NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

NUGENT, J.A.D.

The sole issue on this appeal is whether petitioner Gerardo Martinez, a Hammonton detective and hostage negotiator, met certain standards for receiving accidental disability retirement benefits; namely, whether his disabling post-traumatic stress disorder (PTSD) directly resulted from a qualifying terrifying or horror-inducing traumatic event that was undesigned and unexpected. Respondent Board of Trustees, Police and Firemen's Retirement System (the Board), concluded the traumatic event that caused petitioner's disabling condition — the fatal shooting and subsequent display of the corpse of a suspect with whom petitioner had negotiated for twelve hours during a hostage crisis — was neither a traumatic event nor undesigned and unexpected. The Board therefore rejected the contrary decision of an administrative law judge (ALJ) and denied petitioner's application for an accidental disability pension. We reverse.

In October 2011, petitioner filed an application for accidental disability retirement benefits, alleging he was incapacitated from further service as the result of PTSD and major depressive disorder caused by an April 24, 2010 work-related incident. In an April 11, 2012 letter, the Board informed petitioner it had granted him ordinary disability benefits, effective March 1, 2012, but had denied him accidental disability benefits.

Petitioner filed an administrative appeal and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. Following a two-day hearing, an ALJ filed an initial decision on March 21, 2014, awarding petitioner accidental disability retirement benefits. On June 10, 2014, after considering objections and petitioner's response to the objections, the Board issued a final agency decision denying petitioner's application.

We derive the factual record from the proofs the parties developed at the OAL hearing. Petitioner testified he was a Hammonton police officer from 1990 to 2011. Although he had been a trained hostage negotiator for approximately ten years before April 25, 2010, petitioner had never been involved in a "real life hostage situation out on the street." Previously, he had participated only in mock training scenarios. Though he trained for a real-life situation in which someone could die, he "never [thought] that way."

On Sunday, April 25, 2010, at approximately 4:30 p.m., a hostage situation unfolded. A man who had robbed an emergency medical technician in Deptford fled from police and led them on a high speed chase to a home in Hammonton where, armed with a gun, the man held his wife, mother, and a tenant hostage. Petitioner responded to the scene and began speaking to the suspect by cellular phone. He recounted how the suspect initially refused to release the hostages and told petitioner they were all going to die. The suspect said he wanted to speak to the President and later said he wanted to speak to the Governor. Petitioner eventually succeeded in convincing the suspect to release the hostages.

Meanwhile, a SWAT team arrived. Petitioner explained that during the ordeal, which continued for approximately twelve hours, his sole focus was to get the suspect out. Petitioner was never informed of the SWAT team's maneuvers or plans to deal with the suspect.1 To accomplish his goal of getting the suspect out safely, petitioner talked to the suspect about sports, hobbies, religion, the suspect's children, and anything else that would not provoke an adverse reaction. According to petitioner, at one point the suspect asked, "[c]an I call you Gerry?" When petitioner responded, "[a]bsolutely," the suspect said, "[y]ou sound like my priest."

Petitioner recounted how the incident ended approximately twelve hours after it began. The suspect said he wanted to get some sleep. Petitioner suggested the suspect go to a back room where cellular phone reception was better. The suspect stopped communicating with petitioner for a while and then telephoned police dispatch and had them patch the call to petitioner. The suspect said frantically: "Gerry, Gerry, what's going on? They're going to kill me. They're going to kill me. You know, what are you doing?"

Petitioner knew from discussions in the command post that the tactical team was going to "introduce" tear gas to flush out the suspect. When he heard a loud bang, he knew the tactical team was administering the tear gas. The suspect screamed, "[y]ou're going to kill me[,] [t]hey're going to kill me." Petitioner responded, "[n]o, . . . [c]ome out . . . we're going to help you out." The suspect called petitioner's name, and petitioner heard some other commotion but did not realize the SWAT team had entered the house. The suspect continued: "Help me. Help me. Help me, Gerry. They're going to kill me."

Petitioner heard two "pops" and then everything went silent. Others exited the van that had served as a command post. As petitioner exited and walked toward his car, he saw the SWAT team "dragging the body out and putting it on the front lawn." Petitioner returned to the van, trying to compose himself. His partner attempted to console him by telling him he had done "a hell of a job." Petitioner replied, "not good enough." Petitioner eventually returned to his own vehicle. As he did so, he saw others cover the suspect with a sheet. When he reached his vehicle, petitioner called his wife and told her "[w]e just killed someone."

Petitioner testified that based on the extraction of the mother, daughter, and tenant, he believed he could have succeeded with the suspect. He continues to hold that belief.2

Following the incident, petitioner began to experience difficulty doing his job. After approximately two weeks, petitioner sought professional help. He remained out of work on disability for approximately one year, returned for approximately four months, and then retired on July 14, 2011.

The former Hammonton Police Chief, who had retired after the incident but before the OAL hearing, testified petitioner had done a good job both "as a detective and a police officer in general, . . . [was] always available, always willing to go the extra mile to help out. There were several investigations that [petitioner] was allowed to [work] with the FBI, the State Police and other agencies."

The Chief testified that on the day of the incident the suspect had committed an armed robbery in Deptford, had fled through several communities, and had ended up at a home in Hammonton. The suspect was armed. He held hostages: his sister, his mother, and an upstairs tenant. The Atlantic County and Hammonton SWAT teams were activated.

Petitioner arrived at the scene and began his job as hostage negotiator. He conducted the negotiations from an Atlantic County communications vehicle, in which the Chief and members of the Atlantic County Prosecutor's Office were also present. The SWAT teams were in separate vans in separate locations, but at times during the incident the SWAT team commander came into the Atlantic County communications vehicle. Petitioner was able to talk the suspect into releasing the three hostages.

According to the Chief, the SWAT teams were positioned around the property's perimeter. They entered the house at approximately 4:17 a.m. The Chief had become concerned about a number of things, including the coming daylight, the residential character of the neighborhood, school being in session, traffic, and tired police officers. He discussed the situation with the SWAT teams and the Atlantic County Prosecutor.

A decision was made to smoke the house with tear gas in an effort to force the suspect out. When that strategy did not work, SWAT team members entered the house. The suspect had retreated to a small bathroom in the back of the house and had "toweled the bottom of the floor." After SWAT team members entered the house, the suspect was shot and his body removed to the yard in front of the house.

The Chief testified he did not tell petitioner the SWAT team was going to enter the house. Petitioner had put long hours into his negotiations and the Chief knew petitioner would be upset about the decision to enter the home. The Chief had no doubt petitioner would want to continue negotiations with the suspect. To the Chief's knowledge, petitioner had no warning that members of the SWAT teams were going to enter the home.

The Chief saw petitioner when he exited the van after the shooting. The Chief testified petitioner was very emotionally upset. Petitioner eventually left the scene and went home. At some point he returned to work, but did not stay long. According to the Chief, [petitioner] "just couldn't do the job."

The SWAT team member who fired the fatal shots testified that at approximately 2:00 or 3:00 a.m., the SWAT team was given the order to try to flush the suspect out with a type of tear gas. The SWAT team fired three rounds of the gas into the suspect's house over a one-hour period. When the suspect did not come out, the SWAT team used a ram to enter the front door. The team entered through a front porch door, continued through a second doorway, and saw the suspect "in the furthest back bathroom directly from [the sightline of] the door frame." He held a phone in his left hand and a gun in his right hand. His right arm was fully extended, and he was pointing the gun at the SWAT team members. The SWAT team member who had first entered the home yelled, "[d]rop the weapon, [d]rop the weapon." When the suspect did not drop the gun, the SWAT team member told him, "I will shoot you. I will shoot you." As the suspect talked on the telephone, he attempted to shoot the SWAT team member who had yelled at him. The suspect pulled the trigger, and the SWAT team member heard a click.3 In response, the SWAT team member fired two rounds that hit and killed the suspect.

The officers did not confirm the suspect had been hit with the rounds until they took him outside, where they unsuccessfully attempted to revive him. The SWAT team member who shot the suspect testified he had no contact with petitioner at any time. He never actually saw petitioner.

Petitioner's expert, Scott W. Allen, Ph.D., had thirty years of experience as a police psychologist and served as a supervisor of a crisis and negotiator team. The ALJ found Dr. Allen qualified to testify as an expert in police psychology with a specialty in hostage negotiations.

After identifying the sources of his information and recounting the dynamics of the twelve-hour hostage ordeal, Dr. Allen opined that petitioner had made an emotional connection with the suspect. He explained hostage negotiators often establish such connections because of their role in such situations: attempting to talk a suspect into surrendering safely by using such tactics as sharing personal information and establishing trust. Dr. Allen noted petitioner had made such a connection with the suspect as evidenced in part by convincing the suspect to free the hostages.

In addition, according to Dr. Allen, petitioner experienced "the sensory dynamic of the trauma as it relates to both auditory and visual where he was on the phone when [the shooting] was happening. Then he visualized [the suspect] being taken out and . . . his body being placed in the front yard." Dr. Allen emphasized "the very compelling dynamic" of the SWAT team's failure to advise petitioner, as the lead negotiator, of their intent to make entry very soon.

Based on his expertise and experience on scenes of hostage negotiations, Dr. Allen would advise negotiators of the high probability that a suspect would kill himself, "as an insulating preventive factor." Dr. Allen would have the lead negotiator acknowledge that possibility.

In this case, however, petitioner had no warning of the SWAT team's plan. Consequently, he could not prepare himself mentally for the eventualities of the hostage being shot. According to Dr. Allen, petitioner was therefore unable to give the suspect a final warning about whether to come out peacefully or face the SWAT team.

Dr. Allen also explained petitioner was "involved as a . . . participatory witnessing officer in a police[-]involved shooting[.]" The doctor characterized petitioner's participation as "a primary witness . . . via . . . telephone interaction." In terms of PTSD, Dr. Allen explained that "witnessing" such a horrifying event, and being unable to control it in the circumstances of a twelve-hour ordeal, can result in such a witness being traumatized.

The Board's expert, Robert Louden, Ph.D., is a professor and Program Director for Criminal Justice and Homeland Security at Georgian Court University. He teaches courses on hostage negotiation, a topic that was also the subject of his Ph.D. In addition to his academic career, Dr. Louden was a member of the N.Y.P.D. from 1966 through 1987, where he participated as either a negotiator or a back-up negotiator in approximately four hundred hostage and "hostage-like . . . situations." He had previously testified as an expert twice in state courts and once in federal court. The ALJ found he was qualified to testify as an expert in hostage and crisis negotiations.

Dr. Louden characterized the job of hostage negotiator as "one of the most stressful jobs around." He testified that in a hostage situation, the hostage negotiator and the SWAT team perform separate roles. A hostage negotiation commander has to make a judgment call about whether to inform the negotiator of any developments, including what the tactical or SWAT team is doing.

Dr. Louden explained that the purpose of a tactical team using gas is to "incapacitate the individual so that they cease to be . . . a threat. From the doctor's perspective as a negotiator, using gas at a hostage scene means the "SWAT team is going in, . . . and the situation will be over very quickly." Dr. Louden concluded from his review of the facts there was nothing a trained negotiator should not have been prepared for.

In a written opinion, the ALJ awarded petitioner accidental disability pension benefits. Noting the factual testimony was essentially undisputed, the ALJ found petitioner's expert more credible than the Board's expert. Commenting that both experts were experienced and well qualified in their fields, the ALJ found petitioner's testimony "more reliable, relevant and persuasive[,]" particularly because of his training and experience in psychology. The ALJ explained:

The ALJ concluded petitioner's proofs established his entitlement to accident disability retirement benefits, finding specifically petitioner's injury was "undesigned and unexpected."

The Board rejected the ALJ's initial decision. The Board adopted the ALJ's findings of fact with the exception of its credibility determinations concerning the experts. The Board found the ALJ's emphasis on Dr. Allen's psychological training was flawed because Dr. Allen's opinions were not only based on undisputed facts, but also concerned an issue not in dispute, namely, that petitioner "was totally and permanently disabled as a direct result of the incident of April 25, 2010." The Board defined the "only issues" as "whether the incident is `undesigned and unexpected' and whether it [involved] a direct personal experience of a terrifying or horror-inducing event involving death, the threat of death, or a similarly serious physical threat." The Board noted that "[n]either of these issues require or rely on medical testimony."

Analyzing our Supreme Court's decisions in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007), and Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), the Board found the ALJ erred when he concluded petitioner met the Patterson criteria for accidental disability retirement benefits. The Board concluded the ALJ's legal analysis of "undesigned and unexpected" was in error:

Petitioner appealed from the Board's final decision.

On appeal, petitioner asserts the Board "misconstrued the ALJ's detailed analysis[.]" Petitioner asserts the Board further misapplied the criteria for accidental disability retirement benefits "by focusing on the work as undesigned and unexpected rather than the accident."

Petitioner also argues the Board erred by rejecting Dr. Allen's testimony and by rejecting the ALJ's credibility findings. Petitioner contends the ALJ's credibility findings were supported by substantial, undisputed evidence on the record as a whole, and that he proved his statutory entitlement to accidental disability retirement benefits.

The Board argues the event that caused petitioner's disability does not qualify as a traumatic event because petitioner did not have a direct personal experience of a terrifying or horror-inducing event. The Board further contends that it properly rejected the ALJ's credibility findings and over-reliance on medical testimony, and correctly determined that the incident was not undesigned and unexpected and therefore not a traumatic event.

Our standard of review requires us to sustain an agency's decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Saccone v. Bd. of Trs. of Police and Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). "However, because questions of law are the province of the judicial branch, . . . we are in no way bound by an agency's interpretation of a statute or its determination of a strictly legal issue[.]" Russo, supra, 206 N.J. at 27 (internal citations omitted). This is particularly so when the administrative agency's "interpretation is inaccurate or contrary to legislative objectives[.]" Ibid. (quoting G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999)). "Like all matters of law, we apply de novo review to an agency's interpretation of a statute or case law." Ibid. (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

With that standard of review in mind, we turn to the issues at hand. A member of the Police and Firemen's Retirement System (PFRS)

Thus, to qualify for retirement on an accidental retirement allowance, a PFRS member must prove:

If the member is seeking accidental disability retirement benefits for a "permanent mental injury caused by a mental stressor without any physical impact," Patterson, supra, 194 N.J. at 48, the member must also establish that the disability "result[s] 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 50. Our Supreme Court "adopted that standard to assure the bona fides of claimed mental injuries and to ameliorate the problem of subjectivity inherent in mental claims." Russo, supra, 206 N.J. at 31.

Applying these legal principles to the facts of the case before us, we reject the Board's contention petitioner did not experience 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 Board argues petitioner "was not in physical danger from the shooting and therefore did not encounter a `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[.]'" The Board goes on to repeatedly emphasize petitioner was never in any danger of being harmed. The arguments overlook that part of the Supreme Court's formulation of the "mental-mental" disability standard concerning "direct personal experience of a terrifying or horror-inducing event that involves . . . a similarly serious threat to the physical integrity of . . . another person."

Significantly, the Supreme Court has addressed such an event. In Russo, supra, 206 N.J. at 18, the Court considered a case in which a "member, a policeman, was involved in a terrifying fire rescue in which he was injured and the victim died." Although the officer was personally exposed to death or significant injury when he and other officers rescued an adult and three children from a burning building, he also suffered PTSD caused by his inability to save a man trapped on an upper floor, whom the officer heard coughing and crying out for help. Id. at 19. "Unfortunately, the victim died in the fire. While [the police officer] was outside the house, he witnessed the firefighters remove the victim from a window and lay him on the front lawn. The man's family then confronted [the police officer], blaming him and the other officers for the victim's death." Id. at 20. After concluding the officer satisfied the Patterson standard because he was exposed to serious injury, the Court further explained:

Here, the suspect was shot as he cried out to the one person he thought could save him, namely, petitioner. Petitioner, who had developed a bond of trust with the suspect, was unware the SWAT team had decided to enter the house, and petitioner was unaware the suspect had pointed a gun at the officers. Petitioner heard the suspect get shot and subsequently saw his body on the ground in front of the house. We conclude petitioner's disabling PTSD resulted from petitioner directly experiencing a horrific or terrifying event — the fatal shooting of another person.

"[W]here a qualifying horrific event is experienced, Patterson is satisfied with no further analysis. It is then that Richardson comes into play." Russo, supra, 206 N.J. at 33. Richardson requires the member to prove "the event caused him to be permanently and totally disabled; that it was identifiable as to time and place; undesigned, unexpected, and external to the member; that it was work related; not self-induced, and that the member is unable to perform his usual or any other duty." Ibid. (quoting Richardson, supra, 192 N.J. at 212-13). The sole Richardson standard the Board disputes is whether the event experienced by petitioner was "undesigned" and "unexpected."

Under Richardson, "an employee who experiences a horrific event which falls within his job description and for which he has been trained will be unlikely to pass the `undesigned and unexpected' test." Russo, supra, 206 N.J. at 33. The Supreme Court cited as an example "an emergency medical technician who comes upon a terrible accident involving life-threatening injuries or death, . . . because that is exactly what his training has prepared him for." Ibid.

Yet, "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 avoid it." Brooks v. Bd. of Trs., Public Emps. Ret. Sys., 425 N.J.Super. 277, 284 (App. Div. 2012). Examples include "[a] policeman . . . shot while pursuing a suspect; a librarian . . . hit by a falling bookshelf while re-shelving books; [and] a social worker . . . catch[ing] her hand in the car door while transporting a child to court." Richardson, supra, 192 N.J. at 214. Significantly, the Supreme Court rejected the Board's argument in Russo that the policeman who entered a burning building and saved lives was not entitled to an accidental disability pension because his "training as a `first responder' somehow rendered what occurred not `unexpected.'" Russo, supra, 206 N.J. at 34. See also Richardson, supra, 192 N.J. at 214 (concluding corrections officer permanently and totally disabled as a direct result of being thrown to the floor while subduing an inmate satisfied the accidental disability statute).

In the case before us, petitioner had negotiated the release of the hostages and had established a bond of trust with the suspect after communicating with him for nearly twelve hours. Petitioner was not informed SWAT team members intended to enter the house, and there is no evidence that when they entered petitioner perceived the suspect posed an imminent threat to law enforcement officers. Not unlike the policeman in Russo who was unable to save a fire victim, and the corrections officer in Richardson who was injured as a result of attempting to subdue a prisoner, the traumatic event experienced by petitioner here satisfied the undesigned and unexpected Richardson criteria. The Board's argument that the training somehow prepared him for the precise facts experienced during his long ordeal is not supported by the record. Accordingly, we reverse the Board's final decision and remand the matter to the Board for disposition consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.