

(App. Div. 2014).

Being assaulted was not part of petitioner's job

description or training. She had a certification allowing her

to teach adaptive special physical education, but there was no

evidence she received training about handling violence from

special needs students. After the first incident, she requested

training on how to restrain students, but her request was

denied.

Therefore, the Board erred in concluding the incidents were

not undesigned and unexpected. However, because petitioner

failed to meet the Patterson requirement, the Board properly

rejected her claim for accidental disability benefits.9

Affirmed.

9 Thus, we need not resolve whether petitioner was disabled as "a direct result of" the incidents, as required by

.

39 A-5028-14T1 ________________________________________

OSTRER, J.A.D., dissenting.

I concur with, and join in, my colleagues' determination

that the Patterson objective reasonableness test applies to this

case, in which petitioner suffered both mental injury and minor

physical injury. I part company with my colleagues because I

believe petitioner met that test, and the Board erred in

reaching the opposite conclusion. Thus, I dissent from Part

III-C of the majority opinion.

Since the Board adopted the ALJ's decision, I look to the

ALJ's reasoning to explain the Board's result here. That

reasoning included multiple reversible errors.

1.

Contrary to Russo, the ALJ required petitioner to satisfy

more than the Patterson standard by evaluating whether

petitioner's response to the assault against her was reasonable

for similarly situated teachers. Then, applying the wrong

standard, the ALJ found that petitioner failed in that showing

without adequate support in the record.

The purpose of the Patterson objective test was to allay

concerns regarding the subjectivity of psychological "proofs

related to the traumatic nature of an event and the causal

relationship between event and [mental] injury."

. The Court achieved this by focusing its

legal standard on the underlying event. The Patterson test is

satisfied upon a showing that the petitioner 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."

. The Court in Patterson noted that by

applying its definition of a qualifying incident, the Court

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

causing a permanent, disabling mental injury to a reasonable

person under similar circumstances."

Accordingly, the "terrifying and horror-inducing event"

standard already incorporates the concern that the injury is

caused by an event that is "objectively capable of causing a

reasonable person in similar circumstances to suffer a disabling

mental injury."

. As the Court in Russo highlighted,

"once a member has experienced a qualifying incident — 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' — the objective reasonableness standard of Patterson has

been met . . . ." See

(quoting

) (noting that the Board "went

2 A-5028-14T1 astray" in failing to recognize this concept). At that point, a

petitioner need only satisfy the Richardson factors to merit an

accidental disability pension.

The Board must not try to

determine separately, untethered from the Patterson definition

of a qualifying incident, whether an event was "inconsequential"

or "objectively capable of causing a reasonable person in

similar circumstances to suffer a disabling injury." Id. at 18.

Satisfying the definition of a qualifying incident is all that

is required.

As the PFRS Board did in Russo, the TPAF Board here "went

astray" by shifting its focus from the definition of a

qualifying event.1 In support of its finding that petitioner did

not experience a terrifying or horror-inducing event, the ALJ

relied on her independent views of how a "reasonable teacher"

might react:

In other words, the stressors were not sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances. I cannot conclude that petitioner here experienced a terrifying or horror-inducing event or events that would have caused a reasonable

1 The majority finds a meaningful distinction between the present case and Russo, insofar as the Board in Russo found that the event was terrifying and horror-inducing, but still failed Patterson. I am unpersuaded. In my view, the ALJ's error mirrors the one the Court corrected in Russo. In both cases, the pension board wrongly incorporated a reasonableness standard into its Patterson analysis.

3 A-5028-14T1 person in similar circumstances to suffer a disabling mental injury. A reasonable teacher might have found the incident upsetting or disturbing, but being pushed and shoved, or being grabbed by a special education student, would come within the expected scope of incidents a high school physical and health education teacher might experience. And indeed, the history shows that such incidents, while not occurring on a daily basis, occur with sufficient regularity in the classroom setting.

. . . . I CONCLUDE that the events experienced by the petitioner, taken objectively, would not cause a reasonable teacher to become mentally debilitated.

However, as Russo instructs, the Board's task was to apply the

Patterson definition, and not formulate conclusions about how "a

reasonable teacher" might have reacted.2

2 The ALJ apparently misconstrues what I believe the Court means by its reference to a "reasonable person." See

. The Court is not referring to the "reasonable person" as the hypothetical person who "exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests." Black's Law Dictionary 1380 (9th ed. 2009). In that sense, there is no indication that a victim's "reasonableness" has anything to do with whether one actually develops PTSD or whether other similarly situated employees would react the same way. Instead, the Court uses "reasonable person" to capture whether the person's reaction is normal, and not idiosyncratic. This concept may be found elsewhere in our law. See, e.g., N.J.S.A. 2C:12-10 (defining criminal stalking in terms of what a "reasonable person" would fear). A "reasonable person" was not intended to mean the common, typical, or usual person. The fact that a small fraction of employees may develop PTSD, and the overwhelming majority may not, after being exposed to the same horrifying or terrifying incident involving actual or threatened death or (continued)

4 A-5028-14T1 Furthermore, the ALJ's conclusion about what a "reasonable

teacher" might have found terrifying or horrifying was unmoored

to the record. Particularly troubling was her conclusion that

the teacher's day-to-day routine should have, to some degree,

prepared her for the violent attack.

In this case, petitioner was not a special education

teacher, although she was permitted to teach "adaptive physical

education," which she described as a class of students with

disabilities. There was no evidence she had training or prior

experience in coping with assaultive, disabled students. The

school denied her request for training in dealing with

physically disruptive students. Thus, even applying an

(continued) serious injury, does not make the minority of employees "unreasonable." Even among veterans who faced the horrors of war, the majority reportedly do not suffer PTSD, although the number experiencing the disorder is significant. See Turner v. Comm'r of Soc. Sec.,

, 1227 n.1 (9th Cir. 2010) (citing study that found roughly thirty percent of Vietnam veterans suffered PTSD at some point); see also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 276 (5th ed. 2013) ("DSM-V") (stating that "[t]he conditional probability of developing PTSD following a similar level of exposure may . . . vary across cultural groups"). The wisdom of the Court's approach in Patterson and Russo was to rely on accepted psychiatric concepts to set the norm for the "reasonable person."

5 A-5028-14T1 independent test of "reasonableness," albeit contrary to Russo,

the ALJ's finding lacks sufficient support in the record.3

3 The Court in Russo suggested that a petitioner's background and training may be relevant in determining whether he or she suffered a compensable mental disability triggered by a terrifying or horror-inducing event. For example, the Court evidently weighed the fact that Russo was a "newly minted police officer," with no firefighting training, in concluding he was terrified when he was thrust into a house ferociously aflame and was unable to rescue a trapped resident.

.

It may be true — although there is no supporting record evidence — that training, background, and experience may decrease a petitioner's sensitivity to certain events and, accordingly, the likelihood that he or she will suffer PTSD when exposed to them. But it strikes me that this is a poor proxy for determining whether a qualifying event has occurred. Even assuming a trained firefighter may not be terrified to enter a flaming structure, the training may not shield the firefighter from the terror of being overcome with smoke inhalation, hearing the cries for help of a doomed resident, and absorbing the scorn of the victim's family. I am not convinced that had a firefighter been at Russo's side, experiencing everything Russo experienced, and then also developed PTSD, the firefighter would be ineligible for an accidental disability pension. The employees who are most likely to repeatedly confront horrifying or terrifying incidents as part of their jobs — such as emergency medical personnel, firefighters, police officers and armed forces members — face heightened risks of developing PTSD. See DSM-V, supra, at 276 ("Rates of PTSD are higher among veterans and others whose vocation increases the risk of traumatic exposure (e.g., police, firefighters, emergency medical personnel)."). The fact that horrifying traumatic events may be more common in some occupations than others does not necessarily make them less traumatic or horrifying. Furthermore, the Richardson "unexpected and undesigned" test does not necessarily erect a heightened hurdle for them to obtain an accidental disability pension. Even if a kind of event is not unexpected over the course of a particular worker's career — e.g., an explosion in a bomb squad member's career or a fatal shooting in a police officer's career — and even if a (continued)

6 A-5028-14T1 2.

I would also reverse the Board's decision because of the

fundamental incongruity in the ALJ's holding that petitioner

suffered from PTSD, yet did not experience a terrifying and

horror-inducing event under the Patterson test. Since the

Patterson test quotes the DSM definition for PTSD, this finding

essentially contradicts itself.

In order to reach this odd result, the ALJ's discussion

regarding accidental disability minimized the nature of the

incident in this case. She did so, first, by downplaying key

facts. Second, she misconstrued the hypothetical examples of

traumatic events listed in the case law as defining the scope of

what constitutes a "terrifying or horror-inducing event."

The ALJ minimized the incident on her way to finding it

failed the Patterson test. The record demonstrates that in the

third and most terrifying incident, petitioner was not merely

"grabbed," as the ALJ states in her legal analysis and

conclusion. An angry student confronted her. With the strength

to do so, he "yanked" petitioner's arms behind her back, to

(continued) worker's training is designed to enable the worker to confront such event, the event may still be undesigned and unexpected when it occurs.

7 A-5028-14T1 quote the ALJ's own statement of the case. The student

restrained petitioner's arms behind her back for what felt like

"forever," petitioner said, while he loudly threatened to "kick

her ass." Petitioner was petrified, terrified, and felt

helpless. Then the student let go of petitioner's hands so he

could take three swings at her face. That incident,

particularly on the heels of the prior physical assaults, was a

"terrifying . . . event." Both verbally and physically, the

student threatened serious injury. We do not need specific

testimony to conclude that had one or more of the three swings

landed on petitioner's head, petitioner could have suffered

traumatic brain injury, fractures, or sensory damage. See DSM-

V, supra, at 424 (including as examples of traumatic events that

may trigger PTSD "threatened or actual physical assault"

including "physical attack, . . . [and] mugging"). As a direct

result of this incident, in the wake of the two prior incidents,

petitioner developed PTSD.4

The ALJ also erred in attempting to fit petitioner's

experience into a procrustean bed of illustrative incidents

4 I recognize that the ALJ found only that the PTSD developed "after" the incident, but did not expressly find that PTSD was a "direct result" of the event. See

; N.J.S.A. 18A:66-39(c). However, I would exercise original jurisdiction and find that it was, consistent with testimony of petitioner and her expert, whom the ALJ credited.

8 A-5028-14T1 described in Patterson and Russo. In particular, the ALJ

assigned undue significance to the non-exclusive list of

incidents that may warrant crisis intervention services for law

enforcement officers under N.J.S.A. 40A:14-196.5 The Patterson

Court found this statute "instructive."

. Although the list "reflect[s] the Legislature's

general acceptance of the view of the psychiatric community

regarding the quality of traumatic event that might be expected

to result in a mental injury," the Court recognized that the

list was "law-enforcement specific."

. Thus, it

should not preclude different claims by non-law-enforcement

pension members. The Court stated, "[T]he gravamen of that

5 The statute defines such "critical incident[s]" to include:

the firing of a weapon or an exchange of gun fire; serious bodily injury to or the death of a juvenile; a terrorist act; a hostage situation; serious bodily injury to or the death of another law enforcement officer employed in the same agency, when that serious bodily injury or death occurred in the performance of that officer's official duties; a personal injury or wound; serious bodily injury received in the performance of the officer's official duties; and such other incidents or events as the county crisis intervention services advisory council established pursuant to section 4 of P.L. 1998, c. 148 (C. 40A:14-198) shall deem appropriate.

[N.J.S.A. 40A:14-196.]

9 A-5028-14T1 statute is that the Legislature has specifically recognized that

a traumatic event giving rise to a mental disability, like PTSD,

may, but need not, involve physical impact."

. The

Court's examples evidently were intended to be illustrative, but

not limiting. To construe them any other way opens the door to

arbitrary or unpredictable applications of the test.

As a result of these errors, the ALJ denied accidental

disability while simultaneously finding that petitioner

manifested the symptoms of PTSD after the student's assault and

that she was "permanently and totally disabled" as "treatment

had not been effective in alleviating" those symptoms.

Petitioner's expert found she met the DSM criteria for PTSD.

Thus, implicit in the ALJ's finding was the conclusion that,

consistent with the DSM definition, petitioner suffered her

mental disorder because of exposure to a "terrifying or horror-

inducing event." As already noted, the DSM definition of PTSD

is the direct source of the Patterson test.6 Yet, the ALJ

incongruously found that petitioner had not confronted the

qualifying mental stressor as defined by Patterson. While I

agree with my colleagues that the Board — not a testifying

6 While the history of PTSD was the "back drop" of the Patterson Court's analysis, the DSM criteria are more than that. Except for the insertion of two words of no direct relevance to this case — "similarly serious" — the DSM criteria are imported verbatim into the Patterson test.

10 A-5028-14T1 expert — determines whether an employee meets the Patterson

test, ante at __ (slip op. at 25), the Board must rely on more

than its own ipse dixit, particularly when the fact-finder has

credited that psychiatric expert.

3.

In closing, I note how far afield the ALJ's reasoning,

approved by the Board and the majority, has taken us from the

fundamental purpose of an accidental disability pension, and the

legislated distinction between disabilities that qualify for an

ordinary disability pension and those that qualify for an

accidental disability pension.

As the Court noted in Patterson, "The main difference

between the two is that ordinary disability need not have a work

connection."

; compare N.J.S.A.

18A:66-39(c) (providing access to accidental disability if the

applicant "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"), with

N.J.S.A. 18A:66-39(b) (requiring only a showing that the

applicant is "physically or mentally incapacitated for the

performance of duty and should be retired"). The ALJ found that

petitioner suffered PTSD, and was thus, in her words, "mentally

incapacitated from performing her usual or any other duty."

11 A-5028-14T1 Petitioner suffered that condition as a direct result of an

assault in the workplace. Yet, the ALJ denied her access to an

accidental disability pension, concluding instead that she was

entitled only to ordinary disability pension benefits.7

In doing so, the ALJ also thwarted the historical purpose

of accidental disability pensions: to provide an incentive to

workers to take on the risks of their work by providing them

with the peace of mind that a generous benefit would be

available without regard to a prerequisite term of service if

they become disabled by a work-related traumatic event. Cf.

N.J. Pension Survey Commission, Report No. 4 Recommendations for

the Sound Financing of Public Employee Pension Systems in New

Jersey 22-23, 30 (1932); compare N.J.S.A. 18A:66-41 (providing

TPAF ordinary disability pension and annuity equal to no less

than 43.6 percent of final compensation), with N.J.S.A. 18A:66-

42 (providing TPAF accidental disability pension and annuity of

72.7 percent of annual compensation); and compare N.J.S.A.

18A:66-39(b) (requiring ten years of service for ordinary

disability pension), with N.J.S.A. 18A:66-39(c) (imposing no

minimum years of service for accidental disability pension);

7 Notably, if petitioner had not accumulated ten years of service, she would have been denied a disability pension altogether. See N.J.S.A. 18A:66-39(b).

12 A-5028-14T1 Robert L. Clark et al., A History of Public Sector Pensions in

the United States (2003).

In sum, I would reverse the Board's decision and order the

award of an accidental disability pension. For that reason, I

respectfully dissent.

13 A-5028-14T1