Justices Weigh Enhanced Disability for Emergency Workers at Catastrophes
By: Michael Booth
The state Supreme Court heard arguments Tuesday on whether psychological problems alleged to have resulted from a police officer’s failed rescue effort at a fatal fire entitle him to enhanced disability benefits.
The Board of Trustees of the Police and Firemen’s Retirement System and the Appellate Division have said no, finding Gregory Russo was not able to show his mental illness was caused by “stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances.”
Russo was in his first year on the Montclair force when he responded to a house fire on Nov. 29, 2001. He and three other officers ran into the house and rescued three of the four occupants, but were unable to reach the fourth person, who died.
Russo said he could not rescue the fourth person because of the dense smoke and heat. Later, as the victim’s body was brought out of the house, the victims’ relatives began berating him for not doing enough.
After being diagnosed with post-traumatic stress disorder, Russo retired. The board awarded him ordinary disability benefits, which are substantially lower than accidental disability benefits.
“Although the sight of the lifeless body of the fourth occupant of the burning building being removed was no doubt traumatic for Russo and entitles him to receive ordinary disability, police officers are trained to deal with injured and dead citizens under a multitude of horrific circumstances, including homicides, automobile accidents and natural disasters,” the Appellate Division wrote.
“It no doubt compounded Russo’s trauma to be verbally berated by the surviving family members of the deceased occupant. That circumstance, in and of itself, however, does not constitute a traumatic event,” the court added.
On Tuesday, in Russo v. Board of Trustees, Police and Firemen’s Retirement System, A-20-10, Russo’s lawyer asked the justices to overrule the board’s decision and award accidental disability benefits.
John Feeley, of Livingston’s Fox & Fox, said Ruusso did meet the standard set in Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), which requires an applicant to have undergone a “terrifying, horror-inducing event.”
“Mr. Russo nearly burned to death when he ran into that building,” said Feeley.
He added that the board and the Appellate Division incorrectly determined that Russo voluntarily left the burning house when told to by firefighters. Rather, Feeley said, Russo had to be helped out of the building and had to be treated for smoke inhalation.
Justice Barry Albin noted that police officers routinely have to deal with traumatic events and that alone does not qualify them for accidental disability benefits.
Feeley said each case had to be looked at separately, and added that this particular incident had left Russo feeling helpless and worthless.
Russo was particularly affected, Feeley said, because he almost died and heard the victim pleading for help before he died. “The board acknowledged that,” he said.
Justice Helen Hoens said first responders see horrific scenes every day. “Are all of them entitled to accidental disability benefits?” she asked.
“Absolutely not,” said Feeley. “But police officers are not trained to enter burning buildings, just like firefighters are not trained to respond to an armed robbery in progress. They’re just not trained to do that.”
Senior Deputy Attorney General Eileen DenBleyker, representing the board, said that to qualify for accidental disability benefits, a petitioner had to experience more than a terrifying, horror-inducing event.
Albin said Russo had undergone a traumatic event. “That is not inconsequential,” he said. DenBleyker said the Appellate Division was correct in noting that Patterson also requires the reasonable person test.
“It is necessary to consider objective reasonableness,” she said.
Justice Roberto Rivera-Soto said the Court had to look at the “totality of the circumstances.”
“There was a burning, smoke-filled building. His ears were burning. They were carrying out people. People were screaming. Those are the facts. He had a feeling that he may die,” Rivera-Soto said.
Hoens interjected, saying all of that resulted in PTSD. “Isn’t that enough?” she asked.
DenBleyker disagreed.
“A reasonable person would not suffer accidental disability from this event,” she said. “These are experiences that first responders have to deal with.”