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Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6076-04T16076-04T1 IN THE MATTER OF MARINO ORTEGA, DEPARTMENT OF CORRECTIONS. _______________________________________________________________

Submitted September 20, 2006 - Decided October 3, 2006 Before Judges Parker and Yannotti. On appeal from a Final Administrative Action of the Merit System Board, DOP Docket No. 2005-1014. Joseph A. Carmen, attorney for appellant, Marino Ortega. Anne Milgram, Acting Attorney General, attorney for respondent Merit System Board (Michael J. Haas, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief). PER CURIAM Petitioner Marino Ortega appeals from a decision by the Merit Systems Board (Board) denying his application for sick leave injury (SLI) benefits. We affirm. Petitioner is a senior corrections officer with the Department of Corrections (DOC). His claim arose out of the murder of an inmate on July 18, 2004. Petitioner was among a group of officers who discovered the murdered inmate. A
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social worker to whom petitioner was referred by DOC indicated that he exhibited symptoms of post-traumatic stress disorder (PTSD). He was referred to Dr. Lawrence Eisenstein, a state psychiatrist, for further evaluation. Dr. Eisenstein diagnosed petitioner with PTSD and authorized him to be out of work. Apparently, petitioner never returned to work after July 24, 2004. Petitioner's request for SLI benefits based upon the PTSD diagnosis was denied by DOC. On appeal to the Board, petitioner argued that Dr. Eisenstein's report causally related the PTSD to petitioner's work on July 18, 2004. The Board, however, found no evidence that petitioner had actually witnessed the beating that caused the inmate's death and that responding to the emergency was within the scope of the duties for which he had been trained. Accordingly, the Board found that petitioner did not satisfy his burden of proof and denied the application for SLI benefits. In this appeal, petitioner argues that the Board's decision was arbitrary, capricious and unreasonable. Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence. . . . " In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. Under N.J.A.C. 4A:6-1.6(c), SLI benefits may be awarded for an injury or illness resulting in disability that is work-related. Under the regulations, however, a "[p]sychological or psychiatric illness is not compensable except when [the] illness can be traced to a specific work-related accident or occurrence [that] traumatized the employee thereby causing the illness." N.J.A.C. 4A:6-1.6(c)(5). In addition, the claim must be supported by medical documentation. Ibid. The Board found that petitioner failed to establish an entitlement to SLI benefits from the incident. The Board noted that petitioner was not present when the inmate was slain. When he arrived at the inmate's cell, petitioner was immediately ordered to leave. He left to perform other duties. When he returned later, he was again ordered to leave the scene. The Board found that the incident could not be considered sufficiently traumatizing to justify the

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award of SLI benefits. In reaching this determination, the Board rejected the opinion of Eisenstein, who stated in his "note" dated October 12, 2004, that petitioner was suffering from PTSD, attributable to the incident of July 18, 2004. The Board was not required to accept Eisenstein's opinion and reasonably determined that the incident was not sufficiently traumatic to warrant the award of SLI benefits. The Board's findings are supported by substantial credible evidence in the record. Affirmed.

(continued) (continued) 4 A-6076-04T1 October 3, 2006 0x01 graphic

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