NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

It is not disputed that K.K.N., a former police officer, was totally and permanently disabled with post-traumatic stress disorder (PTSD). The Board of Trustees of the Police and Firemen's Retirement System (the Board) granted her ordinary disability benefits but denied her application for accidental disability retirement benefits (ADRB), N.J.S.A. 43:16A-7.2 She appeals from that final administrative decision and also contends the Board's decision to affirm the calculation of her disability benefits was arbitrary, capricious and against the weight of the credible evidence. We affirm.

I.

We begin with a summary of the legal principles that inform our analysis.

Pursuant to Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), a claimant seeking ADRB must prove:

See also N.J.S.A. 43:16A-7.

In Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29, 33-34 (2008), the Court refined the test to be applied when the claimant's injury is a mental disability precipitated by an exclusively mental stressor. For such "mental-mental" cases, the nature of the traumatic event requires more particularized proof that must be satisfied before further inquiry under Richardson is warranted. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 32 (2011). "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." Patterson, supra, 194 N.J. at 34. In reviewing a case in which the petitioner "suffered physical trauma that required medical treatment" in addition to psychological trauma, we concluded that petitioner was not required to meet the additional standard imposed by Patterson because the disability was not "precipitated by `an exclusively mental stressor.'" Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J.Super. 1, 19, 21 (App. Div. 2013) (quoting Patterson, supra, 194 N.J. at 50).

The ADRB statute also requires applicants to file an application for ADRB "within five years of the original traumatic event." N.J.S.A. 43:16A-7. An application may, however, be considered after the five-year period "if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member." Ibid.

II.

K.K.N. was employed as a police officer with the Belmar Police Department (the Department), beginning as a part-time Special Officer in 1997, and becoming a full-time law enforcement officer on December 27, 2000. Her employment was terminated in September 2003.

K.K.N. filed a lawsuit against the Borough of Belmar, the Department and several individuals in which she alleged gender discrimination, hostile work environment, retaliation and violation of her constitutional right to equal protection. The lawsuit was settled in December 2007 for the amount of $800,000. The terms of the settlement included K.K.N.'s reinstatement and an award of back pay in the amounts of $46,557 for March 19, 2003 to December 31, 2006, and $78,443 for January 1, 2007 to December 31, 2007, for a total of $125,000. December 31, 2007 was made her effective date of resignation.

Essentially contemporaneous to the settlement, K.K.N. submitted an application for ADRB. The date of the "accidents" that caused her disability was listed as "[f]rom 12/27/00 to 9/2/03." This was the entire period of her employment as a full-time officer. K.K.N. gave the following history of her disability:

The diagnosis listed for her condition was "DSM IV 309.813 with Severe Depression and anxiety." She described the causal relationship between her disability and the traumatic event as follows:

In support of her application, K.K.N. submitted a report and a medical examination form from her treating psychiatrist, Jeffrey M. Kargman, M.D. Dr. Kargman identified harassment at work as the cause for K.K.N.'s disability and made specific mention of two incidents that caused her depression and anxiety. In one, a fellow officer placed a firecracker under her feet. In the second incident, a fellow officer shot her in the leg with a pellet, or BB, gun.

The Board found K.K.N. was totally and permanently disabled as of the last day of her employment, September 2, 2003, and awarded her ordinary disability benefits. The Board denied her application for ADRB and reached the same conclusion in two subsequent reconsiderations of the application.

One of the terms of the settlement agreement was that K.K.N. would receive back pay based on a salary of $78,443 for the period from January 1, 2007 to December 31, 2007. By letter dated November 28, 2012, the Board advised K.K.N.'s attorney of the following:

The Board explained in a subsequent letter denying K.K.N.'s request to recalculate her final salary that, because K.K.N. "did not receive full back pay, including normal salary increases for the period prior to 2007, she is not entitled to the salary denoted in the settlement agreement." The salary calculation issue was consolidated with the denial of ADRB that was already pending before the Office of Administrative Law.

Testimony was provided by K.K.N. and two expert witnesses at the hearing before the administrative law judge (ALJ). Both Michael David Robinson, M.D., the psychiatrist called by K.K.N., and Richard A. Filippone, Ph.D., the clinical psychologist for the Board, concluded that K.K.N. was permanently disabled. Robinson diagnosed K.K.N. with PTSD resulting from the firecracker and the shooting incidents within "the general context of emotional threat and harm." Filippone agreed that K.K.N. suffered from PTSD as a direct result of the work-related events but testified this was the "the lesser of her diagnoses."

In her initial decision, the ALJ recounted the evidence of harassment and retaliation provided by K.K.N. That evidence included the pellet gun incident, which occurred in September 2002. K.K.N. was writing a report describing evidence, and had a pellet gun and knife on her desk. M.S., a fellow officer, whom K.K.N. described as a principal harasser, entered the room with another officer, C.L. M.S. grabbed the pellet gun from K.K.N.'s desk, and fired it twice. One pellet went past her head into the wall. According to K.K.N., M.S. then came right up to her, shot her in the thigh and laughed "hysterical[ly]." Her resulting injury was a red welt that turned into a bruise. She put Neosporin on it and "it just healed itself." K.K.N. testified she felt helpless and humiliated as an officer in uniform, that "everybody was talking about [the shooting]," and "just laughed it off."

The ALJ found K.K.N. developed PTSD as a result of the shooting incident. She also found that K.K.N. began to suffer severe mental disturbance after this attack and concluded K.K.N. satisfied the Richardson criteria for ADRB. She then addressed the additional Patterson element, "whether shooting with a pellet gun is `objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.'" The ALJ concluded that, "in this situation," which included an escalating pattern of violence, the pellet gun assault sufficed. She also found the ADRB application was timely filed because it was not until the first half of 2003 that "it became apparent that [K.K.N.'s] PTSD was completely disabling." Finally, the ALJ upheld the Board's determination regarding the calculation of K.K.N.'s final salary.

In its final administrative determination, the Board did not dispute that K.K.N. was permanently disabled due to her PTSD and adopted the ALJ's conclusion regarding the final salary used to calculate K.K.N.'s retirement benefits. However, it rejected the ALJ's recommendation to grant K.K.N. ADRB.

While the Board adopted "the ALJ's findings of fact relating to the ongoing harassment described by [K.K.N.]" with some modification, the Board found the ALJ misunderstood certain facts and omitted critical hearing testimony. Specifically, the Board found the ALJ mischaracterized the September 2002 shooting incident as two shootings when it was "one shooting incident involving two shots fired by the same shooter within moments of each other." Moreover, the Board noted the ALJ's finding that K.K.N.'s PTSD was caused by the shooting incident conflicted with the conclusions of both medical experts, including that of Dr. Robinson, whom the ALJ found more credible. Dr. Robinson stated K.K.N.'s PTSD was caused by the "ongoing harassment at her workplace on multiple occasions." K.K.N.'s application also identified the ongoing harassment, rather than the shooting incident, as the cause of her disability. Stating that, as a matter of law, "[a] series of events relating to prolonged exposure to harassment over a period of time" is not a "traumatic event" within the meaning of the statute, the Board concluded K.K.N. failed to satisfy that requirement for ADRB.

The Board also found the ALJ erred in finding K.K.N. had satisfied the Patterson requirement that the mental disability resulted "from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury." (quoting Patterson, supra, 194 N.J. at 34). The Board measured the cause identified by K.K.N. in her application and expert testimony — the series of harassment incidents — against the standard and found that, although the behavior was "appalling, it [did] not qualify as a terrifying or horror-inducing event that involved actual or threatened death or serious injury."

The Board also found the ALJ erred in relying upon the pellet gun incident as a horror-inducing event. The Board noted there was no support in the record for the ALJ's assertion that there was a "deliberate discharge of a pellet gun into [K.K.N.'s] body by another officer." The Board considered the severity of the injury sustained by K.K.N — that she did not seek medical treatment and the injury "healed itself" after she applied Neopsorin. The Board found this injury was closer to those that could be "treated with a band-aid" rather than the physical trauma requiring medical treatment that would relieve a claimant of satisfying the additional Patterson standard pursuant to our decision in Caminiti, supra, 411 N.J. Super. at 19, 21.

The Board also concluded the application for ADRB was untimely. The Board noted that the ALJ's conclusion to the contrary was based on her finding that this was a case of delayed manifestation, a finding that was inconsistent with the expert opinion she found more credible. K.K.N.'s expert testified this was not a case of delayed manifestation and that she began experiencing symptoms as early as September 2002. The Board noted that K.K.N.'s application had to be filed "within five years of the original traumatic event." N.J.S.A. 43:16A-7. Therefore, the Board concluded that even under the ALJ's erroneous view that K.K.N.'s symptoms did not manifest themselves until 2003, the ALJ erred in assuming K.K.N. had five years from the time of manifestation to file her ADRB application.

In her appeal, K.K.N. argues (1) the Board's decision to deny her ADRB was arbitrary, capricious and against the weight of the credible evidence; (2) she satisfied the applicable criteria for ADRB; (3) her application for ADRB was timely; and (4) the Board erred in calculating her disability benefits. We find no merit in any of these arguments.

III.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "`clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Ibid.

The Board's final decision rested upon its interpretation of the ADRB statute and relevant caselaw, and the application of those legal principles to findings of fact that, to some degree, departed from the ALJ's findings. We are mindful that, "[i]n the last analysis it is the agency's function, not the [ALJ]'s, to make the findings of fact and select the ultimate decision, and where there is substantial evidence supporting each result it is the agency's choice that governs." N.J. Dep't of the Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J.Super. 491, 505 (1983) (citation omitted). However, when the agency's factual findings are contrary to those of the ALJ, there is a "particularly strong need for careful appellate review." In re Lalama, 343 N.J.Super. 560, 565 (App. Div. 2001). In addition, N.J.S.A. 52:14B-10(c) provides:

Under this statute, it is not for this court "or the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).

Although we defer to an agency's expertise and knowledge in their particular fields, statutory interpretation is primarily the role of the judiciary and is not an administrative function. Krayniak v. Board of Trs., Pub. Emps.' Ret. Sys., 412 N.J.Super. 232, 237 (App. Div. 2010); see also Caminiti, supra, 431 N.J. Super. at 14. Thus, an agency's interpretation of a statute or caselaw is reviewed de novo. See Russo, supra, 206 N.J. at 27.

IV.

We first address K.K.N.'s argument that the Patterson test does not apply because this is not a mental-mental case where a non-physical traumatic event caused her mental disability. K.K.N. maintains the 2002 shooting was a qualifying traumatic event that constituted an assault on her person. Therefore, she contends, her disability was precipitated by a physical trauma, and only the Richardson test applies. We disagree.

In Caminiti, the petitioner was pricked by a hypodermic needle in the pocket of a drug user as he attempted to secure him as part of an arrest. 431 N.J. Super. at 7. In addition to suffering the psychological trauma attendant to the reasonable fear he might be infected with HIV, the petitioner had to take an "AIDS cocktail of pills" which, the doctor told him, would make him "deathly ill" but could only "possibly" prevent him from contracting AIDS. Id. at 8-9. In fact, the drugs caused the petitioner to vomit "constantly," become dehydrated, and require additional medication. Id. at 9. We found the application of the Patterson standard incorrect "because [the petitioner] suffered physical trauma that required medical treatment." Id. at 19 (emphasis added).

The welt on K.K.N.'s thigh healed itself after the application of an over-the-counter salve. Because no medical treatment was required, her claim remains in "the category of `exclusively psychological trauma,'" ibid., and subject to the Patterson criteria.

V.

K.K.N. argues that, nonetheless, her proofs satisfy the Patterson criteria. Consideration of the timeliness of K.K.N.'s application and adequacy of her proofs is somewhat muddled by an inherent inconsistency as to what she claims caused her disability.

K.K.N. was required to file her application for ADRB "within five years of the original traumatic event." N.J.S.A. 43:16A-7. Her application and supporting expert evidence identified an ongoing series of harassing events in her workplace. If a series of events may qualify as the requisite "traumatic event," the application filed in December 2007 would have been within five years of the last date of the series of harassing events. However, we agree with the Board that an ongoing series of events cannot meet the definition of "traumatic event" necessary to qualify for ADRB.

The Court's analysis in Patterson clearly draws upon the definition of "accident" used within the workers compensation context. The references in the opinion are all to a singular "mental stressor"; the Court's objective was to put psychological trauma on an equal footing with physical trauma. See, e.g., Patterson, supra, 194 N.J. at 48 ("Generally then, permanent mental injury caused by a mental stressor without any physical impact can satisfy the Richardson standard." (emphasis added)). Richardson requires that the traumatic event be "identifiable as to time and place." 192 N.J. at 212. There is no support for the conclusion that the cumulative effect of mental stressors over a period of time would suffice, just as minor physical distress that accumulated over time would not constitute a traumatic event under the Richardson test. See ibid. (stating the disability must be "a direct result of a traumatic event that is ... not the result of pre-existing disease that is aggravated or accelerated by the work"); see also N.J.S.A. 43:16A-7. The conclusion that an ongoing series of events delays the inception of the five-year period is further undermined by the fact the statute requires filing "within five years of the original traumatic event." N.J.S.A. 43:16A-7 (emphasis added).

K.K.N. fares no better if the December 2002 shooting incident is considered the traumatic event that caused her disability. Because her application was filed more than five years after the shooting incident, it was left to the Board's discretion to consider her application. N.J.S.A. 43:16A-7. The exercise of that discretion is warranted if two elements are "factually demonstrated": that the accident caused the disability and the failure to file within time was "due to a delayed manifestation of the disability or to other circumstances beyond the control of the member." Ibid. (emphasis added).

K.K.N.'s proofs failed to satisfy the threshold for the exercise of such discretion. On cross-examination, her expert agreed that this was not a case of delayed manifestation:4

Alternatively, K.K.N. argues the delayed filing was beyond her control because N.J.S.A. 43:16A-7 requires that a member must be in "actual service" to file an ADRB application. K.K.N. did not stop attending work until January 2003, approximately four months after the shooting incident, and her employment was terminated in September 2003. There was a full year from the time of the shooting incident until her termination in which K.K.N. was in service and able to file an ADRB application.

Therefore, the Board's decision to deny K.K.N. ADRB had ample factual support in the record and was in accord with the applicable legal principles.

VI.

Finally, K.K.N. argues the Board was incorrect in finding that the negotiated salary in the settlement was excessive. This argument pertains to the salary negotiated for her final year of service, $78,443, which was more than double her actual earnings for the last year she worked for the Department, and lacks merit.

In its letter denying the negotiated salary, the Board cited N.J.A.C. 17:1-2.18, a regulation that did not become effective until September 7, 2010. K.K.N. contends the Board erred in applying this regulation retroactively.

N.J.A.C. 17:1-2.18(c) replaced N.J.A.C. 17:4-4.8(d), which was in effect at the time of the settlement here and repealed, effective September 7, 2010. N.J.A.C. 17:4-4.8(d) provided:

Using almost identical language, N.J.A.C. 17:1-2.18(c) states a settlement shall be reviewed by the Division if it "is structured in such a way as to provide the member with a substantial increase of creditable salary at or near the end of the member's service."

In determining that the Board's determination of salary should be affirmed, the ALJ reasoned that N.J.A.C. 17:1-2.18(c) "merely replaced the former N.J.A.C. 17:4-4.8(d), which had been in effect for several years at the time of its repeal.... Since the core principle is the same, retroactivity does not apply." The Board adopted this analysis, a result with which we agree.

K.K.N. also challenges the Board's conclusion that the last year salary assigned to her was excessive. She states her "final salary determination reflected the amount designated by the Collective Bargaining Agreement taking into consideration additional compensation that could be attributed to the cost of living, longevity pay, and other increases [K.K.N.] would have been entitled to if she had not been wrongfully discharged." She asserts the final salary was reached after deducting the necessary taxes and mitigated by earnings from K.K.N.'s other employment during the time period at issue, satisfying the requirements of N.J.A.C. 17:1-2.18(a), which states:

The Board argues that "[e]ven permitting for mitigation, there is no evidence to support the increase in salary in 2007 of $78,443, as this salary is even above the 9th step on the collective bargaining agreement that would have been applicable to K.K.N.."

The Board correctly adopted the ALJ's finding that K.K.N.'s negotiated salary for 2007 was excessive. The settlement agreement broke down K.K.N.'s salary as follows:

During her employment, K.K.N.'s pay increases were based on a "step system" as provided in a collective bargaining agreement. By applying this system, the ALJ identified K.K.N.'s gross yearly earnings, with her employment beginning in December 2000:

The pay scale was later adjusted with the changes becoming effective on January 1, 2015: two additional steps were added; the starting salary was set at $27,500; a new Step 9 was created, with the corresponding salary as $78,162; and "all other steps [were] equalized between Step 9 and the Start salary." The ALJ observed that K.K.N.'s 2007 salary of $78,443 was excessive because she would have been at Step 7 that year but the settlement amount was even greater than the Step 9 salary.

The Board accepted the ALJ's conclusion that it had correctly calculated K.K.N.'s salary for the purpose of calculating her retirement benefits. It noted that, contrary to K.K.N.'s argument, "the compensation ... creditable for retirement ... benefits ... shall be limited to base salary, and shall not include extra compensation" such as "individual adjustments to place a member at the maximum of his or her salary range in the final year of service where no sufficient justification is provided." N.J.A.C. 17:4-4.1(a)(2)(viii).

The Board's conclusion was adequately supported by the factual record and legal principles and, therefore, is entitled to our deference.

Affirmed.