JOE'S STATIONARY

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					                                     State of New Jersey
                               OFFICE OF ADMINISTRATIVE LAW



                                                           INITIAL DECISION
                                                           OAL DKT. NO. TYP 2740-95
                                                           AGENCY DKT. NO. PFRS #34172


FRANCIS WARD,
       Petitioner,
               v.
BOARD OF TRUSTEES OF THE
POLICE AND FIREMEN’S
RETIREMENT SYSTEM,
       Respondent.
_______________________________

       Thomas M. Barron, Esq. (Diane Sever, Esq., on the briefs), for respondent (Barron &
            Gillespie, attorneys)

       Susanne Culliton, Deputy Attorney General, for respondent (Peter Verniero, Attorney
             General of New Jersey, attorney)

Record Closed: December 28, 1998                                     Decided: February 10, 1999

BEFORE STEVEN C. REBACK, ALJ:


              STATEMENT OF THE CASE AND PROCEDURAL HISTORY


       This is an appeal by the petitioner, Francis Ward, from a determination arrived at by the
Board of Trustees of the Police and Firemen’s Retirement System, (the Board) granting him an
ordinary disability retirement, effective July 1, 1994, pursuant to an application for ordinary
disability retirement filed on his behalf by the Township of Cherry Hill.               Mr. Ward was
mandatorily retired, as a police officer, on July 1, 1994, with the Township of Cherry Hill, based
upon a determination arrived at by the Board that he lacked the mental capacity to perform his


                                 New Jersey is an Equal Opportunity Employer
OAL DKT. NO. TYP 2740-95


duties. The Board memorialized its determination in a letter to petitioner dated December 20,
1994.


        Following this determination petitioner, presumably through counsel, requested a hearing
and on March 9, 1995 the secretary to the Board of Trustees advised Mr. Ward that his request
had been granted by the Board at its regular meeting of February 27, 1995. Thereafter, on or
March 14, 1995, Mr. Ward’s appeal was transmitted to the Office of Administrative Law (OAL)
as a contested case, pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.


        The appeal was originally assigned to Administrative Law Judge Kathleen Duncan who
issued an initial prehearing order on June 29, 1995 which, among other matters, granted a motion
by the Township of Cherry Hill to intervene as a party respondent in this matter. In addition, in
the initial prehearing order, ALJ Duncan allocated the burden of proof and of coming forward to
the petitioner on all substantive issues.


        On August 20, 1997 Judge Duncan issued an amended prehearing order which, for all
intents and purposes, repeated the substance of her initial order but for the allocation of burden of
proof. In the second prehearing order, at paragraph nine, ALJ Duncan notes:


               Because the within matter arises as a result of an involuntary
               application filed by the Township of Cherry Hill, respondents will
               bear the burden of moving forward with the evidence and the
               burden of proof . . . .

        Thereafter, the matter, by motion, was placed on the inactive list by Judge Duncan
presumably because of the ongoing litigation of a related matter in another forum. Once the
matter was removed from the inactive list, and reassigned to Judge Duncan’s chambers for
disposition, she recused herself from the matter and shortly thereafter the case was assigned to
me. After notifying the parties and counsel of the change in ALJs, I scheduled, and conducted,
an in-person conference with all counsel at the Office of Administrative Law, Mercerville, New
Jersey on October 23, 1997. At that time the Township of Cherry Hill was represented by J.S.
Lee Cohen, Esq., of DeCotiis, Fitzpatrick & Gluck who appeared at the conference. On or about




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OAL DKT. NO. TYP 2740-95


November 4, 1997 my office received a substitution of counsel submitted by Burchard V. Martin,
Esq., of Martin, Gunn & Martin noting he was substituting and representing the intervenor.


          Following the October 23, 1997 conference I sent counsel a letter memorializing the
substantive aspects of those discussions and advised, and solicited from them, that the issue of
intervention was one which I was going to revisit. Following submissions and arguments on that
question, on December 1, 1997, my office issued a twelve page ruling and order which, among
other matters, concluded that the Township of Cherry Hill would be deleted as an intervening
party in these proceedings in that it lacked, in my view, standing. An ancillary issue was also
addressed which related both to discovery and the scope and parameters of these matters. In
respect to that issue, which at this time is moot, I ruled that of Mr. Ward’s current mental
capacity is wholly irrelevant to the matter at bar and was not the subject of fact-finding in these
proceedings. I ruled inter alia that, in the context of this appeal, Mr. Ward’s mental capacity is
relevant only in respect to the proofs as they relate to that capacity at the time preceding and up
to his involuntary retirement.1


          To the best of my knowledge the ruling and order which I entered on December 1, 1997,
deleting the Township of Cherry Hill as a party, and ruling that Mr. Ward’s current mental status
is not relevant to these proceedings, was never interlocutorily reviewed. The matter was then
scheduled for hearing and proceeded to be heard on December 15, 1997, January 7, 1998,
June 18, 1998 and September 1, 1998 at the Office of Administrative Law, Mercerville, New
Jersey.




1
    It is my understanding, based upon conversations with counsel, that there is a related administrative action that
addresses the question of Mr. Ward’s reinstatement based upon his current capacity. That issue is separate and
distinct from the issue before me. So too is the remedy sought and available. It is also my understanding that there
is an ongoing related matter being litigated with the judicial forum between Mr. Ward and the respondent. I have no
familiarity with nor do I believe there is any relevance to the matter sub judice and the judicial controversy.



                                                         3
OAL DKT. NO. TYP 2740-95


       Thereafter, counsel requested the opportunity to submit briefs and Mr. Barron, to the best
of my recollection, requested that those briefs be delayed pending the transcription of the
testimony in these proceedings. That request was granted. The various transcripts of the
proceeding were submitted to my office on or about July 9, 1998, October 1, 1998, January 15,
1998 and January 26, 1998. Thereafter, the parties submitted briefs and reply briefs. The final
submission was made by Deputy Attorney General Culliton, which was received by my office on
December 28, 1998, at which time the record in these proceedings closed.


                             ISSUES AND BURDEN OF PROOF


       In both Judge Duncan’s prehearing orders she articulates the issue as follows: “Is
appellant [petitioner] permanently and totally disabled from the performance of his usual duty
and any other available duty in the Department which his employer is willing to assign him?”
Implicit in this articulation of course is the standard for both disability and alternative
assignments, as defined by the applicable statute in these proceedings, see particularly N.J.S.A.
43:16A-6; See also N.J.S.A. 43:16A-2, and 16A-8. See also N.J.A.C. 17:4-6.10, N.J.A.C. 17:4-
6.12 and N.J.A.C. 17:4-6.7(a)(2). In respect to both these issues which are incorporated in Judge
Duncan’s order--the first dealing with the question of Ward’s total and permanent disability
resulting from his reported mental incapacity from the performance of his usual and assigned
duties as a police officer--and the second dealing with the obligation of Cherry Hill to assign him
to other available duty, the burden as set forth by Judge Duncan in her amended prehearing order
has not been challenged or changed in these proceedings and shall adhere although since the
Township of Cherry Hill is no longer a party, the burden rests upon the respondent the Board of
Trustees of the Police and Firemen’s Retirement System. The Board must establish, by a
preponderance of the relevant credible evidence, that its determination to involuntarily retire Mr.
Ward from the Cherry Hill Police Department, based upon disability, was proper. The Board
must also establish that the Police Department of Cherry Hill acted properly when it determined
that there was no other available duty in the police department to which Ward could reasonably
have been reassigned.




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OAL DKT. NO. TYP 2740-95


                                             THE FACTS


           Unless otherwise noted the following is a substantially uncontradicted narrative of the
operative facts in these proceedings. Where a factual dispute does present itself I shall set forth
the contentions of each party, arrive at a explicit finding of fact and give reasons to support it.
Accordingly, I FIND:


           The petitioner, Francis R. Ward, Esq., joined the Cherry Hill Police Department in April
1975, as a patrol officer. In 1982, he was promoted to detective sergeant, and in 1989, he was
promoted to lieutenant. During his years as a police officer, he attended law school at night,
earning his Juris Doctorate degree and becoming a member of the New Jersey Bar.


           Commensurate with his 1989 promotion to lieutenant, Ward was assigned the duties of
nightwatch commander during the 3 p.m. to 11 p.m. shift, Monday through Friday. In 1990, his
schedule changed and he lost his weekends. In July 1992, he requested transfer to the midnight
shift, 11 p.m. to 7 a.m., with the apparent intent of regaining his weekends.


           In or about 1992, Lt. Ward began to experience severe emotional distress, precipitated by
the changes in his schedule. According to the voluminous and extensively detailed psychiatric
reports, Lt. Ward has suffered at one time or another from the following symptomology: alcohol
abuse, anxiety, crying spells, a “death wish”, depression, flashbacks, insomnia, low energy,
nightmares, panic and paranoia, poor concentration, and an aggravation of a pre-existing
obsessive compulsive disorder. In June 1992, he was briefly admitted to West Jersey Hospital
for chest pains, after having yelled at subordinates.2        Lt. Ward was also involved in an
extramarital affair, compounding his emotional difficulties and culminating in a temporary
separation from his wife later that year.3


           In November 1992, Lt. Ward met with a “Dr. Crawford” of Genesis Counseling.4 In
December 1992, Lt. Ward began psychotherapy treatment with Dr. Stephen Zand, whose name

2
    Tr. ¶ 18, 12/15/97.
3
    Tr. ¶ 36-37, 1/7/98.



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OAL DKT. NO. TYP 2740-95


he obtained from the Obsessive Compulsive Disorder Foundation. On December 9, 1992, he
requested and was granted sick-leave for his proffered reason of a back injury sustained in
November 1992.


           While on sick-leave, Lt. Ward decided to drive to Florida for reasons unknown. During
the drive, his emotional distress apparently reached its zenith-he exited the interstate highway in
North Carolina, came upon the Wilson Memorial Hospital and checked himself in through the
emergency room. He remained there for three days, then returned to New Jersey. At the
recommendation of Dr. Zand, his psychotherapist, he checked into the alcohol unit of the Carrier
Clinic and remained there for an additional three days.                     Lt. Ward later joined Alcoholics
Anonymous for about a year; according to his testimony, he has remained sober since December
1992.


           On February 11, 1993, Lt. Ward began treatment with Dr. Ronald J. Palmieri, a
psychiatrist who had provided psychiatric services for other Cherry Hill Police Department
personnel.5 According to Dr. Palmieri’s evaluation report, dated March 31, 1993, Lt. Ward was
suffering from posttraumatic stress disorder.6 Dr. Palmieri prescribed Prozac for Lt. Ward’s
depression and Klonopin for his anxiety and insomnia. He also taught Lt. Ward behavioral
modification techniques to manage his obsessive compulsive disorder.


           Several days after beginning treatment with Dr. Palmieri, Lt. Ward sent a confidential
memorandum to Robert Daniello, a captain of police at the Cherry Hill Police Department:




4
 Tr. ¶ 38, 1/7/98. “Dr. Crawford” was referred to in Lt. Ward’s testimony; however, this name does not appear in
any of the submissions or evaluation reports.
5
    Tr. ¶ 101-102, 6/18/98.
6
  The trauma that gave rise to Lt. Ward’s post-traumatic stress disorder, according to Dr. Palmieri’s report, was
service-related. Lt. Ward discussed an incident in 1976, involving his inability to remove his gun from his holster
during a pursuit of an armed suspect in a truck; the gun was apparently stuck in the holster. He also discussed an
incident in 1979, when he dispatched a low-priority Code 3 in response to a fire, instead of a higher-priority Code 2.
When he came upon the scene, he saw the bodies of four children who had died in the fire. Lt. Ward apparently
regarded himself as partially responsible. Dr. Palmieri’s report was not for purposes of evaluation, and so it does not
contain any conclusions of Lt. Ward’s fitness for duty. However, the report does refer to Lt. Ward’s desire for desk
duty and willingness (albeit ambivalent) to return to his former duty as watch commander.


                                                          6
OAL DKT. NO. TYP 2740-95


                     Please consider this as my formal request for a psychiatric
                     evaluation and extensive treatment from Dr. Ronald Palmieri . . . .

                     As you are probably aware, from numerous incidents in the recent
                     past, I have required psychiatric treatment for conduct which has
                     occurred while on-duty within the police department.7 These
                     incidents and my resulting behavior have been causally related to
                     my employment as a Police Officer in Cherry Hill Township Police
                     Department.

                     As you are also aware, I have been utilizing sick leave since the
                     first week of December 1992 as a result of a lower back problem.
                     As luck would have it, I have also been experiencing severe and
                     debilitating mental and emotional stress and depression as a direct
                     result of my duties as a police officer employed by Cherry Hill
                     Township. . . .

                     [I]t is my understanding, that the Township of Cherry Hill is
                     currently financing the extensive (i.e.-once-a-week) psychiatric
                     treatment of two township police officers which is provided by Dr.
                     Palmieri. . . .

                     I am therefore requesting that the Township completely finance a
                     psychiatric evaluation, as well as any psychiatric treatment which
                     may be required since my mental problems are strictly
                     employment-related. . . .

                     Lastly, this is to advise you that, as of this date, I am temporarily
                     unable to return to work due to my temporary physical and/or
                     mental conditions, and I will therefore be continuing on sick leave
                     until further notice. . . .8

           Captain Daniello forwarded the memorandum to his superior, William Moffett, chief of
police of the Cherry Hill Police Department. Several days later, with Lt. Ward’s permission,
Chief Moffett forwarded the letter to his superior, the Honorable Susan Bass Levin, Mayor of
Cherry Hill Township.9




7
   William Moffett, chief of police of the Cherry Hill Police Department, whom Lt. Ward copied on the
memorandum, testified he had no knowledge of Lt. Ward’s psychiatric problems until this memorandum came to his
attention. Tr. ¶ 27, 6/18/98.
8
    Exhibit R-3.
9
    Tr. ¶ 32, 6/18/98.


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OAL DKT. NO. TYP 2740-95


       On or about February 26, 1993, Lt. Ward notified the claims department of John Hancock
Mutual Life Insurance Co. that he was “totally disabled and was unable to work for the majority
of the period between November 12, 1992 and the present.” Also on or about February 26, 1993,
Chief Moffett sent a letter to Lt. Ward, which read:


               I am in receipt of your request for psychiatric evaluation and
               treatment contained in your memo of February 14, 1993. Please be
               advised that in order to evaluate your request for Township
               financing of a psychological evaluation and possible course of
               therapy, additional information concerning your alleged condition
               and the alleged incidents which have caused your problem will be
               required.

               The township has paid for psycho-therapy only in limited
               circumstances where the township directed officers to receive
               treatment especially in the context of disciplinary procedures. You
               should know that in cases of police employees who have
               experienced non-duty related psychological problems requiring
               psycho-therapy, the officers have sought and paid for such services
               privately.

               In view of the foregoing, if you still wish to seek township funding
               for psychological evaluation and possible therapy you must provide
               within seven days of receipt hereof, a full and concise summary of
               the duty related incidents causing your alleged problem. Any and
               all information regarding prior medical or psychological treatment,
               prognoses, physician’s reports, as well as any and all additional
               health care providers, including those regarding your back injury
               since your continued absence from work, will also be required.

             If you choose to furnish the above information, your request will be
             evaluated by the department and the Office of the Mayor.
             Additionally, as part of its evaluation the township may require
             your examination by a physician and psychotherapist of its choice.
             Please note that currently and during the period of evaluation the
             township disclaims any and all responsibility for medical or
             psycho-therapy payments not previously authorized by the
             township.
       Also on or about the same day, February 26, 1993, Mayor Levin received a phone call
from Debra J. Ward, wife of Lt. Ward, who then sent a follow-up letter, reading in pertinent part:




                                                 8
OAL DKT. NO. TYP 2740-95


                     Mayor Levin, this is a plea for help for my husband of eighteen
                     years who has been a police officer in Cherry Hill for the same
                     length of time.

                     He is experiencing very temporary mental problems at this time
                     which have been directly caused by his duties as a police officer in
                     Cherry Hill. . .

                     Later that night [February 26, 1993], approximately 8:30-9:00 p.m.
                     Capt. Robert Daniello entered our home to deliver the letter under
                     orders from [Chief Moffett]. Unfortunately, my husband was
                     heavily medicated and was unable to get out of bed to meet the
                     Captain, nor was he completely aware of the circumstances of the
                     visit due to his heavily medicated state. I tried to prepare him for
                     the visit with Capt. Daniello, but when he saw a man standing in
                     front of him in full police uniform in his own bedroom he later
                     became extremely upset and unnerved by the visit since he was so
                     disoriented due to the effect of the medication. He became
                     physically ill and began to scream at me and my children. He was
                     not in his right mind at this point. . . .[emphasis in original]

           Mayor Levin forwarded the letter to Chief Moffett, who later met with Camden County
prosecutors and counsel for the Township to discuss concerns about a potential domestic
violence situation involving Lt. Ward’s department-issued service weapon.10 Chief Moffett
decided to send an officer to retrieve the weapon at Lt. Ward’s house in Audubon Township,
enlisting the help of William Taulane, chief of police of the Audubon Police Department. Chief
Moffett also decided that Lt. Ward should be examined by the Institute for Forensic Psychology,
Inc. (“IFP”), the department’s psychological screening agency.


           On March 5, 1993, Captain Daniello and Chief Taulane met at Lt. Ward’s house to
retrieve his weapon. Captain Daniello also advised Lt. Ward that he needed to undergo a
psychiatric evaluation before the Township would fund his psychiatric treatment, essentially
reiterating Chief Moffett’s letter to Lt. Ward. Several months later, Lt. Ward filed a notice of
claim with the Township, charging forcible and unlawful entry, and naming Captain Daniello,
Chief Taulane, Chief Moffett, Mayor Levin, the Township, the Township Council, the borough
of Audubon, the mayor of Audubon, and the commissioners of Audubon as responsible parties.



10
     Tr. ¶ 34, 6/18/98; Exhibit R-6, R-7.


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OAL DKT. NO. TYP 2740-95


A follow-up investigation by the Office of the Prosecutor of Camden County found there was
insufficient evidence to support Lt. Ward’s claim.11


           On March 29, 1993, Ward was evaluated by Dr. Robert L. Tannenbaum, a licensed
psychologist with the IFP.12 A follow-up interview was conducted by telephone on April 20,
1993. According to Chief Moffett, the purpose of the evaluation was to determine Lt. Ward’s
fitness for duty.13 Twelve separate tests were administered, including a diagnostic interview and
a police situations test. Dr. Tannenbaum also reviewed the treatment summary of Dr. Palmieri,
Lt. Ward’s treating psychiatrist.14 In his evaluation report, Dr. Tannenbaum made the following
recommendations:

                    1. It could be risky to return Lt. Ward to a watch commander
                    position on the midnight shift at this time. The concern is not one
                    of his using excessive force or being a direct danger to himself or
                    others, but rather one of indecisiveness, suspiciousness, and a
                    concern that he will not act in a timely manner if he is faced with a
                    sudden or unpredictable event.

                    2. This individual appears to be in need of continued psychiatric
                    treatment.

                    3. If Lt. Ward continues in psychiatric treatment, monthly progress
                    reports made by Dr. Palmieri should be provided to the police
                    department.15




11
  In the years since Lt. Ward was involuntarily retired, he has engaged in a full-scale litigation assault against his
involuntary retirement: a complaint with the Division on Civil Rights (later withdrawn); a complaint with the Equal
Employment Opportunity Commission (later withdrawn); a demand for arbitration (postponed); a workers’
compensation petition; a claim for unemployment compensation; two complaints in the Superior Court, Law
Division; three appeals to the Superior Court, Appellate Division; a complaint in the United States District Court,
District of New Jersey; and the administrative appeal in the present matter. Ward v. Township of Cherry Hill, et al.,
A-6535-94T5, A-207-95T5, A-1993-94T1 (App. Div. January 24, 1997).
12
   According to Chief Moffett, there were extensive negotiations between Lt. Ward’s attorney and the Township
attorney regarding this evaluation. Tr. ¶ 41, 6/18/98.
13
   Dr. Tannenbaum’s report also states that Lt. Ward was “referred for psychological evaluation to determine his
fitness for duty.”
14
  According to Dr. Tannenbaum’s report, Lt. Ward would not give permission for Dr. Tannenbaum to contact
Dr. Palmieri to ask further questions.
15
     According to Chief Moffett’s testimony, the police department never received any monthly progress reports.


                                                           10
OAL DKT. NO. TYP 2740-95


                     4. This individual should be psychologically re-evaluated in
                     approximately six months.

                     5. This individual may be capable of performing adequately in a
                     desk job, if one is available.16

           Chief Moffett testified that he understood Dr. Tannenbaum’s report to mean that Lt.
Ward was psychologically unfit for duty and should not be reinstated, despite Dr. Tannenbaum’s
clearance of Lt. Ward for desk duty. During direct examination, Chief Moffett was asked
whether there was any desk duty he was able to assign Lt. Ward at the time the report was
received. His answer was, “Not that I recall.” He was then asked whether there was any desk
duty he was willing to assign to Mr. Ward when the report was received. Chief Moffett again
replied, “Not that I recall.”17            Under cross-examination, Chief Moffett admitted that other
officers had been provided with alternative duty on a temporary basis if: they were not able to
perform their regular duties; an alternative duty position was open; and they were qualified to
perform the alternative duty.18


           Chief Moffett testified that Lt. Ward’s lack of fitness for duty, as he understood
Dr.Tannenbaum’s report, was confirmed by a John Hancock Mutual Life Insurance Co.’s
statement of claim he received from the Township’s counsel. The statement of claim, signed by
Dr. Palmieri on behalf of Lt. Ward (who filed for benefits on February 26, 1993), indicated that
Lt. Ward was totally disabled as of April 19, 1993.19
           On June 4, 1993, shortly after Dr. Tannenbaum issued his report, a meeting was held
between Chief Moffett, Township counsel, Lt. Ward and his attorney to discuss the report and Lt.
Ward’s options, including returning to work at a later date or filing for disability retirement.20 Lt.


16
     Dr. Tannenbaum did not testify at the hearing.
17
  N.J.S.A. 43:16A-6(1) requires the employer to certify that the employee it seeks to retire on disability is “mentally
or physically incapacitated for the performance of his usual duty and of any other available duty in the department
which the employer is willing to assign to him . . .” (emphasis added).
18
     Tr. ¶ 115-116, 6/18/98.
19
   Tr. ¶ 60, 6/18/98. Apparently, after Ward filed his claim, the John Hancock Mutual Life Insurance Co. sent a form
to the Cherry Hill Police Department’s personnel department. The form was routed through the Township’s counsel,
who procured the statement of claim from the company. Id. at 58.
20
     There is no dispute about Lt. Ward’s willingness and desire to return to duty.


                                                            11
OAL DKT. NO. TYP 2740-95


Ward was informed that he would be reevaluated again in six months, pursuant to
Dr. Tannenbaum’s recommendation. According to Chief Moffett, either Lt. Ward or his attorney
then claimed that Dr. Palmieri, Lt. Ward’s treating psychiatrist, had already cleared Lt. Ward to
return to duty without any limitation.21 On or about July 19, 1993, the Police Department
received a handwritten letter from Dr. Palmieri, reading in pertinent part:


                     Lt. Frank Ward has shown improvement on Prozac 20 mg daily
                     and Klonopin . . . He was ready to return to his job by 5/3/93. He
                     is capable of performing his duties and responsibilities as watch
                     commander for the Cherry Hill Police Dept. (see enclosed list of
                     duties).

                     Lt. Ward will continue to see me until and after his return to his job
                     has been approved. He is much calmer, less depressed, has fewer
                     nightmares, is sleeping better and feels more secure and confident
                     that he can cope effectively with crisis situations.

                     In my opinion, he is capable of carrying and utilizing a weapon on
                     the job. He should be returned to the 11 to 7 shift as watch
                     commander.22

           Neither side disputes the authenticity of this handwritten letter; therefore, presuming the
letter is authentic, Dr. Palmieri represented to the Township that Lt. Ward was ready to resume
full duties as watch commander as of May 3, 1993. Presuming the statement of claim is
authentic, Dr. Palmieri represented to John Hancock Mutual Life Insurance Co. that Lt. Ward
was totally disabled only two weeks earlier, as of April 19, 1993. Since Dr. Palmieri did not
testify at the hearing to account for these diverging diagnoses and then his opinion must be
viewed with some skepticism.
           Prompted by Dr. Palmieri’s letter, the Township agreed to have Lt. Ward reevaluated by
IFP.23 On December 20, 1993, and January 5, 1994, Lt. Ward was evaluated by Dr. Irving
Guller, a psychologist and director of the IFP. Lt. Ward brought a paralegal with him on both



21
     Tr. ¶ 64, 6/18/98.
22
     Exhibit R-6; Tr. ¶ 68, 6/18/98.
23
  There was significant legal wrangling between the Township and Lt. Ward to arrange this second evaluation. The
Township approved the reevaluation in early September; however, Lt. Ward was not evaluated until late December.



                                                      12
OAL DKT. NO. TYP 2740-95


dates, notwithstanding the negative inferences an evaluating psychologist would probably draw
from his actions.24 According to Dr. Guller’s report, seven tests were administered, two in-depth
interviews were conducted, and numerous documents were examined, including the first IFP
evaluation report from Dr. Tannenbaum (Dr. Guller’s colleague), letters from Dr. Palmieri, and
assorted correspondence. Dr. Guller’s summary and conclusions read in pertinent part:


                  The following are our major findings: The subject does not
                  currently suffer from any clearly definable psychopathology. He is
                  somewhat depressed, inclined towards a suspicious, mildly
                  paranoid orientation, and feels significantly deteriorated, as well as
                  angry.

                  He does not constitute a danger to himself or others, and, in this
                  regard, would be capable of having custody of a weapon. He does,
                  however, demonstrate a variety of long-standing, deeply ingrained,
                  and still active personality characteristics which in combination
                  make him extraordinarily vulnerable to stress disorders, inclined
                  towards a deterioration of judgment under stress, and therefore
                  make him unfit for duty in his most recent capacity. It is clearly
                  understood that the responsibility of this examiner [Dr. Guller], as
                  well as of the jurisdiction, is first and foremost to protect the
                  interest of the public, as well as the safety of the department.

                  The Township has posed several questions and we shall address
                  them individually? [sic].

                  A. Is Lt. Ward psychologically fit to resume the full duties of
                  his office and position [as watch commander of the midnight
                  shift]?

                  Our answer is “No.” He is not capable of performing the
                  duties that he had previously performed and if he is returned
                  to that station it is predictable that he will suffer additional,
                  and perhaps more severe, stress disorders. . . .

                  Question 1A is “If Lt. Ward is not fit at this time, is he likely to
                  regain his fitness for duty or is it suggested that he or the Township
                  seek a disability pension?


24
  Lt. Ward has repeatedly demonstrated a certain distrust of these fitness-for-duty evaluations. According to the first
IFP report, Lt. Ward refused to allow Dr. Tannenbaum to contact his treating psychiatrist, Dr. Palmieri. According
to the second IFP report, Lt. Ward signed the standard general release form required by IFP with a notation that he
was being reevaluated under protest against the Cherry Hill Police Department. At another evaluation, discussed,
infra, Lt. Ward brought his attorney. Not surprisingly, the evaluators found him to have a paranoid orientation.


                                                          13
OAL DKT. NO. TYP 2740-95


                 It is very clear that the most humane resolution of the present
                 situation would be for the Township to cooperate in helping Lt.
                 Ward obtain a disability retirement.25

                 The question of whether or not Lt. Ward is fit to be a police officer
                 is a very complicated one. If, in an initial psychological
                 examination for a candidate, the personality characteristics found
                 in Lt. Ward had been uncovered, he undoubtedly would not have
                 been recommended as a police officer. . . . [W]e believe that if
                 returned to full duty, and especially to full duty as a watch
                 commander, additional deterioration is predictable. As a police
                 officer without command responsibility he was apparently able
                 to function reasonably well, and he probably could do so at the
                 present time. But this is an unfeasible solution since Lt. Ward
                 could never accept the role of patrolman, without command
                 responsibilities, having risen to the level of lieutenant.

                 If he were able to be provided with a desk job, having no
                 command responsibilities, but simply administrative and
                 planning functions, he might be able to function for the
                 remainder of the time until a regular retirement is achieved. It
                 seems unlikely, however, that such a role could be developed for
                 him in a relatively small department. . . .

                 A police superior officer must always be able to relate effectively
                 in an upward direction, as well as in a downward direction with his
                 subordinates. We see that he has an inordinate amount of
                 resentment towards his superiors. His stress vulnerability is great.
                 He is an honest man and a caring individual, but he is, indeed, a
                 fragile person. To be so defined would no doubt constitute an
                 insult to his sense of dignity, but it is regrettably true.




25
  Dr. Guller’s gracious (if paternalistic) recommendation suggests a bias toward finding Lt. Ward unfit for duty in
order to facilitate his disability retirement.


                                                        14
OAL DKT. NO. TYP 2740-95


                     The medication which he is currently taking would in itself not
                     constitute a particular danger to his performance as a police officer.
                     However, the reliance on medication does not bode well for the
                     resolution of the underlying problem.

                     We believe that this individual should continue in psychotherapy.
                     The overall assessment here is that he is clearly unfit to resume the
                     full duties of his office and position as they were constituted prior
                     to December, 1992.

                     [emphasis added.]26

            Chief Moffett testified that his understanding of Dr. Guller’s report was that Lt. Ward
was psychologically unfit for duty, notwithstanding Dr. Guller’s clearance of Lt. Ward for “desk
duty” and an ambiguous clearance for “patrol duty.”27


            The Township then requested additional information from Lt. Ward’s counsel regarding
his fitness for duty. This request was refused. On February 15, 1994, Dr. Guller contacted
counsel for the Township, and followed up with a confidential memorandum, dated February 17,
1994, reading in pertinent part:


                     I initiated the call to your office because, frankly, having spent
                     more time in thinking about this case than any other in recent
                     memory, I realized that there come be some misunderstanding with
                     regard to the point I made regarding Mr. Ward’s ability to function
                     as a police officer. . . .

                     I believe for practical purposes, Mr. Ward would not be able to
                     function as a patrolman or a police officer without any command
                     responsibility, in [the Cherry Hill Police Department].

                     As you know, he is not, in my opinion, dangerous to himself or
                     others. He does not demonstrate a level of pathology which, in
                     some other setting, would rapidly impair his ability to perform the
                     duties which he had (apparently) effectively performed for about
                     seventeen years. Nevertheless, in the specific setting of Cherry
                     Hill, as I have considered this issue intensively, I believe he would
                     be prone to rapid development of anxiety, ‘stress’ and increased


26
     Dr. Guller did not testify at the hearing.
27
     Tr. ¶ 81, 6/18/98.


                                                      15
OAL DKT. NO. TYP 2740-95


              feelings of oppression by his superiors, as well, perhaps, as by
              peers. . . .

              As you have correctly surmised, when I indicated that Mr. Ward
              is probably capable of performing the role of police officer
              without any command responsibilities, I was referring to the
              abstract concept of police officer responsibilities and did not
              entertain the idea that he would seriously consider trying to do
              that in his present jurisdiction. . . .

              [emphasis added.]

       Thus, Dr. Guller’s memorandum clarified his professional opinion that Lt. Ward could
not function as a watch commander, patrolman or police officer, regardless of command
responsibility. Dr. Guller did not testify, and so it is uncertain who or what prompted him to
clarify his recommendation. However, he did not controvert his earlier findings that Lt. Ward
suffered from no clearly definable psychopathology and was cleared for “desk duty” with no
command responsibilities.


       In February 1994, presumably for the purpose of rebutting Dr. Guller’s report, Lt. Ward
sought an evaluation from Dr. Philip Slonim, director of psychology for the Camden County
Health Services Center. According to Dr. Slonim’s report, reading in pertinent part:


              [Lt. Ward] is in my opinion psychologically healthier and better
              able to empathize with others than he was prior to the diagnosis of
              Post-traumatic Stress Disorder.        Lieutenant Ward appears
              somewhat conflicted regarding more than superficial relationships
              with people outside his nuclear family or significant others that
              have helped him throughout his recent difficulties. In this regard
              he feels that he has been unfairly treated by people that he has
              named in his suit against the Township of Cherry Hill. He related
              that he has no concern about his ability to work within this
              environment and there is no evidence on psychological testing that
              he is an impulsive and emotionally [liable] individual. . .

              It is my opinion based on reasonable psychological certainty that
              Lieutenant Ward has the requisite psychological strengths and
              abilities along with the absence of demonstrable psychopathology
              to reassume his prior position within the Township of Cherry Hill
              Police Department.




                                               16
OAL DKT. NO. TYP 2740-95


       Dr. Slonim testified that in his professional opinion, as of February 1994, Lt. Ward did
not suffer from any active psychopathology (echoing Dr. Guller’s finding), and Lt. Ward’s
posttraumatic stress disorder and obsessive compulsive disorder were in remission. He further
testified that he observed nothing “within Mr. Ward or Lt. Ward from a psychological
perspective that would preclude his reassuming his previous responsibilities within the
department” as watch commander as of February 1994. Dr. Slonim found it significant that Lt.
Ward exhibited good judgment by voluntarily removing himself from active duty and seeking
treatment for his psychological problems in December 1992.


       Prompted by the conflicting psychiatric and psychological evaluations of Lt. Ward,
Mayor Levin directed Robert Melson, a captain with the Cherry Hill Police Department, and
Susan Jacobucci, Esq., assistant township attorney, to conduct an independent internal evaluation
as to whether Lt. Ward was fit to resume his duties as a policeman for the Township, and
whether reasonable accommodations could or should be made in view of his condition. Based on
the various psychiatric and medical reports, correspondence, internal memoranda, job
specifications, department rules and regulations, and statutory requirements, Captain Melson and
Ms. Jacobucci concluded in their written evaluation that Lt. Ward was “not psychologically fit”
to resume his duties as a watch commander or serve as a patrol officer or police officer.
Although this written evaluation is useless for its psychoanalytic analysis, it is instructive as to
the issue of alternative desk duty for Lt. Ward. The evaluation reads, in pertinent part:

                       The Cherry Hill Police Department has no provision for
               automatic “light duty” for sworn officers who, for a short period of
               time, are incapable of performing their regular duty as a result of
               an impairment. The department has been able to provide “alternate
               available duty” to officers who were temporarily unable to perform
               regular duty, usually during the recuperation from a physical injury
               or illness. The officers who are afforded this opportunity were also
               qualified to perform the alternate duty which happened to be
               available. . . . It is not the policy or practice of the Cherry Hill
               Police Department to temporarily create a job merely to provide
               work for an employee who cannot function as an officer.

                       In fact, the policy and practice of the Police Department is
               to employ qualified civilians for certain inside administrative
               functions in order to maximize the number of police officers that
               are available for patrol duty. . . .


                                                 17
OAL DKT. NO. TYP 2740-95


                            In view of the psychological diagnosis and prognosis for
                     Frank Ward, there is no reasonable accommodation that can be
                     provided to him as an alternative to his position as a police officer
                     and a police lieutenant. To provide such an accommodation would
                     be inconsistent with the business and public policy necessity that is
                     associated with municipal law enforcement operations and could
                     cause undue hardship for the Township of Cherry Hill. One of the
                     paramount responsibilities of a public official is to provide
                     governmental services to the public through a staff of public
                     servants in whom the public can have faith and confidence.

                             With respect to the situation involving Frank Ward, a
                     reasonable and responsible person could not, in good conscience,
                     allow Mr. Ward to provide services to the public, as a police
                     officer or through accommodation in some other capacity, with the
                     knowledge that his psychological impairment could render him
                     vulnerable to stress disorders. . . .28

           Thus, it is clear the Township was unwilling to assign Lt. Ward other available duty,
whether he was qualified or not.


           On June 13, 1994, approximately six months after Dr. Guller’s report, the Township
Council of the Township of Cherry Hill adopted Resolution 94-6-19, authorizing the application
for the involuntary disability retirement of Lt. Ward, finding him “mentally incapacitated for the
performance of duty” and “unfit for duty”. The application was then filed with PFRS. Under the
employer certification portion of the retirement application, an employer is asked whether there
is “other duty available which may be assigned and which he can perform?”, parroting the
language of the statute, and calling for a “yes” or “no” answer without explanation. The
Township answered this question with “no”.


           According to the respondent’s post-hearing letter brief, the PFRS wrote to Lt. Ward on
June 9, 1994, advising him the Township had filed an application for involuntary disability
retirement. The PFRS does not identify the date the application was received, nor does it explain
why it accepted the application from the Township four days before the governing body of the
Township authorized the application.



28
     Tr. ¶ 96-97, 1/7/98; Exhibit J-2.


                                                      18
OAL DKT. NO. TYP 2740-95


        Pursuant to the application, the PFRS ordered an independent evaluation by Dr. Arnold
Goldman, chief psychiatrist of the West Jersey Psychiatric Session and current president of the
New Jersey Psychiatric Association. Since the issue before me is whether the PFRS properly
granted the involuntary disability retirement application, and the PFRS relied upon the evaluation
of Dr. Goldman in granting the application, his evaluation will be discussed in greater depth.


        According to his testimony, Dr. Goldman has been evaluating employees for the Division
of Pensions for eight or nine years, and handles about three to four evaluations a year. He could
not recall ever having evaluated an individual for an involuntary retirement based on a
psychiatric disability.


        Dr. Goldman met with Lt. Ward on September 19, 1994. At Lt. Ward’s request, his then
counsel, Mr. Mark Utke, Esq., was present during the interview, which lasted about an hour.29 In
forming the basis of his subsequent evaluation, Dr. Goldman relied on this interview and the
following documents: an admission report from West Jersey Hospital, dated June 7, 1992,
regarding Lt. Ward’s admittance for chest pain (induced by his yelling at subordinates); a
discharge summary from Wilson Memorial Hospital in North Carolina, where Lt. Ward stayed
for three days in December 1992; a discharge summary from the Carrier Clinic, where Lt. Ward
stayed for three days in December 1992; Dr. Palmieri’s notes from February 1993 to December
1993; Dr. Tannenbaum’s evaluation report (the first IFP report); Dr. Guller’s evaluation report
(the second IFP report); Dr. Philip Slonim’s evaluation report; the memorandum from Lt. Ward
to Captain Daniello in February 1993, requesting the funding of psychiatric treatment; the
memorandum from Chief Moffett to Lt. Ward, dated February 26, 1993, requesting additional
information on his alleged psychiatric condition; a memorandum from Captain Daniello to Chief
Moffett, regarding the confiscation of Lt. Ward’s department-issued service weapon; the job
specifications of a police lieutenant; and a report by the Camden County Office of the Prosecutor,
concerning the confiscation of Lt. Ward’s department-issued service weapon and Lt. Ward’s
subsequent complaint.




29
   Dr. Goldman’s report found Lt. Ward to have a “tendency toward paranoid thinking”, as demonstrated by his
request to have his attorney present. Lt. Ward testified that Dr. Goldman was “really flustered” by Mr. Utke’s
presence.


                                                     19
OAL DKT. NO. TYP 2740-95


           Dr. Goldman issued an evaluation report, dated December 3, 1994, diagnosing Lt. Ward
with posttraumatic stress disorder, in remission, and obsessive compulsive disorder, in
remission.30 In the report, he agreed with the prior evaluations that Lt. Ward had no active
psychopathology; he also testified that he saw no problem with Lt. Ward functioning at a desk
job. He concluded in the report that Lt. Ward “cannot return to the duties of police work which
require dealing with unpredictable and highly stressful events, whether it be in his former
position of command or even as a patrolman, as he requested.” His rationale was that:

                    Lieutenant Ward admits to having a disability, and all seem to
                    agree. However, what is most impressive and possibly overlooked
                    by his attorney and Lieutenant Ward is the likelihood of having
                    another episode of post-traumatic stress disorder or obsessive-
                    compulsive disorder in response to stress or situations which
                    remind him of the initial traumatic events leading to PTSD. By his
                    own history, the stress began with the 3-to-11 shift and worsened
                    with the 11-to-7 shift, bringing about much more drinking to
                    control his stress anda return of obsessive-compulsive symptoms
                    and progressive marital problems, with finally a desire to escape to
                    Florida in December of 1992 for a brief period of time. . . . It is
                    extremely frightening to the public and hazardous to fellow
                    officers, as well as the officer himself, to have a condition in which
                    he is unable to use firearm in a life-threatening situation or have to
                    compulsively check on his weapon or suffer decompensating stress
                    dealing with human tragedies confronting a law enforcement
                    officer.31

           At the hearing, Dr. Goldman testified that he felt Lt. Ward was “unable to return to work
as a police officer in any capacity, because of the stress the job would entail. And the lack of
evidence that there had been an effective treatment. He had not been in the situation of a police
officer since being retired, or being relieved of his duty. There was no way of testing that he
would not decompensate under that stress again.” He further testified that Lt. Ward would “not
be able -- he potentially would not be able to perform the duties of a police officer, in any
capacity. I do not feel he would be able to handle a gun at the time, due to the obsessive




30
     Dr. Goldman testified that “remission” meant that the disorders were not active at the time.
31
  Along with the report, Dr. Goldman enclosed a copy of the posttraumatic stress disorder description from the
Diagnostic and Statistical Manual of Mental Disorders III-R, highlighting the pertinent sections.


                                                            20
OAL DKT. NO. TYP 2740-95


compulsive disorder.32 And with the posttraumatic stress disorder, whether he would further
decompensate, be confronted with similar situations, which precipitated that disorder.”


        Under cross-examination, Dr. Goldman admitted that Lt. Ward could have handled the
administrative responsibilities (but not the command responsibilities) of a police lieutenant. He
also conceded that Lt. Ward was asymptomatic at the time of the report, and a change in shift to
daytime hours would have been enabled Lt. Ward to manage his posttraumatic stress disorder.33
However, on redirect, Dr. Goldman testified that if Lt. Ward faced incidents similar to those
which first gave rise to his posttraumatic stress disorder-even during daytime hours-it could
induce the disorder again. As for the obsessive compulsive disorder, Dr. Goldman testified that
Lt. Ward’s personality traits were prone to reaggravate the disorder, even though the disorder was
in remission. Both of Lt. Ward’s disorders were chronic, Dr. Goldman said, and “remission” did
not mean the disorders would not necessarily reoccur.


        During the course of his testimony I inquired of Dr. Goldman whether Lt. Ward’s
disorders would preclude anyone with those disorders from serving as police officers.
Dr. Goldman said it would depend on how the individual developed “the symptomology. How it
was dealt with and the personality who has it. Here we have an individual who is going to be put
back into a situation of the very stress that produced the PTSD.” Dr. Goldman said he saw no
problem with Lt. Ward “functioning at a desk job. But that was not the issue. It was whether he
could return to the full duties of a police officer. And I felt, based on the psychological testing
which was done . . . that it indicated a lot of personality traits that would make him prone to
decompensate under additional stress.”


        I then pursued the issue of ineffective treatment. Dr. Goldman affirmed that Lt. Ward had
not undergone any significant long-term successful therapy, and said that the last notation from
Dr. Palmieri, Lt. Ward’s treating psychiatrist (and the only therapist that Lt. Ward saw with any



32
  Lt. Ward’s counsel argues that Dr. Goldman labored under the misimpression that Lt. Ward’s posttraumatic stress
disorder stemmed from an earlier incident where he was unable to remove his gun from his holster due to
psychological reasons (i.e., Lt. Ward froze). As Lt. Ward has described the incident, he was unable to remove his
gun because it was stuck in the holster.



                                                       21
OAL DKT. NO. TYP 2740-95


regularity), indicated that Lt. Ward was having a lot of trouble with his emotions and required
additional medication.34


                                                 ANALYSIS


        The initial issue to be addressed in these proceedings is whether under the appropriate
statutory and regulatory provisions and their judicial construction, the Board of Trustees of the
Police and Firemen’s Retirement System has been able to establish by a preponderance of the
relevant credible evidence that the involuntary retirement of the petitioner, Francis Ward, from
the Cherry Hill Township Police Department was proper.

        Lt. Ward was involuntarily retired under the Police and Firemen’s Retirement System,
pursuant to N.J.S.A. 43:16A-6:


                  (1) Upon the written application by a member in service, by one
                 acting in his behalf or by his employer, any member, under 55
                 years of age, who has had 5 or more years of creditable service may
                 be retired on an ordinary disability retirement allowance;
                 provided, that the medical board, after a medical examination of
                 such member, shall certify that such member is mentally or
                 physically incapacitated for the performance of his usual duty
                 and of any other available duty in the department which his
                 employer is willing to assign to him and that such incapacity is
                 likely to be permanent and to such an extent that he should be
                 retired. . . .

                 [(emphasis added).]


        The corresponding code rule is found in N.J.A.C. 17:4-6.10:


                 (a) If an application for an accidental disability retirement benefit
                 or for an ordinary disability retirement benefit is filed by an


33
   Based on Lt. Ward’s self-reporting, Dr. Goldman opined that nighttime hours triggered Lt. Ward’s posttraumatic
stress disorder.
34
 Dr. Palmieri’s final notation was dated December 1993. Lt. Ward testified he continued to see Dr. Palmieri until
April 1994. Tr. ¶ 78, 1/7/98.



                                                       22
OAL DKT. NO. TYP 2740-95


              employer for one of his or her employees, the member will be
              promptly notified by letter that:
              1. His employer has initiated a disability application, on the
              member’s behalf; and

              2. His employer has certified that the member is permanently
              and totally disabled for the continued performance of duty;
              and, if appropriate;

              3. His employer has certified that the member should be retired as
              a direct result of a traumatic event occurring during and as a result
              of the performance of his regular or assigned duties;

              4. He has a period of 30 days to contest his involuntary
              retirement before the board acts on his employer’s application;

              5. He will be required to appear for an examination before a
              physician designated to conduct such an examination for the
              retirement system; and

              6. In the event the board finds that he is totally and
              permanently incapacitated for the performance of duty, he
              shall be granted the maximum retirement allowance payable
              under the statute. If he does not filed a completed “Application
              for Disability Retirement Allowance” setting forth the type of
              allowance he desires, before his retirement goes into effect; and

              7. In the event the board finds that he is not totally and
              permanently incapacitated for the performance of duty, the
              employer’s application shall be disallowed and the employer shall
              be informed that the member should be returned to duty.

              [(emphasis added).]


       Thus, there are six steps to involuntarily retiring a police officer for mental incapacity
under the Police and Firemen’s Retirement System:


       1)     the employer must submit a written application and certify to the PFRS that the
              officer is permanently and totally disabled for the continued performance of duty;


       2)     the employer must certify to the PFRS that it is unwilling to assign the officer to
              any other available duty;



                                               23
OAL DKT. NO. TYP 2740-95



        3)       the PFRS must promptly notify the officer that his or her employer has initiated a
                 disability application;


        4)       the officer must be given at least 30 days to contest the involuntary application
                 before the PFRS acts on it;


        5)       the officer must appear for an examination by a physician (i.e., psychiatrist, not a
                 psychologist) designated by the PFRS to conduct an examination;


        6)       the medical board must review the results of the examination and certify to the
                 PFRS that the officer is


                 (i)      mentally incapacitated for performance of his or her usual duty and
                 (ii)     any other available duty in the department which the employer is willing to
                          assign to him or her and
                 (iii)    such capacity is likely to be permanent and to such an extent that he or she
                          should be retired.


        The petitioner challenges the PFRS’s reliance on Dr. Goldman’s psychiatric evaluation of
Lt. Ward, as well as its reliance on the certification that the Township was unwilling to assign Lt.
Ward “any other available duty.” As to the second issue, the petitioner is correct; the PFRS
should not have relied on the certification. The Township did not have arbitrary discretion in
declining to offer Lt. Ward “any other available duty,” and by extension, the PFRS would not be
entitled to rely on the Township’s arbitrary and unreasonable discretion. The question that
remains is whether there were assignments that Lt. Ward was capable of performing which the
Cherry Hill Police Department could have reasonably made available to him.35




35
   As discussed, infra, the Township and the Cherry Hill Police Department acted reasonably in not making available
to Lt. Ward assignments which he was capable of performing.



                                                        24
OAL DKT. NO. TYP 2740-95


       However, the issue of “any other available duty” presupposes that Lt. Ward was mentally
incapacitated for performance of his usual duty. Accordingly, the issue of Lt. Ward’s mental
incapacity shall be addressed first.


                                       Petitioner’s Arguments


       The PFRS relied on Dr. Goldman’s evaluation report in granting the involuntary
retirement application.    The petitioner alleges that the PFRS’s reliance on Dr. Goldman’s
evaluation in granting the involuntary application for disability retirement was improper for the
following reasons: 1) Dr. Goldman found that Lt. Ward suffered from no clearly definable
psychopathology; 2) Dr. Goldman found that Lt. Ward’s posttraumatic stress disorder and
obsessive compulsive disorder were in remission (i.e., Lt. Ward was asymptomatic);
3) Dr. Goldman did not conclude within a reasonable degree of medical certainty that Lt. Ward
could not adequately perform his duty; 4) Dr. Goldman did not conclude within a reasonable
degree of medical certainty that Lt. Ward would not have a relapse and thereby pose a substantial
likelihood of serious harm to himself or others; 5) Dr. Goldman could not conclude within any
degree of certainty when and where Lt. Ward’s disorders would abate or whether he would
decompensate under stress on the job; 6) Dr. Goldman failed to inquire about Lt. Ward’s job as
an insurance adjuster during the 1994 interview, for purposes of comparative analysis; 7) Two of
the precipitating stressors to Lt. Ward’s initial emotional distress—his marital troubles and abuse
of alcohol—were no longer factors when Dr. Goldman evaluated Lt. Ward; 8) Dr. Goldman
admitted on cross-examination that a change from the night-shift to the day-shift would have
probably allowed Lt. Ward to manage his posttraumatic stress disorder; 9) Dr. Goldman
performed a screening examination, not a fitness-for-duty evaluation; 10) the manifestation of Lt.
Ward’s obsessive compulsive disorder--constantly checking his holster--was not an impediment
to his performance; 11) Dr. Goldman misconstrued one of the incidents that gave rise to Lt.
Ward’s obsessive compulsive disorder--his gun getting stuck in his holster and jamming in the
car seat--and as a consequence, Dr. Goldman’s opinion of Lt. Ward’s potential difficulty with a
firearm was erroneous; 12) Lt. Ward had successfully controlled his disorders with medication
and psychotherapy at the time of Dr. Goldman’s evaluation; 13) Dr. Goldman drew an improper
adverse inference from the presence of Lt. Ward’s attorney during the evaluation interview; and




                                                 25
OAL DKT. NO. TYP 2740-95


14) Neither Dr. Goldman, Dr. Guller or Dr. Tannenbaum correlated Lt. Ward’s personality traits
with job performance.


        The petitioner’s arguments can be summarized in one sentence: Lt. Ward was not
mentally incapacitated when the PFRS granted his involuntary disability retirement.


        Most of the petitioner’s arguments were not addressed in any substantive manner by the
respondent’s post-hearing brief or reply brief, even though Judge Duncan imposed the burden of
                                36
proof upon the respondent.           Moreover, this appeal of an involuntary retirement for psychiatric
reasons is a case of first impression. Therefore, in order to properly address the petitioner’s
arguments and determine whether Lt. Ward was disabled within the meaning of N.J.S.A. 43:16A-
6, it is first necessary to construct an analytical framework.


                                     Standard for Ordinary Disability


        The standard for ordinary disability retirement is whether or not the member to be retired
was “employable in the general area of his ordinary employment, as distinguished from whether
he is generally unemployable or is disabled from performing the specific function for which he
was hired.” Getty v. Prison Officers’ Pension Fund, 85 N.J. Super. 383, 390 (App. Div. 1964);
see also Skulski v. Nolan, 68 N.J. 179, 205-206 (1975); Skulski v. Nolan, 68 N.J. 179 (1975).
This standard was applied in Salfelder v. Board of Trustees, PERS, A-2519-85T6 (App. Div.
December 18, 1986). The petitioner, a campus police officer at a county college, applied for
ordinary disability retirement based on mental incapacity. The Board of Trustees of the Public
Employees’ Retirement System (“Board”) denied the application, and a hearing was held before
the Office of Administrative Law. According to the petitioner’s psychiatrist, the petitioner
suffered from major psychopathology (two unidentified disorders), and therefore lacked the
critical combination of social and psychological assets that a modern-day police officer needed to
cope with the unique stresses of the job. According to the Board’s psychiatrist, the petitioner did
not evidence any tendency to misuse a gun, he was able to work as a police officer if not under


36
   It will be recalled however, that when ALJ Duncan allocated the burden of proof, the Township was a named
respondent; however, that, of course, is no longer the case.



                                                       26
OAL DKT. NO. TYP 2740-95


“severe stress,” his hostility and anger were not inappropriate; and he showed no significant signs
of mental illness at the time of evaluation. The ALJ sided with the petitioner, finding his
psychiatrist had more extensive experience with the requirements of police work, and had
examined the petitioner twice, compared with the Board’s psychiatrist, who examined the
petitioner only once. The ALJ noted that the Board’s psychiatrist premised his opinion on the
petitioner’s ability to work as a police officer if not under severe stress, and found it significant
that the petitioner’s employer had certified he was mentally incapacitated.


        The Board rejected the ALJ’s initial decision and denied the application, favoring its own
psychiatrist and finding the petitioner’s only problem was that he could not get along with his co-
workers. The final decision stated in pertinent part:


               The record indicates that Mr. Salfelder is not mentally
               incapacitated from performing duties in the general area of his
               ordinary employment, i.e. police work. The record before the
               Administrative Law Judge clearly demonstrates that petitioner
               could in fact generally perform the duties of being a policeman
               such as enforcing traffic and parking regulations, investigating
               incidents, dispatching work and other miscellaneous office work
               attendant to the functions of being a policeman. . . .

               [Id. at 6.]


        On appeal, the Appellate Division noted favorably that both the ALJ and the Board
applied the standard enunciated in Getty. However, the Court deferred to the Board’s decision,
finding the issue of the petitioner’s disability was a question of fact, not of law.


        Accordingly, the standard in this proceeding is whether Lt. Ward was mentally
incapacitated from performing duties in the general area of his ordinary employment; i.e., police
work.


                 Standards for Reviewing Evaluation Reports and Evaluators


        Between December 1992 and December 1994, Lt. Ward was evaluated by at least two
psychologists and two psychiatrists. However, only Dr. Slonim and Dr. Goldman testified at the


                                                  27
OAL DKT. NO. TYP 2740-95


hearing. Furthermore, the PFRS relied only on Dr. Goldman’s evaluation in granting Lt. Ward’s
involuntary disability retirement application, and Dr. Goldman was the only witness of the two
who was qualified to render a medical opinion. Therefore, the crux of this case lies with Dr.
Goldman’s medical opinion.


         As a general rule, “the weight to which an expert opinion is entitled can rise no higher
than the facts and reasoning upon which that opinion is predicated.” Johnson v. Salem Corp., 97
N.J. 78, 90 (1984). Unfortunately, Dr. Goldman relied almost entirely on the prior evaluation
reports by Dr. Palmieri, Dr. Tannenbaum, Dr. Guller, and Dr. Slonim.37 Therefore, in order to
properly assess the facts and reasoning upon which Dr. Goldman’s opinion was predicated, it is
critical to analyze the methodology and conclusions of each evaluation report by Dr. Palmieri,
Dr. Tannenbaum, Dr. Guller, and Dr. Slonim.


         Expert reports unsupported by the expert’s testimony are generally inadmissible hearsay.
Corcoran v. Sears Roebuck and Co., 312 N.J. Super. 117, 126 (App. Div. 1998). However, in an
unreported Appellate Division decision, Edmund S. Forker v. Board of Trustees of the Police &
Firemen’s Retirement System, A-4932-87T3 (App. Div. June 2, 1989), the Court indicated that
medical reports without supportive testimony could be considered in an administrative
proceeding under the residuum rule, N.J.A.C. 1:1-15.5(b), if there was sufficient direct evidence
of the underlying incidents and resulting symptoms. This decision was cited by Mercier v. Board
of Trustees, Police and Firemen’s Retirement System, 92 N.J.A.R.2d (TYP) 94, 98, in which the
petitioner testified on his own behalf, then relied on the written reports of two physicians and a
clinical psychologist who were not called to testify. The ALJ accepted the reports as evidence,
because the petitioner’s testimony provided the direct evidence (i.e., residuum of proof).
However, the ALJ devalued the probative weight of the reports due to “the absence of a
probative cross-examination that might have sought and probed into the factual foundations
underlying the ultimate conclusions.” Id. at 98.




37
   An expert may base an opinion on facts or data reasonably relied upon by experts in the particular field, even
though the facts or data are not admissible into evidence. N.J.R.E. 703; State v. Pasterick, 285 N.J. Super. 607, 620
(App. Div. 1995).



                                                         28
OAL DKT. NO. TYP 2740-95


        In the present matter, Lt. Ward testified about the underlying incidents which gave rise to
his disorders and the resulting symptoms.                 He also testified about his evaluations with
Dr. Palmieri, Dr. Tannenbaum, and Dr. Guller. Therefore, his testimony represents the residuum
of proof needed to consider the reports of these doctors in this opinion, subject to devaluation of
the probative value of these reports.


        In addition to the reports, the credibility of the expert witnesses, including Dr. Slonim and
Dr. Goldman must also be assessed. Examples in the case law provide guidelines in assessing
the expert witnesses as well as assessing the evaluation reports. In Salfelder, supra, the ALJ
ruled that the petitioner was eligible for ordinary disability retirement based on psychiatric
disability, finding, inter alia, the petitioner’s psychiatrist had more extensive experience with
police work than the Board’s psychiatrist, and had examined the petitioner twice, compared with
the Board’s psychiatrist, who only examined the petitioner once and then rendered a qualified
opinion (i.e., the petitioner could work as a police officer under less than severely stressful
conditions).      Although the Board rejected the ALJ’s initial decision, favoring its own
psychiatrist’s opinion and finding the petitioner’s only problem was that he could not get along
with co-workers, it did not expressly refute the reasoning by which the ALJ assessed the
psychiatrists’ testimony.       The ALJ in Malone v. Teachers’ Pension and Annuity Fund, 97
N.J.A.R.2d (TYP) 47, ruled that the petitioner was not eligible for ordinary disability retirement
based on psychiatric disability, finding, inter alia: the petitioner’s psychiatrist treated her
sporadically at times and never increased her medication, even though the petitioner was non-
responsive; and the evaluating psychiatrist, hired by the Board of Trustees, was more credible,
since a treating psychiatrist develops a lack of objectivity with the patient.38 The ALJ also noted
that a physical component to a psychiatric condition may be a determinative factor in an ordinary
disability case. The ALJ in Kenerley v. Board of Trustees, PERS, 93 N.J.A.R.2d (TYP) 185,
ruled that a secretary was eligible for ordinary disability retirement based on psychiatric disability


38
   As a general rule, the opinion of a treating physician (who has the greater opportunity to know, understand and
decide upon the cause of a patient’s condition) has greater probative force than an evaluating physician who
conducts a single examination. Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958). However, there is
good cause not to follow the rule in Bober by giving Dr. Palmieri’s opinion greater probative force than
Dr. Goldman’s opinion. First, Dr. Palmieri did not testify at the hearing. Second, Dr. Palmieri represented to the
Township that Lt. Ward was ready to resume full duties as watch commander as of May 3, 1993, while representing
to John Hancock Mutual Life Insurance Co. that Lt. Ward was totally disabled only two weeks earlier, as of April 19,
1993, a diverging diagnosis that places his credibility into question. Third, Dr. Palmieri’s notes on Lt. Ward, dated


                                                         29
OAL DKT. NO. TYP 2740-95


(resulting from a vicious dog attack and two car accidents), finding, inter alia: the secretary’s
evaluating psychiatrist personally observed her esophageal reflux problem, a psychosomatic
response to her psychiatric disorder. The ALJ in Cappucio v. Board of Trustees, PERS, 93
N.J.A.R.2d (TYP) 98, ruled that the petitioner was not eligible for ordinary disability retirement
based on psychiatric disability, finding, inter alia: the Board’s psychiatrist testified at length and
submitted to lengthy cross-examination, whereas one of the petitioner’s treating psychiatrists did
not testify, and so her written opinion was “not subject to scrutiny by way of cross-examination,
which is regarded as the most efficacious way of determining the truth.” Id. at 104.


        The petitioner cites to Matter of Vey, 124 N.J. 534 (1991), for the proposition that
psychological evaluations of         police officers and fire fighters must correlate to actual job
performance. Matter of Vey was concerned with the use of selection devices in screening out
applicants based on euphemistic nonpathological characteristics (e.g., impulsive, anxious, etc.),
and does not control in the present matter.                 However, the rationale of Matter of Vey--
disqualifying personality characteristics should correlate to job performance so that Courts can
review the legitimacy of an agency action--dovetails with the ALJ’s role in reviewing the
legitimacy of the evaluation reports. Therefore, each evaluation report will also be assessed to
determine whether the evaluator correlated Lt. Ward’s personality characteristics to the duties of
police work.


        The foregoing criteria, as well as any criterion dictated by logic, reasonableness and
common sense, will be applied to each evaluation report of Lt. Ward. Dr. Slonim and Dr.
Goldman were the only evaluators of Lt. Ward who testified at the hearing, and so their
testimony is also subject to assessment of their credibility and demeanor.


        The following evaluations are addressed and analyzed in chronological order, beginning
with Dr. Palmieri, Lt. Ward’s treating psychiatrist.




December 1993, indicated that he was having trouble with his emotions and needed additional medication. There are
no notes after that date, even though Lt. Ward testified that he continued to see Dr. Palmieri until April 1994.


                                                       30
OAL DKT. NO. TYP 2740-95


                            Dr. Palmieri’s Evaluation, Notations & Letters


         According to Lt. Ward’s testimony, he was treated by Dr. Ronald J. Palmieri, a
psychiatrist, from February 1993 to April 1994.                 Dr. Palmieri was the only mental health
professional who treated Lt. Ward with any regularity prior to his involuntary retirement. Chief
Moffett admitted that Dr. Palmieri was one of the mental health professionals that the Cherry Hill
Police Department relied upon in treating police officers.


         According to Dr. Palmieri’s psychiatric evaluation report, dated March 31, 1993, Lt.
Ward was suffering from posttraumatic stress disorder, triggered by his change in shift, and
arising out of the following incidents:


                  Lieutenant Ward tells two vignettes of how he recalls a police
                  pursuit in which he was involved in 1976 wherein he could not
                  remove his gun from his holster while pursuing a runaway criminal
                  who also had a gun. This individual lost control of his truck,
                  flipped and was shot by Pennsauken police officers. He claims he
                  relives this scenario because he fears that he could have been killed
                  since he could not get his gun out of its holster. The other scenario
                  involves his recollection of a fire that occurred in 1979 wherein he
                  claims he dispatched a Code 3 and felt that he had made a mistake
                  and should have dispatched a Code 2, to the scene of a fire. He
                  apparently went to the scene himself and saw that only a husband
                  and wife had survived the fire while their four children were lying
                  burned to death on the ground. He felt extremely guilty and drove
                  the husband and wife to the Cherry Hill Medical Center. He felt
                  distress because the wife was blaming her husband for the fire,
                  hitting him while Lieutenant Ward was driving the car. . . .39


         Dr. Palmieri’s evaluation report indicated that Lt. Ward did not suffer from any major
psychological disturbance other than posttraumatic stress disorder and a compulsion to check his
weapons (later diagnosed by Dr. Goldman as an obsessive compulsive disorder, in remission).




39
  Lt. Ward later related a third incident which may also underlie his posttraumatic stress disorder. According to Dr.
Tannenbaum’s report, “The third incident was described briefly [by Lt. Ward] and had to do with his concern that
the AIDS virus could possibly cling to the then-carpeted walls of a holding cell in the police department.”


                                                         31
OAL DKT. NO. TYP 2740-95


       On or about July 19, 1993, the Police Department received a handwritten letter from
Dr. Palmieri. According to the letter, Dr. Palmieri opined that Lt. Ward had been ready to return
to his position as watch commander of the midnight shift as of May 3, 1993, subject to
continuing treatment. As discussed, supra, according to a John Hancock Mutual Life Insurance
Co. statement of claim, Dr. Palmieri opined that Lt. Ward was totally disabled only two weeks
earlier, as of April 19, 1993. The petitioner opted not to call Dr. Palmieri as a witness, and so the
respondent was unable to subject him to cross-examination.


       Dr. Goldman testified that the last notation in Dr. Palmieri’s treatment notes, dated
December 1993, indicated that Lt. Ward was having trouble controlling his emotions and
required additional medication. According to the petitioner’s post-hearing brief, December 1993
was about the time when Lt. Ward’s sick leave and vacation-time ran out, rendering him an
unpaid employee, and prompting him to sue the Township in Superior Court; in other words,
these external stressors account for his trouble controlling his emotions. However, there are few
duties with more external stressors than police work, and so Dr. Palmieri’s last notation is
troubling. Lt. Ward testified that he continued to see Dr. Palmieri until April 1994, though it is
unclear why Dr. Goldman was not provided with Dr. Palmieri’s treatment notes from January
1994 to April 1994, presuming there were any.


       Dr. Slonim, the psychologist hired by Lt. Ward, stated in his report that a letter from Dr.
Palmieri indicated that Lt. Ward was “emotionally stable to return to his job as a police officer as
an evening supervisor. He is not symptomatic at this time.” The letter was dated January 12,
1994, a month after Dr. Palmieri noted that Lt. Ward was having trouble controlling his emotions
and required additional medication. Once again, Dr. Palmieri’s opinions diverge within a brief
period of time. It is also worth noting that Dr. Palmieri cleared Lt. Ward to return to duty twice
without reservation; not alternative duty, not interim desk duty with graduating responsibilities,
but a full return to watch commander duty with command responsibilities.


       Dr. Palmieri was Lt. Ward’s treating psychiatrist, and so his failure to testify (or the
petitioner’s strategic decision not to call him) is telling. His diverging opinions of Lt. Ward’s
fitness for duty further undermines his credibility. One is left to guess whether his opinions are




                                                 32
OAL DKT. NO. TYP 2740-95


indicia of Lt. Ward’s fitness for duty, or Lt. Ward’s erratic emotional state and lack of fitness for
duty as of January 1994.40


        Furthermore, Dr. Palmieri was a psychiatrist, i.e., a physician. Under the Police and
Firemen’s Retirement System, a physician must conduct the requisite examination before a
retirement application can be granted. Therefore, to rebut the finding of the evaluating physician,
Dr. Goldman, the petitioner should have called a physician to testify, such as Dr. Palmieri, who
would have been entitled appropriate probative value as Lt. Ward’s treating psychiatrist.


                                 Dr. Tannenbaum’s Evaluation Report


        On March 29, 1993, Ward was evaluated by Dr. Robert L. Tannenbaum, a licensed
psychologist with the IFP. A follow-up interview was conducted by telephone on April 20, 1993.
According to Chief Moffett, the IFP was the Cherry Hill Police Department’s psychological
screening agency. According to Dr. Tannenbaum’s report, “The purpose of this examination was
to determine the presence, if any, of emotional or intellectual characteristics which would
detrimentally affect the subject’s performance in the role of police officer.” The reasonable
inference from this stated purpose and the IFP’s relationship with the Cherry Hill Police
Department is that Dr. Tannenbaum performed a “screening examination” of Lt. Ward, such as
those used to screen police officer candidates on eligible lists. Dr. Tannenbaum should have
performed a fitness-for-duty evaluation.41 The difference is fundamental; Lt. Ward was already a
police officer, not a candidate, so even if a screening exam “disqualified” him, it did not
necessarily follow that he was mentally incapacitated for retirement purposes. However, this
error does not render Dr. Tannenbaum’s findings entirely useless.


        Dr. Tannenbaum and the IFP administered 12 separate psychological tests: the Mooney
Problem Checklist (adult form); the Shipley Institute of Living Scale; the Edwards Personal


40
  In a subsequent evaluation report, discussed, infra, Dr. Guller noted that between the course of two interviews on
December 20, 1993, and January 5, 1994, “Lt. Ward’s mood seems to have improved somewhat and he also
appeared less tense.”
41
  On page 2 of Dr. Tannenbaum’s report, he acknowledged that Lt. Ward was referred to the IFP for “psychological
evaluation to determine his fitness for duty.”


                                                        33
OAL DKT. NO. TYP 2740-95


Preference Test; the How Supervise Test; the Social Opinion Inventory (Locus of Control); the
Candidate and Officer Personnel Survey; the Police Situations Test (oral administration); the
Speed Completion Form-Sentence Completion Test; a personal opinions and history
questionnaire; the Beck Depression Interview; the California Psychological Inventory; and the
Rorschach Ink Blots Test.


        Dr. Tannenbaum also conducted a diagnostic interview and reviewed a treatment report
by Dr. Palmieri, Lt. Ward’s treating psychiatrist. In the evaluation report by Dr. Tannenbaum, he
noted that Lt. Ward would not give him permission to contact Dr. Palmieri to inquire further
about the treatment report.42


        From the results of the tests, Dr. Tannenbaum’s evaluation report identified 11
personality characteristics in Lt. Ward:


                 1.       Strong dominance needs

                 2.       Greater than average difficulty adjusting in a highly
                          structured organization due to personality characteristics
                          (tendency to self-blame, sensitivity to criticism)

                 3.       Somewhat of a ‘loner’

                 4.       Lapses of judgment due to emotional factors, leading to
                          possible rejection by colleagues

                 5.       Very introspective, associated with periods of inefficiency

                 6.       A lack of self-assurance, inclination to weigh several
                          alternative responses before acting (could impair immediate
                          proper response)

                 7.       Below average in tolerance for routine or tedious work not
                          involving some kind of challenge or excitement (thrill of
                          hunt)




42
  According to Lt. Ward’s testimony, Dr. Palmieri did speak with Dr. Tannenbaum, although it is uncertain whether
they spoke before or after the report was issued. Tr. ¶ 83, 1/7/98.



                                                       34
OAL DKT. NO. TYP 2740-95


             8.     This subject left out a greater than average number of items
                    on one of the test questionnaires, the COPS (a measure of
                    basic life history) -- this resulted in an invalid profile for
                    this particular test. The subject’s reasons for omitting items
                    is probably best explained by cautiousness and worry about
                    the possible implication of completing such items. This is
                    the type of behavior which can get in the way of good
                    judgment and timely decision making

             9.     Anxiety and depression despite inconsistencies in data,
                    supported by Dr. Palmieri’s report (with ongoing
                    medication treatment and psychotherapy)

             10.    Dissatisfaction with current shift and responsibilities and
                    fear that this position will be too stressful at this time

             11.    Anger and suspiciousness about his status and treatment
                    within the department and strained relationships with
                    personnel, including superiors

      Based on these characteristics, the “nature of demands associated with [Lt. Ward’s]
position,” and “the short-term prognosis for improved functioning”, Dr. Tannenbaum’s report
made the following recommendations:


             1.     It could be risky to return Lt. Ward to a watch commander
                    position on the midnight shift at this time. The concern is
                    not one of his using excessive force or being a direct danger
                    to himself or others, but rather one of indecisiveness,
                    suspiciousness, and a concern that he will not act in a
                    timely manner if he is faced with a sudden or unpredictable
                    event.

             2.     This individual appears to be in need of continued
                    psychiatric treatment.

             3.     If Lt. Ward continues in psychiatric treatment, monthly
                    progress reports made by Dr. Palmieri should be provided
                    to the police department.
             4.     This individual should be psychologically re-evaluated in
                    approximately six months.

             5.     This individual may be capable of performing adequately in
                    a desk job, if one is available.




                                              35
OAL DKT. NO. TYP 2740-95


          Dr. Tannenbaum’s report illustrates the problem identified in Matter of Vey, the failure to
correlate personality characteristics with job performance. For example, Lt. Ward is identified as
being “below average in tolerance for routine or tedious work not involving some kind of
challenge or excitement (thrill of hunt).” This would not appear to be a unique and disqualifying
trait among police officers. Several of the identified traits indicate a vague correlation with job
performance; e.g., according to trait #6, Lt. Ward’s lack of self-assurance and inclination to
weigh several alternative responses before acting could impair his immediate proper response to
a situation.    However, the petitioner could argue this trait indicates a disinclination to act
impulsively, a positive characteristic reported in a subsequent evaluation of Lt. Ward.


          Dr. Tannenbaum’s report also fails to conclude whether Lt. Ward was fit for duty or not.
Instead, the report concludes, “It could be risky to return Lt. Ward to a watch commander
position on the midnight shift at this time.” The risk was in Lt. Ward’s alleged indecisiveness,
suspiciousness, and the possibility that he will not act timely if faced with a crisis situation. This
is precisely the type of vaguely worded conclusion the Supreme Court took issue with in Matter
of Vey:
                 In psychological reviews of applicants, evaluators may use
                 language containing euphemisms that are well understood by
                 others in the field to convey a diagnosis of mental dysfunction. If
                 that is so, then the diagnosis must be clearly stated because courts
                 are simply unable to review agency action if there is a coded way
                 of communicating significant medical findings.

                 If, on the other hand, the evaluator simply notes various personality
                 traits, then there ought to be some validation that the described
                 personality traits do in fact correlate to job performance.

                 [Vey, supra, 124 N.J. at 542.]


          Nevertheless, Dr. Tannenbaum was less vague about Lt. Ward’s ability to “perform
adequately in a desk job, if one is available.” This conclusion would be confirmed by every
subsequent evaluation of Lt. Ward. Therefore, it would appear that as of April 24, 1993, the date
of Dr. Tannenbaum’s report, Lt. Ward was capable of performing alternative “desk duty” without
command responsibility, up to and including December 20, 1994, the date the PFRS granted his
involuntary retirement application.



                                                  36
OAL DKT. NO. TYP 2740-95



        Dr. Tannenbaum was not called as a witness, and so the petitioner was unable to subject
him to cross-examination. His conclusions are equivocal and qualified. For example, his
conclusion that it “could be risky to return Lt. Ward to a watch commander position on the
midnight shift at this time”, suggests that the risk would have been mitigated (if not eliminated)
if Lt. Ward switched to the day shift or to a position other than watch commander. However, two
of Dr. Tannenbaum’s findings are significant: Lt. Ward appeared to be in need of continued
psychiatric treatment; and Lt. Ward was capable of performing desk duty. As discussed, infra,
Lt. Ward discontinued psychiatric treatment in April 1994, eight months before he was
involuntarily retired.


        Dr. Tannenbaum’s report does indicates a certain degree of self-denial on Lt. Ward’s part.
Psychological and psychiatric examinations are based in part on the examinee’s good faith
reporting of symptoms and answers to questions. According to Dr. Tannenbaum’s report, Lt.
Ward scored in the non-depressed range on the Beck Depression Inventory, indicating that he did
not believe he was depressed. This struck Dr. Tannenbaum as “odd,” since Dr. Palmieri’s report
made it clear that Lt. Ward was being treated for depression. Furthermore, Lt. Ward was actively
seeking to continue his treatment with Dr. Palmieri (at the Township’s expense), and other tests
(including the Mooney Problem Checklist and Rorschach Inkblot Test) indicated that Lt. Ward
suffered some of the symptoms of depression (e.g., feeling tired, sleeping poorly). It should be
noted that Lt. Ward was taking Prozac for depression at the time of Dr. Tannenbaum’s
evaluation.


        The eleven personality characteristics in Dr. Tannenbaum’s report are based on the
extensive battery of psychological tests of Lt. Ward. As discussed, infra, Dr. Goldman testified
that he relied substantially on these characteristics in forming his diagnosis and prognosis of Lt.
Ward. Dr. Goldman also admitted that he was not an expert in psychological testing.
                                Dr. Guller’s Evaluation Report


        On December 20, 1993, and January 5, 1994, Lt. Ward was evaluated by Dr. Irving
Guller, a psychologist and director of the IFP (and a colleague of Dr. Tannenbaum’s). Once
again, the resulting report by Dr. Guller suggests a screening examination: “The purpose of this


                                                37
OAL DKT. NO. TYP 2740-95


examination was to determine the presence, if any, of emotional or intellectual characteristics
which would detrimentally affect the subject’s performance in the role of public safety officer.”
However, unlike Dr. Tannenbaum’s report, Dr. Guller’s report correlates Lt. Ward’s personality
characteristics with job performance, and also addresses Lt. Ward’s fitness for duty.


         For this evaluation, Dr. Guller and the IFP administered seven separate psychological
tests: the Zung Depression Inventory; the California Psychological Inventory; the Sentence
Completion Test; the Minnesota Multiphasic Personality Inventory; the Rorschach43
Psychodiagnostic Test; the Thematic Apperception Test; and the Bender Visual Motor Gestalt
Test.


         In addition, Dr. Guller conducted two four-hour interviews with Lt. Ward, and examined
numerous documents, including Dr. Tannenbaum’s report, letters from Dr. Palmieri, and assorted
correspondence.
         Dr. Guller made several instructive observations in his report. First, it appeared to Dr.
Guller as though Lt. Ward weighed each response on the written tests very carefully, which
called into question the validity of his answers.                 Second, the Zung Depression Inventory
indicated that Lt. Ward denied the presence of clinical depression, while the Rorschach test
indicated that he remained depressed. Third, Dr. Guller described Lt. Ward’s good contact with
reality and “a growing optimism in this man” with “no inclination towards highly impulsive
responses.”      Dr. Guller qualified the latter observation: “However, when confronted with
emotion stimulating material . . . his ability to utilize analytical thinking deteriorates.” Fourth,
Dr. Guller observed that Lt. Ward had a paranoid orientation but not a paranoid pathology, and
obsessive compulsive characteristics but not an obsessive compulsive disorder. Fifth, Dr. Guller
noted that in performing similar examinations for over thirty years, his examination of Lt. Ward
was “one of the most complex ever undertaken by him.”


         Notwithstanding his implication that Lt. Ward was less than candid in his written
responses, Dr. Guller concluded in the report that Lt. Ward suffered from no clearly definable
psychopathology. This opinion would be confirmed by the subsequent evaluations performed by

43
   As a lay person, I assume that the various designations of what is commonly referred to as “Rorschach” all refer to
the same test.


                                                         38
OAL DKT. NO. TYP 2740-95


the petitioner’s psychologist, Dr. Slonim, and the respondent’s psychiatrist, Dr. Goldman.
Therefore, based on the record I FIND that as of January 14, 1994, the date of Dr. Guller’s
report, Lt. Ward was free of any clearly definable psychopathology, up to and including
December 20, 1994, the date the PFRS granted his involuntary retirement application.


       Dr. Guller described Lt. Ward in the report as somewhat depressed, inclined towards a
suspicious, mildly paranoid orientation, and feeling “significantly deteriorated” and angry.
Although not a danger to himself or others, and capable of having custody of a weapon, Dr.
Guller described Lt. Ward as having “a variety of long-standing, deeply ingrained, and still active
personality characteristics which in combination make him extraordinarily vulnerable to stress
disorders, inclined towards a deterioration of judgment under stress, and therefore unfit for duty
in his most recent capacity.” Thus, Dr. Guller’s conclusion that Lt. Ward was unfit to return to
duty as watch commander is somewhat less vague and more probative than Dr. Tannenbaum’s
conclusion that “[i]t could be risky to return Lt. Ward to a watch commander position on the
midnight shift at this time.” Dr. Guller’s report elaborates on Lt. Ward’s lack of fitness for duty
as watch commander:


               [Lt. Ward] is not capable of performing the duties that he had
               previously performed and if he is returned to that station it is
               predictable that he will suffer additional, and perhaps more severe,
               stress disorders. This is an individual who [is] quite angry about
               not being in full control and yet, as a lieutenant he is subordinate to
               superior officers who often make policy and may tell him to do
               things which are contrary to his own judgement. . . .

               It is understood that as a watch commander Lt. Ward would have
               to function as a de facto chief of police. We are significantly
               concerned that under the pressure of having to make rapid and
               astute decisions, with potentially serious consequences to self or
               others, his capacity for good judgement [sic] may well deteriorate.
               ...


       Addressing the issue of Lt. Ward’s future fitness for duty, Dr. Guller’s report states: “It is
very clear that the most humane resolution of the present situation would be for the Township to
cooperate in helping Lt. Ward obtain a disability retirement.” This conclusion suggests a bias




                                                 39
OAL DKT. NO. TYP 2740-95


toward finding Lt. Ward unfit for duty in order to facilitate his disability retirement. Dr. Guller
then went on to elaborate:


               [W]e believe that if returned to full duty, and especially to full duty
               as a watch commander, additional deterioration is predictable. As
               a police officer without command responsibility he was apparently
               able to function reasonably well, and he probably could do so at the
               present time. But this is an unfeasible solution since Lt. Ward
               could never accept the role of a patrolman, without command
               responsibilities, having risen to the level of lieutenant. . . .


       Thus, according to Dr. Guller’s report, Lt. Ward was not mentally incapacitated from
performing duties in the general area of his ordinary employment as a patrolman; however, Lt.
Ward could not accept the demotion to patrolman without command responsibilities. Dr. Guller
left it to the reader to reconcile this apparent contradiction. However, after Lt. Ward conveyed to
the Township that he would accept the role of patrolman, Dr. Guller followed up with a
confidential memorandum:


               I believe for practical purposes, Mr. Ward would not be able to
               function as a patrolman or a police officer without any command
               responsibility, in [the Cherry Hill Police Department]. . . .

               As you have correctly surmised, when I indicated that Mr. Ward is
               probably capable of performing the role of police officer without
               any command responsibilities, I was referring to the abstract
               concept of police officer responsibilities and did not entertain the
               idea that he would seriously consider trying to do that in his
               present jurisdiction. . . .


       In his original report, Dr. Guller stated that Lt. Ward “could never accept” the role of a
patrolman, but in the follow-up confidential memorandum, Dr. Guller stated that Lt. Ward
“would not be able to function” as a patrolman.            From a layman’s point of view, this
memorandum reads like a recantation and revision of Dr. Guller’s original conclusion, not a
clarification, especially considering it came on the heels of Lt. Ward’s request to return to duty as
a patrolman.




                                                 40
OAL DKT. NO. TYP 2740-95


                          Dr. Slonim’s Evaluation Report & Testimony


       In February 1994, presumably for the purpose of rebutting Dr. Guller’s report, Lt. Ward
sought an evaluation from Dr. Philip Slonim, director of psychology for the Camden County
Health Services Center.


       Dr. Slonim administered four tests: the “MMPI, Rorschach, Thematic Apperception Test,
and the Incomplete Sentence Blank.”44 In addition, Dr. Guller conducted a clinical interview
(approximately three hours), and examined the prior evaluations by Dr. Tannenbaum and
Dr. Guller as well as treatment reports by Dr. Palmieri.


       Dr. Slonim’s report was significantly shorter than the reports by Dr. Tannenbaum and
Dr. Guller. However, Dr. Slonim also had the benefit of those previous evaluation reports.
According to Dr. Slonim’s report, his psychological test results indicated that Lt. Ward had
developed “increased tools to manage difficulty,” and was not an “emotionally labile individual.”
Dr. Slonim’s report ended with the following conclusion: “It is my opinion based on reasonable
psychological certainty that Lieutenant Ward has the requisite psychological strengths and
abilities along with the absence of demonstrable psychopathology to reassume his prior position
within the Township of Cherry Hill Police Department.”


       Dr. Slonim, who has been evaluating candidates for law enforcement positions and
promotions for approximately twenty years, and has treated approximately ten police officers in
his career, testified on behalf of Lt. Ward. He confirmed Dr. Guller’s finding that Lt. Ward
suffered from no active psychopathology at the time of the evaluation.
       Dr. Slonim also found that Lt. Ward’s posttraumatic stress disorder and obsessive
compulsive disorder were in remission. This opinion would be confirmed by Dr. Goldman’s
subsequent evaluation. Therefore, I FIND that as of February 5, 1994, the date of Dr. Slonim’s
report, Lt. Ward’s posttraumatic stress disorder and obsessive compulsive disorder were in




44
  According to the evaluations, Dr. Tannenbaum administered the “Rorschach Ink Blots Test”, Dr. Guller
administered the “Rorschach Psychodiagnostic Test”, and Dr. Slonim administered the “Rorschach.” This
memorandum presumes these are all the same test.


                                                 41
OAL DKT. NO. TYP 2740-95


remission, up to and including December 20, 1994, the date the PFRS granted his involuntary
retirement application.


       During testimony, Dr. Slonim essentially reiterated his findings from the February 5,
1994 report. He testified that Lt. Ward was asymptomatic, and he observed nothing within Lt.
Ward “from a psychological perspective that would preclude his [resumption of] his previous
responsibilities within the [Cherry Hill Police Department].”          In his opinion, Lt. Ward’s
posttraumatic stress disorder was triggered by the “shift to the night work” and “[c]hange in
shift”, but did not explain why Lt. Ward only began to exhibit symptoms in 1992, three years
after his shift first changed. He found it significant that Lt. Ward exhibited good judgment by
voluntarily removing himself from active duty and seeking treatment for his psychological
problems in December 1992.


       Dr. Slonim also testified that Lt. Ward experienced psychological maturity and growth as
a result of his difficulties, and it was unlikely the stressors which caused him to decompensate
then would affect him in the same way. However, this testimony was not reflected in Dr.
Slonim’s February 5, 1994 report. It should be noted that Dr. Slonim conducted a second
evaluation of Lt. Ward in 1995, after the PFRS approved the involuntary retirement application.


       In response to questions I asked, Dr. Slonim admitted that he knew Lt. Ward’s desire to
return to duty prior to the first evaluation. He also acknowledged that a particular psychological
disorder does not necessarily preclude a person from working--it would depend upon the
position, the attendant responsibilities and how the disorder interacts with those responsibilities.


       Dr. Slonim did not correlate Lt. Ward’s personality characteristics with job performance,
either in his report or his testimony. His February 5, 1994 report did not recommend a return to
duty with graduating responsibilities (or even a switch to the day-shift) but a full reassumption of
duty as watch commander, despite the fact that Lt. Ward’s disorders were service-related and he
had not served on active duty (at the time of the report) for fourteen months.


       Dr. Goldman testified that he found contradictions in Dr. Slonim’s report. For example,
according to the report, Dr. Slonim concluded that Lt. Ward was superficially social and not


                                                 42
OAL DKT. NO. TYP 2740-95


particularly outgoing or open and felt that he should keep his inner-most feelings to himself.
However, Dr. Slonim interpreted one of the Rorschach responses by Lt. Ward (“Some type of
stringed instrument, but I don’t see the strings on it, with the veneer peeling away”) to mean that
Lt. Ward’s “macho veneer” was “peeling away,” a sign of seeking and accepting help. In
Dr. Goldman’s opinion, there was no evidence at that time to suggest a change in Lt. Ward’s
functioning, and Lt. Ward’s Rorschach response indicated that Lt. Ward felt himself to be
“coming apart” (as indicated by the lack of strings on the violin). These contradictions suggested
to Dr. Goldman that Dr. Slonim was “trying to provide a most favorable report.”


       Dr. Slonim is not a physician, and his professional opinion does not serve to rebut
Dr. Goldman’s medical opinion. However, subject to my assessment of his credibility and
demeanor during the hearing, Dr. Slonim’s opinion is a basis for determining that Lt. Ward was
not mentally incapacitated from performing duties in the general area of his ordinary employment
as of February 5, 1994, the date of Dr. Slonim’s report.


                           Dr. Goldman’s Evaluation & Testimony


       On September 19, 1994, Lt. Ward was evaluated by Dr. Arnold Goldman, a licensed
psychiatrist, on behalf of the PFRS.      According to his testimony, Dr. Goldman has been
conducting evaluations on behalf of the Division of Pensions for eight to nine years, averaging
three to four evaluations a year. Before Lt. Ward, Dr. Goldman never conducted a psychiatric
evaluation for the Division of Pensions on an involuntary basis.


       Dr. Goldman interviewed Lt. Ward for about an hour, the shortest diagnostic interview of
all of the evaluators. He did not conduct any tests, but relied upon the following evaluations and
documents for his clinical opinion: 1) an admission report from West Jersey Hospital, dated
June 7, 1992, regarding Lt. Ward’s admittance for chest pain (apparently induced by his yelling
at subordinates); 2) a discharge summary from Wilson Memorial Hospital in North Carolina,
where Lt. Ward stayed for three days in December 1992; 3) a discharge summary from the
Carrier Clinic, where Lt. Ward stayed for three days in December 1992; 4) Dr. Palmieri’s notes
from February 1993 to December 1993; 5) Dr. Tannenbaum’s evaluation report; 6) Dr. Guller’s
evaluation report; 7) Dr. Philip Slonim’s evaluation report; 8) the memorandum from Lt. Ward to


                                                43
OAL DKT. NO. TYP 2740-95


Captain Daniello in February 1993, requesting the funding of psychiatric treatment; 9) the
memorandum from Chief Moffett to Lt. Ward, dated February 26, 1993, requesting additional
information on his alleged psychiatric condition; 10) a memorandum from Captain Daniello to
Chief Moffett, regarding the confiscation of Lt. Ward’s department-issued service weapon;
11) the job specifications of a police lieutenant; 12) and a report by the Camden County Office of
the Prosecutor, concerning the confiscation of Lt. Ward’s department-issued service weapon and
Lt. Ward’s subsequent complaint.


       Dr. Goldman issued an evaluation report, dated December 3, 1994, diagnosing Lt. Ward
with posttraumatic stress disorder, in remission, and obsessive compulsive disorder, in remission.
Dr. Goldman testified that “remission” meant the disorders were not active at the time. In the
report, he agreed with the prior evaluations that Lt. Ward had no active psychopathology. He
also testified that he saw no problem with Lt. Ward functioning at a desk job. He concluded in
the report that Lt. Ward “cannot return to the duties of police work which require dealing with
unpredictable and highly stressful events, whether it be in his former position of command or
even as a patrolman, as he requested.” His rationale was that:


               Lieutenant Ward admits to having a disability, and all seem to
               agree. However, what is most impressive and possibly overlooked
               by his attorney and Lieutenant Ward is the likelihood of having
               another episode of post-traumatic stress disorder or obsessive-
               compulsive disorder in response to stress or situations which
               remind him of the initial traumatic events leading to PTSD. By his
               own history, the stress began with the 3-to-11 shift and worsened
               with the 11-to-7 shift, bringing about much more drinking to
               control his stress and a return of obsessive-compulsive symptoms
               and progressive marital problems, with finally a desire to escape to
               Florida in December of 1992 for a brief period of time. . . . It is
               extremely frightening to the public and hazardous to fellow
               officers, as well as the officer himself, to have a condition in which
               he is unable to use firearm in a life-threatening situation or have to
               compulsively check on his weapon or suffer decompensating stress
               dealing with human tragedies confronting a law enforcement
               officer.45




                                                44
OAL DKT. NO. TYP 2740-95


        At the hearing, Dr. Goldman testified that he felt Lt. Ward was “unable to return to work
as a police officer in any capacity, because of the stress the job would entail as well as the lack of
evidence that there had been effective treatment. He had not been in the situation of a police
officer since being retired, or being relieved of his duty. There was no way of testing that he
would not decompensate under that stress again.” Dr. Goldman further testified that Lt. Ward
would “not be able--he potentially would not be able to perform the duties of a police officer, in
any capacity. I do not feel he would be able to handle a gun at the time, due to the obsessive
compulsive disorder. And with the posttraumatic stress disorder, whether he would further
decompensate, be confronted with similar situations, which precipitated that disorder.”


        In layman’s terms, Dr. Goldman found Lt. Ward to be functional, though not entirely free
of dysfunction. However, if Lt. Ward returned to duty, either in his former role as a police
lieutenant or as a patrol officer, Dr. Goldman predicted that Lt. Ward would suffer a relapse
which would inhibit his performance. According to Dr. Goldman, if Lt. Ward encountered an
incident involving human tragedy or requiring him to use his weapon, it might trigger his
posttraumatic stress disorder. A change in shift to daytime hours would have enabled Lt. Ward
to manage his posttraumatic stress disorder, Dr. Goldman admitted, but if Lt. Ward faced
incidents similar to those which first gave rise to his posttraumatic stress disorder--even during
daytime hours--it could induce the disorder again. These disorders would not necessarily disable
a person from having a particular job. However, as Dr. Goldman saw it, Lt. Ward was uniquely
vulnerable because his disorders arose out of his job.


        There are four significant (but not cumulatively fatal) flaws in Dr. Goldman’s evaluation
methodology. First and foremost, his one-hour diagnostic interview with Lt. Ward is distressing
in its brevity--all the more so considering Lt. Ward was contesting his disability. Ironically, Dr.
Goldman characterized his one-hour interview of Lt. Ward as “extensive.”                        By way of
comparison, Dr. Guller conducted two four-hour interviews with Lt. Ward. Indeed, Dr. Goldman
acted less like the examining physician the code required and more like the Medical Review
Board. He relied almost entirely upon the evaluation reports before forming his opinion, leaving
the Medical Review Board to review his review, and the PFRS to review the Medical Review

45
  Along with the report, Dr. Goldman enclosed a copy of the posttraumatic stress disorder description from the
Diagnostic and Statistical Manual of Mental Disorders III-R, highlighting the pertinent sections.


                                                     45
OAL DKT. NO. TYP 2740-95


Board’s review of his review of the prior evaluations. As a consequence, I am compelled to
analyze the prior evaluation reports which Dr. Goldman relied upon with far greater scrutiny than
would have otherwise been necessary had Dr. Goldman taken the time to interview Lt. Ward
“extensively,” as that word is commonly understood.


       Second, Dr. Goldman testified that Lt. Ward would decompensate under the stress of
police work, though there was no way of testing to be certain. However, Dr. Goldman also
admitted that he did not ask Lt. Ward about his duties and responsibilities as an insurance
adjuster during the diagnostic interview. No doubt a law enforcement officer’s job entails greater
risk and stress than an insurance adjuster’s.         But as the petitioner argues, conducting a
comparative analysis of Lt. Ward’s duties as an insurance adjuster versus his duties of a police
officer would have given Dr. Goldman a glimpse of what Lt. Ward was then capable of, and
perhaps a better understanding of whether Lt. Ward would have decompensated under the stress
of police work. Unfortunately, Dr. Goldman conducted no such analysis.


       Third, Dr. Goldman apparently labored under the misimpression that one of the triggering
events in Lt. Ward’s past--his inability to draw his gun from his holster during a high-speed
chase in 1976--was due to a mental inability, i.e., Lt. Ward froze, when in fact he was unable to
draw due to a physical inability, i.e., Lt. Ward testified that the gun was twisted in the holster and
jammed in the car seat.       However, Dr. Goldman’s “misimpression” underscores the vital
dependence each evaluator had upon Lt. Ward’s honest and good faith reporting of symptoms
and participation. According to Dr. Palmieri’s report, Lt. Ward reported that he “could not
remove his gun from his holster.” According to Dr. Tannenbaum’s report, Lt. Ward reported that
he “was unable to get his gun out of the holster.” According to Dr. Guller’s report, Lt. Ward
reported that he “could not draw his weapon.” Dr. Slonim, the psychologist Lt. Ward hired to
evaluate him, does not even refer to the gun incident in his report. None of the reports made
clear that Lt. Ward’s gun twisted in the holster and jammed in the car seat, as Lt. Ward made
clear in his testimony. Dr. Goldman can hardly be faulted for laboring under a misimpression if
Lt. Ward allowed the misimpression, and perhaps even encouraged it. During the evaluations by
Dr. Tannenbaum, Dr. Guller, and Dr. Goldman, Lt. Ward was reluctant to participate, at best,
deceitful in his reporting, at worst, and less than fully cooperative, for certain. Dr. Guller noted
that Lt. Ward weighed each response on the written tests very carefully, which affected (in


                                                 46
OAL DKT. NO. TYP 2740-95


Dr. Guller’s opinion) the validity of Lt. Ward’s answers. Lt. Ward brought a paralegal or an
attorney to each interview. He consciously denied having symptoms that were indicated by the
psychological tests. He refused to allow Dr. Tannenbaum to supplement the first evaluation by
contacting his treating psychiatrist, Dr. Palmieri, yet his counsel faults Dr. Goldman for not
contacting Dr. Palmieri. Prior to his evaluation by Dr. Guller, Lt. Ward signed the IFP standard
general release form with a notation that he was being reevaluated by the Cherry Hill Police
Department under protest. No doubt, Lt. Ward participated in Dr. Goldman’s evaluation under
protest and gave calculated answers and responses, as well.         Nevertheless, Dr. Goldman
apparently misunderstood the 1976 incident as recounted by Lt. Ward, and admitted that his
misunderstanding made “a difference.” This difference was not elaborated on by Dr. Goldman,
and does not negate the fact that Lt. Ward had an obsessive compulsive association with his
weapon (although at no time did Lt. Ward evince any tendency to misuse a weapon).


       Fourth and finally, Dr. Goldman, a psychiatrist, substantially relied on the evaluation
reports of two psychologists, Dr. Tannenbaum and Dr. Guller, even though he admitted under
cross-examination that “I am not an expert in psychological testing” and “I relied on Dr. Guller’s
conclusions from his--assimilating all the data.”       If not for the fact that psychiatry and
psychology are complimentary disciplines, so that a psychologist’s evaluation can be considered
“of a type reasonably relied upon” by psychiatrists in forming opinions, Dr. Goldman would not
even qualify as an expert witness under N.J.R.E. 703.


       The petitioner has identified these four flaws in Dr. Goldman’s evaluation of Lt. Ward.
However, the petitioner’s other arguments are unavailing.


       The petitioner argues that Dr. Goldman’s opinion constitutes a “net opinion,” a bare
conclusion unsupported by factual evidence. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540
(App. Div. 1996).    This argument can best be addressed with a summarized recitation of
Dr. Goldman’s testimony. Dr. Goldman testified to examining the December 1992 discharge
summary from Wilson Memorial Hospital, which indicated that Lt. Ward suffered borderline
traits and an adjustment disorder with depressive mood. He testified to examining the December
1992 discharge summary from the Carrier Clinic, which indicated that Lt. Ward was suffering
from alcoholism, posttraumatic stress disorder and obsessive compulsive disorder with


                                               47
OAL DKT. NO. TYP 2740-95


depression, and a death wish. He testified to examining Dr. Tannenbaum’s and Dr. Guller’s
reports, including the eleven personality characteristics identified in Lt. Ward (indeed, most of
his direct testimony consisted of him reading aloud from Dr. Tannenbaum’s and Dr. Guller’s
reports and the Diagnostic and Statistical Manual, IV). He testified to examining Dr. Palmieri’s
notes, which indicated that from August 1993 onward, Lt. Ward was having difficulty with
anxiety, angry outbursts, rage, increased compulsiveness and manic-like behavior, necessitating
an increase in his medication. He testified to examining Dr. Slonim’s February 5, 1994 report,
finding it contained a number of contradictions which, in Dr. Goldman’s opinion, undermined
Dr. Slonim’s conclusion. He testified that based on his review, Lt. Ward had not undergone any
significant long-term successful therapy, as indicated by the notes of Dr. Palmieri, Lt. Ward’s
treating psychiatrist. Dr. Goldman also testified that he reviewed the job description of a police
officer and police lieutenant in forming his prognosis, although this review was based on the
overall impression of what Lt. Ward was capable of doing.46 He was the only witness competent
to review Lt. Ward’s medical records and the pscyhophysiological affect of his on-going
medication. Dr. Goldman’s opinion was supported by the foregoing factual evidence and does
not constitute a “net” opinion.


        The petitioner argues that Dr. Goldman did not conclude within a reasonable degree of
medical certainty that: Lt. Ward could not adequately perform his duty; Lt. Ward would not have
a relapse and thereby pose a substantial likelihood of serious harm to himself or others; or when
Lt. Ward’s disorders would abate or whether he would decompensate under stress on the job.
Medical expert testimony must be couched in terms of reasonable medical certainty or
reasonable medical probability; opinions as to reasonable medical possibility are inadmissible.
Johnesee v. Stop & Shop Cos., Inc., 174 N.J. Super. 426, 431 (App. Div. 1980). However, as the
respondent asserts, “there is rarely, if ever, any objective medical test which can be performed
regarding psychiatric and/or psychological conditions, the trier of fact must assess the credibility
of the witnesses presented to him by the parties.” Dr. Goldman did not couch his opinion in


46
   On cross-examination, Dr. Goldman admitted that Lt. Ward was capable of performing the administrative duties of
a police lieutenant, much of which involves administrative duties. However, it bears repeating that the standard for
ordinary disability retirement is whether or not Lt. Ward was mentally incapacitated from performing duties in the
general area of his ordinary employment, i.e., police work, as distinguished from the specific function of police
lieutenant.



                                                        48
OAL DKT. NO. TYP 2740-95


proper legal terms such as “reasonable medical certainty” or “reasonable medical probability.”
But considering his qualifications, his factual foundation and reasoning, my finding as to his
credibility and demeanor, and the lack of an expert medical witness to offer rebuttal testimony,
Dr. Goldman’s opinion rises at least to the level of reasonable medical probability, if not
reasonable medical certainty.


       The petitioner argues that the presence of Lt. Ward’s attorney negatively impacted
Dr. Goldman’s opinion.     There is no doubt that Dr. Goldman drew an inference from the
presence of Lt. Ward’s attorney. In his report to the PFRS, Dr. Goldman stated: “I pondered why
he had to have a legal representative at his testing and during my interview, and can only surmise
that it gave him some sense of control and security. He additionally has a tendency toward
paranoid thinking and is resentful of authority, which could be an additional factor in having
legal representation present.” The petitioner cites to B.D. v. Carley, 307 N.J. Super. 259 (App.
Div. 1998), for the proposition that Lt. Ward had a right to bring counsel in with him during the
evaluation. If Lt. Ward had the right to bring his attorney, the petitioner seems to imply with this
argument, then it was improper for Dr. Goldman to draw a negative inference. The Appellate
Division in B.D. v. Carley overruled an earlier opinion, Stoughton v. B.P.O.E. No. 2151, 281 N.J.
Super. 605 (Law Div. 1995), insofar as Stoughton generally limited--without special reasons--
“the presence of counsel or a representative at physical examinations (other than psychological or
psychiatric examinations). . . .” B.D. v. Carley, supra, 307 N.J. Super. at 262. In other words, the
Appellate Division in B.D. v. Carley allowed Stoughton to stand insofar as it limited the presence
of attorneys during psychological or psychiatric examinations.          The Court in Stoughton
articulated the problem with the presence of attorneys:
               It is imperative that a psychiatric evaluation take place in a
               comfortable, non threatening environment. With the addition of an
               outside party, matters of personal sensitivity may be compromised.
               Patients may also be concerned how responses are perceived by
               third parties, thus compelling them to withhold or misstate
               information. . . .

               [Stoughton, supra, 281 N.J. Super. at 610-611.]


       Although the petitioner argues that the presence of Lt. Ward’s attorney colored
Dr. Goldman’s opinion, it is equally likely the presence of his attorney colored Lt. Ward’s


                                                49
OAL DKT. NO. TYP 2740-95


answers. Regardless, there is no case law to support the proposition that a psychiatrist’s negative
inference of an attorney’s presence is improper. Dr. Goldman drew an inference from a personal
observation and did not accord it undue significance.


       The petitioner argues that by virtue of Lt. Ward’s lack of active psychopathology and
symptomology, he was not mentally incapacitated for retirement. It is true that Dr. Goldman
diagnosed Lt. Ward with no active psychopathology and with posttraumatic stress disorder and
obsessive compulsive disorder, both in remission. However, it was Dr. Goldman’s prognosis
that Lt. Ward could not “return to the duties of police work which require dealing with
unpredictable and highly stressful events, whether it be in his former position of command or
even as a patrolman, as he requested.” Whether Lt. Ward was properly retired for ordinary
disability depends upon Dr. Goldman’s prognosis as well as his diagnosis, the two of which
constitutes his medical opinion. See Crain v. State Dept. of the Treasury, Div. of Pensions, 245
N.J. Super. 229, 238 (App. Div. 1991) (“[W]hether Sergeant Crain can be [involuntarily] retired
for disability depends upon his medical condition and prognosis”).


       The petitioner makes a number of other arguments, e.g., the symptomology of Lt. Ward’s
obsessive compulsive disorder--constantly checking his holstered weapon--was not an
impediment to his performance, he showed no tendency to misuse a gun, his marital troubles
were resolved, he was no longer abusing alcohol, his psychiatric treatment was successful, etc.
All of these remaining arguments are attempts to rebut Dr. Goldman’s medical opinion.
However, Dr. Goldman is a licensed psychiatrist. The proper way to rebut his opinion is by
calling a psychiatrist to offer rebuttal testimony.


       An example helps illustrate the problem with the petitioner’s arguments. According to
the report of Dr. Slonim, he showed Lt. Ward a Rorschach inkblot. Lt. Ward identified it as
“[s]ome type of stringed instrument, but I don’t see the strings on it, with the veneer peeling
away.” Dr. Slonim interpreted that response to mean Lt. Ward’s “macho veneer” was “peeling
away” and he was seeking and accepting help, a sign of emotional maturation and growth. Dr.
Goldman interpreted the same Rorschach response to mean that Lt. Ward felt like “he was
coming apart. No strings on the violin. Therefore, he couldn’t function and the veneer was
coming off, which means it’s further deteriorating.” The petitioner should have called Dr.


                                                  50
OAL DKT. NO. TYP 2740-95


Palmieri to testify that Lt. Ward had been treated successfully with therapy and medication,
notwithstanding Lt. Ward’s response to any particular inkblot. Instead, the petitioner called Lt.
Ward to testify that he was fit for duty during the relevant time frame, and Dr. Slonim to confirm
Lt. Ward’s self-diagnosis.


       There are sufficient facts in evidence to support Dr. Goldman’s prognosis that Lt. Ward
would have likely decompensated under the stress of police work and was therefore mentally
incapacitated from performing duties in the general area of his ordinary employment.


       Lt. Ward requested sick leave on December 9, 1992. That same month, his psychiatric
symptoms became so acute, he required hospitalization twice. Two months later, he notified
John Hancock Mutual Life Insurance Co. that he was totally disabled and unable to work as of
February 26, 1993. On or about the same day, Debra J. Ward, wrote a letter to Mayor Levin,
urging the Township to fund her husband’s psychiatric treatment for his “temporary mental
problems . . . which have been directly caused by his duties as a police officer in Cherry Hill,”
emphasizing the word, directly.       As late as December 1993, his treating psychiatrist, Dr.
Palmieri, noted that he was having trouble controlling his emotions and required additional
medication. Four months later, in April 1994, by his own admission, Lt. Ward voluntarily
discontinued treatment with Dr. Palmieri, deciding that “I really didn’t need him anymore.” Lt.
Ward believed that he had conquered his disorders by this time with behavior modification
techniques and the support of his family. Unfortunately, Dr. Palmieri was not called as a witness
to provide the record with a second opinion of Lt. Ward’s self-diagnosis.


       When Lt. Ward was retired, in December 1994, he had not served as a police officer for
two years. He was not in therapy and presumably not on any medication, yet he sought (and
continues to seek) to return to the same work and potentially the same precipitating stressors that
“directly” caused his posttraumatic stress disorder in the first place.


       Assessing the total record and each piece of evidence by its appropriate probative value,
and subject to my findings of witness credibility and demeanor, I CONCLUDE that the
respondent Board of Trustees of the Police and Firemen’s Retirement System has established by
a preponderance of the relevant credible evidence that Lt. Ward met the statutory criterion for


                                                  51
OAL DKT. NO. TYP 2740-95


ordinary disability retirement as of December 20, 1994, because he was mentally incapacitated
from performing duties in the general area of his ordinary employment, i.e., police work.


                                     Willingness to Assign


       Lt. Ward was involuntarily retired under the Police and Firemen’s Retirement System,
based on Dr. Goldman’s prognosis that Lt. Ward would likely decompensate under the stress of
police work. However, Dr. Goldman agreed with every other evaluator that Lt. Ward was fit for
desk duty, i.e., administrative duty with no command responsibilities. In an ordinary disability
retirement, the Police and Firemen’s Retirement System requires the retiree to be mentally
incapacitated “for the performance of his usual duty and of any other available duty in the
department which his employer is willing to assign to him. . . .”           N.J.S.A. 43:16A-6(1)
(emphasis added). Therefore, if the Cherry Hill Police Department and the Township had been
willing to assign Lt. Ward to administrative duty with no command responsibilities, Lt. Ward
would not have been eligible for ordinary disability retirement, even if he had voluntarily applied
for it. However, the Township was unwilling to assign him to administrative duty, and filed an
involuntary retirement application on his behalf. Under the employer certification portion of the
application, the employer is asked whether there is “other duty available which may be assigned
and which he can perform?”, replicating the language of the statute, and calling for a “yes” or
“no” answer without space for explanation. The Township answered this question with “no”.


       The petitioner argues that since Lt. Ward was cleared for desk duty by every evaluator, it
was incumbent upon the PFRS to determine whether there were other assignments which the
Cherry Hill Police Department could have reasonably made available to him. The respondent
argues that the PFRS does not have the authority to determine if an employer certification is
accurate or not, and its role is limited to determining whether an application should be granted
based on the information provided by the employer and the Medical Review Board. The
petitioner is correct--the PFRS had an affirmative duty to determine whether there were other
assignments which the Cherry Hill Police Department could have reasonably made available to
Lt. Ward before it granted his involuntary retirement application.




                                                52
OAL DKT. NO. TYP 2740-95


        Although the statutory language implies a discretion on the part of the employer in
offering other available duty, that discretion is not entirely arbitrary. Crain v. State Dept. of the
Treasury, Div. of Pensions, supra, 245 N.J. Super. at 238. In Crain, supra, a state trooper
appealed a final decision of the Board of Trustees of the State Police Retirement System
(“Board”), which found him totally and permanently disabled.             The Board approved his
involuntary application for disability retirement, pursuant to N.J.S.A. 53:5A-9 (which parallels
the key language of N.J.S.A. 43:16A-6). The Appellate Division reversed the Board, ruling, inter
alia:
               As we have pointed out, the statutory test for disability retirement
               is whether the prospective retiree is "incapacitated for the
               performance of his usual duty and of any other available duty
               in the Division of State Police which the Superintendent ... is
               willing to assign to him ...." N.J.S.A. 53:5A-9a. (emphasis
               added.) Sergeant Crain argues that the strenuousness of the duties
               to which members of the State Police are assigned varies with rank
               and that State Troopers' physical capacities diminish with age, even
               in the absence of heart disease. He therefore disputes the
               contention of the Division of Pensions that every State Trooper
               must be capable of performing every duty. He contends that even
               if his capacity is impaired, there are some regular duty assignments
               that he could readily perform and that the Superintendent should be
               willing to assign to him. We agree that the quoted statute may
               not be interpreted to give the Superintendent entirely arbitrary
               discretion. Even if the undisputed fact that Sergeant Crain
               underwent coronary by-pass surgery is itself sufficient to
               establish the extent of his disability, a hearing is necessary so
               that the Board of Trustees can determine whether there are
               assignments that he is capable of performing which could
               reasonably be made available to him.

               [Crain, supra, 245 N.J. Super. at 238 (emphasis added).]


        The Appellate Division remanded the case to the Board and ruled that if there was a
genuine dispute about whether the Superintendent of State Police could reasonably assign duties
within the capacity of the state trooper, the matter should be transferred to the Office of
Administrative Law.


        In the present matter, the PFRS accepted the Township’s certification that it was
unwilling to assign Lt. Ward to any other available duty without any further inquiry. As


                                                 53
OAL DKT. NO. TYP 2740-95


discussed, supra, Lt. Ward was cleared for alternative desk duty by the Township’s evaluating
psychologists, Dr. Tannenbaum and Dr. Guller, as well as the PFRS’s psychiatrist, Dr. Goldman.
Therefore, the question that remains is whether the Township could have reasonably assigned Lt.
Ward to alternative desk duty prior to (or as of) December 20, 1994, the date the PFRS granted
his ordinary disability pension.


       Ironically, the closest analogue to the test in Crain, whether the employer could have
“reasonably made available” duties within his or her capacity, is the “reasonable
accommodation” standard under the Law Against Discrimination, even though the Appellate
Division ruled that the Law Against Discrimination was outside the scope of this proceeding.
However, for purposes of comparative analysis, this opinion will use the “reasonable
accommodation” standard as guidance in determining whether the Township meets the test in
Crain, keeping in mind that the Township has more discretion under Crain and N.J.S.A. 43:16A-
6 than it would under the discrimination statutes.


       Under N.J.A.C. 13:13-2.5 of the Regulations Pertaining to Discrimination on the Basis of
Handicap:


               (b) An employer must make a reasonable accommodation to the
               limitations of a handicapped employee or applicant, unless the
               employer can demonstrate that the accommodation would impose
               an undue hardship on the operation of its business. The
               determination as to whether an employer has failed to make
               reasonable accommodation will be made on a case-by-case basis.
               ...

                       3. In determining whether an accommodation would
                       impose undue hardship on the operation of an employer’s
                       business, factors to be considered include:

                               i. The overall size of the employer’s business with
                               respect to the number of employees, number and
                               type of facilities, and size of budget;

                               ii. The type of the employer’s operations, including
                               the composition and structure of the employer’s
                               workforce;




                                                54
OAL DKT. NO. TYP 2740-95


                              iii. The nature and cost of the accommodation
                              needed; and

                              iv. The extent to which accommodation would
                              involve waiver of an essential requirement of a job
                              as opposed to a tangential or non-business necessity
                              requirement.


       In the present matter, most of the key facts in the present matter are not in dispute. Lt.
Ward was cleared for alternative desk duty without command responsibilities by the evaluators.
Nevertheless, Chief Moffett, chief of police of the Cherry Hill Police Department, testified that
he (and by extention, the Township) was “unwilling” and “unable” to assign Lt. Ward to
alternative desk duty at the time the involuntary retirement application was filed. It is notable
that the respondent regards Chief Moffett’s simple reiteration of the statutory language as
sufficient to discharge the duty of the PFRS, prompting the concern that the PFRS will make the
same mistake again during the next involuntary retirement application process. The Appellate
Division in Crain imputed an affirmative duty to the Board of Trustees of the State Police
Retirement System (and by extension to the PFRS) to hold a hearing or refer the matter to the
Office of Administrative Law if the member to be involuntarily retired disputes that his or her
employer could not reasonably assign duties within his or her capacity. This hearing should
precede the grant of the retirement application, not follow it, as in the present matter. It is not
enough for the employer to simply certify that it is unwilling to assign other available duty if the
member to be retired disputes the reasonable availability of other duty.
       Chief Moffett denied there was any official policy of providing light duty to officers who
suffered from disabilities, but admitted under cross-examination that if a position was vacant or
available, and if a disabled officer was qualified, he would place the officer in that position on a
temporary basis. Examples of this “accommodation” included an officer with an unidentified
psychiatric problem who was permitted to work in “dispatching.”


       According to Joint Exhibit No. 2, the internal report by Captain Melson and
Ms. Jacobucci, Esq., the Township’s rationale for not offering Lt. Ward alternative desk duty was
that the Cherry Hill Police Department used civilians for “certain inside administrative functions
in order to maximize the number of police officers that are available for duty. . . .” To
accommodate Lt. Ward with an alternative desk duty position “would be inconsistent with the


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OAL DKT. NO. TYP 2740-95


business and public policy necessity that is associated with municipal law enforcement
operations and could cause undue hardship for the Township of Cherry Hill,” notwithstanding
the fact that Chief Moffett admitted under cross-examination that such accommodations have
been made in the past. From the Township’s perspective, “a reasonable and responsible person
could not, in good conscience, allow Mr. Ward to provide services to the public, as a police
officer or through accommodation in some other capacity, with the knowledge that his
psychological impairment could render him vulnerable to stress disorders.” Thus, the Township
couches its refusal to accommodate Lt. Ward in public policy, objective reasonableness and
“undue hardship” terms.


       The Township’s policy considerations are compelling. A police officer bears a unique
degree of responsibility to his or her community:


               It must be recognized that a police officer is a special kind of
               public employee. His primary duty is to enforce and uphold the
               law. He carries a service revolver on his person and is constantly
               called upon to exercise tact, restraint and good judgment in his
               relationship with the public. He represents law and order to the
               citizenry and must present an image of personal integrity and
               dependability in order to have the respect of the public, particularly
               in a small community . . . .

               [Moorestown Tp. v. Armstrong, 89 N.J. Super. 560, 566 (App. Div.
               1965).]


       The Township’s “undue hardship” considerations are equally compelling. One can infer
from the facts that it would have been financially burdensome to the Township to post a high-
ranking officer in a low-level position without command responsibilities.          N.J.A.C. 13:13-
2.5(b)(3)(iii). One may also consider the “type of the employer’s operations,” i.e., police work,
to be the type that requires the maximum number of police officers to be available for
mobilization at any given time, as was suggested by the Township’s internal report. N.J.A.C.
13:13-2.5(b)(3)(ii). Along the same lines, accommodating Lt. Ward under these circumstances
would involve a “waiver of an essential requirement of a job as opposed to a tangential or non-
business necessity requirement.” N.J.A.C. 13:13-2.5(b)(3)(iv).




                                                56
OAL DKT. NO. TYP 2740-95


       Had the respondent elicited the appropriate testimony from Chief Moffett, it might have
prevailed even in a discrimination case under the reasonable accommodation standard.           In
Ensslin v. Township of North Bergen, 275 N.J. Super. 352 (App. Div. 1994), a former police
sergeant appealed a decision by the Township of North Bergen (“Township”) in terminating his
employment because he could not perform the essential duties of his position, and his disability,
paraplegia, could not be feasibly accommodated.         During a hearing before the Office of
Administrative Law, the ALJ found that the police sergeant was “capable of performing
administrative and clerical duties with only slight modifications to the work area, but was unable
to intervene in physical situations, such as apprehension and securing of suspects and prisoners.”
Id. at 358. However, even if the Township created a special position for the police sergeant
involving strictly administrative work with no physical duties, the ALJ found that the
Township’s police department “required and expected each officer, regardless of the officer’s
assignment, to be capable of responding to ‘emergency situations’ and to be available as a
reserve or ‘back-up’ to fellow officers as needed.” Id. at 359. The Merit System Board adopted
the findings of fact and agreed with the Township that termination was warranted. On appeal,
the Appellate Division affirmed, finding, inter alia, the evidence supported the conclusion that:
the apprehension and securing of suspects and prisoners was an essential duty of the police
sergeant’s position; there was no clerical or administrative position available to accommodate his
disability; accommodation was not feasible given that the employer had no obligation to waive
performance of essential functions; and the police sergeant was unable to perform the functions
which were identified as essential. Id. at 367.


       In the matter at bar, considering the record, the briefs, and the arguments, as well as the
plain language of N.J.S.A. 43:16A-6, allowing the employer some reasonable discretion, I
CONCLUDE that the respondent Board has established by a preponderance of the relevant
credible evidence that the Township’s action in not assigning Lt. Ward to alternative desk duty
(notwithstanding whether such duty was available or not) was within its reasonable discretion. I
further CONCLUDE, therefore, that the Township complied with the statutory requirements in
filing the involuntary retirement application, and by extension, the PFRS complied with the
statutory and regulatory requirements in granting the application.




                                                  57
OAL DKT. NO. TYP 2740-95


                                       ADA and LAD Claims


       Finally, the petitioner has submitted a 56-page post-hearing brief, the bulk of which is
based on arguments that the PFRS violated the Americans With Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and the Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq.
However, the ADA and the LAD claims are outside the scope of this proceeding.


       Back in November 1994, the petitioner apparently filed a complaint against the Township
in Superior Court, alleging, inter alia, the Township violated the ADA and the LAD. Ward v.
Township of Cherry Hill, et al., Dkt. No. L-10851-94, rev’d, A-6535-95T5 (App. Div.
January†24, 1997). The Township responded with a motion to dismiss, arguing, inter alia, that
Lt. Ward should have asserted his claims in the administrative proceeding sub judice. On April
7, 1995, the judge issued an oral decision granting summary judgment to the Township, ruling,
inter alia, that Lt. Ward should have asserted the LAD and ADA claims in this proceeding, and
his failure to do so operated as a bar to asserting the claims in Superior Court. The petitioner
appealed the judgment.


       During pendency of the appeal, the petitioner filed a motion to amend the pleadings in
this proceeding, seeking, inter alia, to add claims that the Township of Cherry Hill violated the
LAD, the ADA, the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and Lt. Ward’s
procedural due process rights and equal protection rights under the United States Constitution
and the Constitution of the State of New Jersey. The Honorable M. Kathleen Duncan issued a
letter order, dated June 29, 1995, ruling these claims were “not within the subject matter
jurisdiction of the administrative agency which has transmitted this matter to the Office of
Administrative Law for determination as a contested case.” Judge Duncan’s order read in
pertinent part:


                  The Legislature has granted the power to certain administrative
                  agencies to determine whether an employee has been the victim of
                  unlawful discrimination, e.g., whether an employer had
                  impermissibly discriminated against an employee because of an
                  employee’s handicapping condition by failing to provide
                  reasonable accommodation. See, for example, N.J.S.A. 10:5-4.1
                  and 10:5-13, giving jurisdiction over this issue to the Director of


                                                  58
OAL DKT. NO. TYP 2740-95


               the Division on Civil Rights (although note that a complainant may
               initiate suit in Superior Court under the LAD without first filing a
               complaint with the Division or any municipal office). If appellant
               in this matter had chosen to file an administrative complaint
               alleging discrimination with the Division on Civil Rights, after
               compliance with all of the procedural prerequisites . . . the matter
               could have been transmitted to the Office of Administrative Law
               for a hearing, and if that had been done, the matter could have been
               consolidated with the within matter before the same administrative
               judge. See N.J.A.C. 1:1-17.1 to 1:1-17.8. Such a procedure,
               however, would not give the Board of Trustees of the Police and
               Firemen’s Retirement System jurisdiction over the issue of
               discrimination. The initial decision on those issues would still
               have to be filed with the Director of the Division on Civil Rights
               who has final decision-making authority in those areas. . . In the
               within matter the statutory grant of authority to the Board of
               Trustees of the Police and Firemen’s Retirement System is
               confined to the parameters of N.J.S.A. 43:16A-1 to 68. . . .

               [T]he statutory language [of N.J.S.A. 43:16A-6,] “any other
               available duty in the department which his employer is willing to
               assign to him” [does not] raise necessary and incidental
               constitutional issues. That segment of the statute is generally
               satisfied in disability retirement cases by a certification from the
               employer that there are no other available duties in the department
               to which an appellant could be assigned. Because it is usually the
               member who seeks to retire on a disability allowance, the presence
               of the quoted language in the statute was undoubtedly for the
               purpose of preventing police officers and firefighters from retiring
               when they were perfectly capable of performing certain duties
               which were available and which the employer wished to have the
               officer or firefighter perform. Whether the member is entitled,
               under the LAD or federal law, to be assigned “any other available
               duty in the department” which his employer is not willing to assign
               to him, is not an issue which the Board of Trustees of the Police
               and Firemen’s Retirement System either must or may decide. . . .


       Apparently, the judge who dismissed the complaint in Superior Court and Judge Duncan
held conflicting views as to whether the ADA and the LAD claims were within the competent
jurisdiction of this proceeding.    However, the Appellate Division resolved the conflict by
reversing the Superior Court dismissal, ruling in pertinent part:


               We agree with plaintiff [Lt. Ward] that the Law Division judge
               wrongly deferred to PFRS. The only issue to be decided in the


                                                 59
OAL DKT. NO. TYP 2740-95


                  PFRS proceeding is the factual question of whether plaintiff
                  meets the statutory criterion for ordinary disability retirement.
                  While the answer to that question may be necessary to a decision
                  on some of the Law Division claims, and hence may be binding in
                  that action on collateral estoppel grounds if upheld, see infra,
                  PFRS’s resolution of that question does not require it also to
                  resolve the causes of action in the Law Division complaint, which
                  causes of action lay outside its narrow jurisdiction.

                  An administrative agency, as a creature of the Legislature, has only
                  such power as has been expressly granted by its enabling statute,
                  together with any implied powers necessary to accomplish the
                  statute’s purpose. (citations omitted). When an agency is
                  empowered to act as an adjudicatory body, its jurisdiction likewise
                  is limited to issues within its statutory responsibility, either
                  expressly or by necessary implication. (citations omitted). Absent
                  such jurisdiction, the matter must be adjudicated in Superior Court.
                  (citation omitted). Thus, courts will not permit administrative
                  intrusion into causes of action traditionally or statutorily lying
                  within the courts’ jurisdiction. (citations omitted).

                  Nothing in the statutes or regulations pertaining to PFRS gives
                  PFRS the power to decide any of the thirteen causes of action
                  stated in plaintiff’s complaint in L-10851-94 [including the
                  ADA and the LAD claims]; all of them concern federal and
                  state statutes unrelated to pension eligibility, as well as state
                  constitutional claims. Nor can such power reasonably be
                  implied; PFRS can decide disability and pension-eligibility
                  issues without having to decide the discrete causes of action
                  alleged in the complaint. In this case, the claims in the complaint
                  carry their own analytical frameworks. For example, whether
                  plaintiff was disabled for PFRS purposes does not also serve to
                  dispose of claims under the LAD or the federal Rehabilitation Act,
                  and does not resolve claims for monetary damages under the state
                  constitution.

                  [Ward, supra, at 14-16 (emphasis added).]


         The jurisdiction of the Division of Pensions is very narrow, as compared with, for
example, the Merit System Board, which has concurrent jurisdiction with the Division on Civil
Rights on discrimination matters.47 However, in this forum, I am constrained to address only the


47
  It is my view that the Division of Pensions and the Division on Civil Rights should consider promulgating a rule so
that matters such as these will not have to proceed in separate forums.



                                                         60
OAL DKT. NO. TYP 2740-95


issue of whether Lt. Ward met the statutory criteria for ordinary disability retirement.
Accordingly, the opinion has not addressed the petitioner’s claims involving the ADA or the
LAD.


       Since I have concluded that Lt. Ward met the statutory criteria for ordinary disability
retirement, pursuant to N.J.S.A. 43:16A-6, ‘Lt. Ward was mentally incapacitated from performing
duties in the general area of his ordinary employment, i.e., police work; Getty v. Prison Officers’
Pension Fund, 85 N.J. Super. 383, 390 (App. Div. 1964); and the Township’s action in not
assigning Lt. Ward to alternative desk duty was within its reasonable discretion. Crain v. State
Dept. of the Treasury, Div. of Pensions, supra, 245 N.J. Super. 229, 238 (App. Div. 1991), it is
ORDERED that the determination of the respondent Board of Trustees of the Police and
Firemen’s Retirement System which mandatorily retired the petitioner, Francis Ward, from his
position as a police officer with the Township of Cherry Hill, on or about July 1, 1994, based
upon petitioner’s purported lack of mental capacity to perform his duties be and is hereby
SUSTAINED.




                                                61
OAL DKT. NO. TYP 2740-95


       I hereby FILE my initial decision with the BOARD OF TRUSTEES OF THE
POLICE AND FIREMEN’S RETIREMENT SYSTEM for consideration.


       This recommended decision may be adopted, modified or rejected by the BOARD OF
TRUSTEES OF THE POLICE AND FIREMEN’S RETIREMENT SYSTEM who by law is
authorized to make a final decision in this matter. If the Board of Trustees of the Police and
Firemen’s Retirement System does not adopt, modify or reject this decision within forty-five (45)
days and unless such time limit is otherwise extended, this recommended decision shall become
a final decision in accordance with N.J.S.A. 52:14B-10.


       Within thirteen (13) days from the date on which this recommended decision was mailed
to the parties, any party may file written exceptions with the DIRECTOR, DIVISION OF
PENSIONS, One State Street Square, 50 West State Street, P.O. Box 295, Trenton, New
Jersey 08625-0295, marked "Attention: Exceptions." A copy of any exceptions must be sent to
the judge and to the other parties.




DATE                                                STEVEN C. REBACK, ALJ


                                                    Receipt Acknowledged:



DATE                                                BOARD OF TRUSTEES OF THE POLICE
                                                    AND FIREMEN’S RETIREMENT
                                                    SYSTEM

                                                    Mailed to Parties:



DATE                                                OFFICE OF ADMINISTRATIVE LAW




                                               62
OAL DKT. NO. TYP 2740-95


                               WITNESSES


For petitioner:


       Philip Slonim
       Francis Ward


For respondent:


       Dr. Arnold Goldman
       Chief William Moffett




                                  63
OAL DKT. NO. TYP 2740-95


                                          EXHIBITS


Jointly submitted:
       J-1    Stipulation of Facts
       J-2    Application Packet
       J-3    Letter, dated December 20, 1994
       J-4    Transmittal letter


For petitioner:
       P-3    Dr. Guller report, December 21, 1993
       P-4    Dr. Guller report, January 14, 1994
       P-5    Dr. Guller report, February 17 1994
       P-6    Dr. Tannenbaum report, April 24, 1993
       P-8    Dr. Slonim report, February 5, 1994
       P-21   Duties and responsibilities of the watch commander for the patrol unit
       P-24   Revised General Ordinances
       P-25   SOA contract
       P-26   Table of Organization
       P-27   March 31, 1993 psychiatric evaluation
       P-28   September 24, 1993 letter
       P-30   Letter, dated May 3, 1990


For respondent:
       R-1    Dr. Arnold Goldman’s C.V.
       R-2    Dr. Arnold Goldman’s Report
       R-3    Job Specifications
       R-4    Letter from Chief Moffett
       R-5    Insurance statement
       R-6    July 19, 1993 letter




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