New Jersey Public Safety Officers Law Blog : New Jersey Public Safety Employee Lawyer & Attorney : Pellettieri, Rabstein & Altman Law Firm : Workers Compensation, Discipline Representation for Police & Firefighters : New Jersey

On January 27, 2010, the Appellate Division decided Gregory Russo v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-3706-08T2. In the case, Gregory Russo appealed from the March 10, 2009 final determination of the Board of Trustees of the Police and Firemen’s Retirement System (“Board”) denying his application for accidental disability benefits.

On November 29, 2001, during his first year as an officer for the Montclair Police Department, Russo was dispatched to the scene of a residential fire with three other officers. They entered the burning building, determined that there were four residents inside and escorted two children and an adult to safety from the first floor. They could hear a fourth person calling for help from the second floor and tried to reach him, but could not safely proceed upstairs because of the fire’s rapid advance. As they were attempting to rescue the fourth occupant, local fire department personnel entered the building and ordered the police officers to leave. The man on the second floor died as a result of the fire.

After being evacuated from the residence, Russo witnessed the fire department removing the fourth occupant’s body through a window and was verbally berated by the man’s family for not doing enough to rescue him. The officers were taken to the local emergency room to be treated for smoke inhalation and were released the following morning. As a result of this traumatic event, Russo was diagnosed with post-traumatic stress disorder.

The initial decision of an Administrative Law Judge (“ALJ”) who considered the matter, issued on November 6, 2008, found that Russo met the standard for receipt of accidental disability benefits. The ALJ found that Russo was eligible because he considered the reasonable person test to be “fully satisfied under the known facts of this case.” In contrast, the Board, although it adopted the ALJ’s factual findings, rejected the ALJ’s legal conclusions and denied Russo’s application. This appeal ensued.

The Appellate Division determined that it was constrained to agree with the Board in light of the substantial deference afforded to an administrative decision. According to the Court, none of the four officers who responded to the fire suffered any injuries beyond the smoke inhalation for which Russo was treated. Moreover, the Court noted that although the sight of the lifeless body of the fourth occupant of the burning building being removed was no doubt traumatic, police officers are trained to deal with injured and dead citizens under a multitude of horrific circumstances, including homicides, automobile accidents and natural disasters. Russo’s trauma was further compounded by being verbally berated by the surviving family members. However, the Court found that circumstance, in and of itself, does not constitute a traumatic event. Therefore, the Court agreed with the Board’s conclusion to deny Russo’s application for accidental disability retirement.

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On January 21, 2010, the Appellate Division decided In the Matter of Rosemarie Tatusko, Docket No.: A-2888-08T3. The case involved an appeal from a final decision of the Board of Trustees of the Police and Firemen’s Retirement System which denied Rosemarie Tatusko’s (“Appellant”) application for an accidental disability pension.

Appellant was employed by the Department of Corrections as a senior correctional officer at the Burlington County Jail. Her application for an accidental disability pension was based on an incident that occurred on Ocotber 22, 2005, when she assisted in saving a female inmate who had attempted to commit suicide. Appellant heard a “hacking gagging noise,” and when she scanned the prison cells to determine the source of this noise, she found the inmate hanging from a sheet in her cell. Appellant called another correctional officer to help her and the two of them were able to cut down the sheet with scissors and get the inmate to the floor. Appellant though at the moment that the inmate had died, but later found out that she had survived the attempted suicide.

At the time of the incident, Appellant had been a corrections officer for eight years. During that time, she had witnessed three other attempted suicides, two of which involved inmates cutting their wrists and the third of which also involved a hanging. Appellant did not experience any psychological problems after any of those three prior incidents. However, Appellant suffered a total and permanent psychological disability as a result of the October 22, 2005 incident. When Appellant was asked at the hearing on her application before an Administrative Law Judge (“ALJ”) how the October 22, 2005 incident differed from those prior incidents, she responded: “I don’t know. I can’t explain.”

The ALJ concluded that Appellant’s observations of the inmate’s attempted suicide and efforts to save her constituted a traumatic psychological event and, therefore, granted Appellant’s application. The Board rejected this recommended conclusion and determined that Appellant’s application should be denied because Appellant’s observation of the inmate’s attempted suicide and her subsequent efforts to save the inmate were not objectively capable of causing a reasonable corrections officer with training and experience similar to appellant to suffer a disabling mental injury. This appeal ensued.

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On January 14, 2010, the Appellate Division decided In the Matter of Jerry Duckworth, Department of Youth Services, County of Passaic, Docket No.: A-6007-07T1. In the case, Jerry Duckworth appeals from a final decision of the New Jersey Department of Personnel, Merit System Board, dismissing his appeal of removal from employment. The Board adopted the findings and conclusions of an Administrative Law Judge (“ALJ”), determining that Duckworth had entered into an enforceable settlement agreement with his employer, the County of Passaic.

Duckworth was employed as a senior juvenile detention officer at the Passaic County Juvenile Detention Center. In 1990, he injured his back at work and required surgery to remove a herniated disc. The surgery left Duckworth suffering chronic low back pain. In 2002 and 2003, a physician engaged by Passaic County, examined Duckworth and diagnosed permanent back injury and a chronic foot drop. The physician reported to the County that, because of these medical conditions, Duckworth was not able to perform safely the duties of a juvenile detention officer and that he was at risk for re-injury.

To accommodate Duckworth’s disability, the County reassigned him to less rigorous duties in the laundry room of the detention center. About one and a half years later, Duckworth objected to this reassignment and sought a hearing before the Merit System Board. In 2006, the Board determined that the duties assigned to Duckworth were outside his job description and ordered the County to reassign him and also conduct a complete fitness for duty examination. The same physician examined Duckworth again in May 2006 and reiterated his prior conclusions. 

The County gave notice to Duckworth of disciplinary action to remove him from his position because of unfitness for duty. After conducting departmental hearings, the County terminated his employment on December 6, 2006. Duckworth requested a hearing and also applied for disability retirement. Some months later, he withdrew his retirement application.

Pursuing his appeal, Duckworth appeared with his attorney for a hearing before an ALJ on January 9, 2008. The attorneys conferred and reached an agreement, which they reported to the ALJ as a settlement. No transcript was made on that date, but the ALJ discussed the terms of the settlement with counsel in the presence of Duckworth. The settlement required that the County support reinstatement of Duckworth’s disability retirement application in exchange for his dismissing the pending appeal.

The attorney for the County drafted a written settlement agreement and sent it to Duckworth’s attorney. When he received no response for several months despite several inquiries, he filed a motion before the ALJ to enforce the settlement. In the meantime, Duckworth re-submitted his application for disability retirement. In March and April 2008, he heard from the Division of Pensions and Benefits that the County had not responded to its requests for information relevant to his application.

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On October 13, 2009, the Appellate Division decided Raymond Joseph Foster, III v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-5666-07T2. In the case, Raymond Joseph Foster, III, a member of the Police and Firemen’s Retirement System (“PFRS”), appealed from the final decision of the Board of Trustees (“Board”), upholding the May 5, 2008 initial decision of Administrative Law Judge (“ALJ”) Jeff Masin, finding that Foster “has failed to meet his burden to prove that the total and permanent disability from which he suffers is the direct result of the injuries received in the traumatic event [Foster suffered on March 5, 2002].”

Foster started working as a Bordentown Township police officer in February 1998. On March 5, 2002 at 9:51 p.m., Foster was injured in a motor vehicle accident, while working as a police officer. The police report indicated that it was a one-vehicle accident. Foster was responding to the ACME supermarket. As he entered the parking lot, he turned right, but missed the entrance and struck a light pole to the left of the entrance. At the time, Foster was thirty-seven years old.

More than four years later, in September 2006, Foster stopped working. According to Foster, he could no longer tolerate the pain, which had become more constant and excruciating. It was undisputed that Foster was totally and permanently disabled and unable to perform his work duties. Thereafter, Foster applied to the Board for accidental disability retirement benefits. The Board denied the application on the grounds that Foster’s disability was not a direct result of the automobile accident, thus he did not qualify for accidental disability benefits.

Foster challenged that decision. The matter was transferred to the Office of Administrative Law as a contested case. After hearings were conducted, ALJ Masin found that Foster’s application should be denied, concluding that Foster’s present disability was not the direct result of the accident. This appeal ensued.

On appeal, Foster contended that the decision of ALJ Masin and the Board was not supported by the evidence. The Appellate Division disagreed. Based on its review of the record, the Court found that the Board’s findings were supported by the appropriate proofs and, therefore, its decision was supported by sufficient credible evidence on the record as a whole. As such, the Board’s decision was affirmed.

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On July 23, 2009, the Appellate Division decided Barbara Cannella v. Board of Trustees, The Public Employees’ Retirement System, Docket No.: A-4389-07T2. In the case, Barbara Cannella appealed the decision of the Board of Trustees of the Public Employees’ Retirement System (“Board”) denying her application for accidental disability retirement benefits under N.J.S.A. 43:15A-43.

On December 26, 2002, Cannella, a State employee working for the Division of Youth and Family Services, arrived at the parking lot designated for State employees where she was assigned to park. The parking lot was located a block from the building where she worked. As she exited her vehicle, she slipped and fell on ice, sustaining injuries.

On April 19, 2006, the Board determined that due to the injuries incurred in the fall, Cannella was permanently and totally disabled from performing her regular and assigned duties, but did not qualify for accidental disability benefits within the meaning of N.J.S.A. 43:15A-43. In order to be entitled to accidental disability retirement benefits, the statute requires that the disabling injury be “as a direct result of a traumatic event occurring during and as a result of the performance of [her] regular or assigned duties.” The Board determined that she did not meet this criterion and denied her application for accidental disability retirement benefits.

Cannella appealed and the case was sent to an Administrative Law Judge (“ALJ”) for an administrative hearing. Following cross-motions for summary judgment, the ALJ found that because Cannella was a block away from her place of employment when she fell, she had not yet completed her commute and, as a result, the fall had not occurred “during and as a result of the performance of [her] regular or assigned duties.” As such, the ALJ granted the Board’s motion for summary judgment and dismissed the appeal. By letter dated May 27, 2008, the Board adopted the Initial Decision of the ALJ and denied Cannella’s application for accidental disability retirement benefits. This appeal ensued.

The Appellate Division affirmed the Board’s determination and dismissed Cannella’s appeal. The Court indicated that Cannella had not reached her employer’s building, but still had another block to go. Moreover, she was not at the premises where she worked when she fell. At the time of her fall, she had not begun any preliminary efforts in commencement of work, but rather still had to continue her commute on foot to her workplace. According to the Court, to award accidental disability retirement benefits under these circumstances would be to significantly extend the scope of coverage. The statutory language was designed to reassert the going and coming rule present in workers’ compensation law, providing that workers were not entitled to benefits for injuries sustained while traveling to and from work. Thus, the Court held the Board’s application of the accidental disability statute to the facts of the case was consistent with the legislative intent to enforce the going and coming rule.

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Recently, the primary authors of this blog, Frank M. Crivelli, Esq. and Donald Barbati, Esq., released a publication entitled “Taking the Necessary Steps to Win Your New Jersey Public Employee Disability Pension Appeal.” 

The publication thoroughly examines the different New Jersey Pension Systems, including the Public Employees’ Retirement System, Police and Firemen’s Retirement System, and the State Police Retirement System and the difference between accidental and ordinary disability benefits under the various pension systems. Moreover, the publication analyzes the applicable decisional and statutory law surrounding public employee disability pension appeals and articulates the necessary criteria to be satisfied and the steps one must take in order to obtain accidental and/or ordinary disability benefits.

This publication is a must have for all State of New Jersey, County and Municipal employees, especially New Jersey Public Safety Officers. Public employee disability pension law is a specialized and highly complex area of law. Should you ever find yourself in need of accidental or ordinary disability benefits, you would be hard pressed to find as useful a resource.

To obtain a free copy of the publication or, alternatively, to discuss its contents in more detail, please contact Frank Crivelli, Esq. or Donald Barbati, Esq. at (609) 890-1900 or via mail at: 2653 Nottingham Way, Hamilton, New Jersey 08619.  

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 Since the New Jersey Supreme Court’s decision in Richardson v. Board of Trustees, Police and Firemen’s Retirement System, 192 N.J. 189 (2007), we have witnessed more denials of accidental disability applications based on the premise that the member suffered from a pre-existing illness or injury which contributed to the overall disability that prevented the member from returning to employment. However, where the scenario gets particularly interesting is when the pre-existing injury or illness was the result of a work related traumatic event. One would think that such a denial does not make sense under the Richardson decision as a “traumatic event,” as redefined by the Supreme Court,  and the resulting injuries sustained therefrom should not qualify or be viewed as a pre-existing illness or injury. Such a scenario and situation has not been addressed by New Jersey courts and is ripe for review to further flush out this new and evolving area of the law. 

 While the last paragraph may sound like a tongue twister, we will try to explain it in plain english. New Jersey courts are currently grappling with scenarios revolving around multiple injuries caused by separate traumatic events which together cause a member to be permanently disabled from performing his or her job. However, the Police and Firemen’s Retirement System, Public Employees' Retirement System and Teachers' Pension and Annuity Fund do not believe that a person with multiple injuries that occurred as the result of multiple traumatic events should be entitled to receive accidental disability benefits. As a result, the various pension funds have been disqualifying applicants with multiple injuries caused by multiple traumatic events. 

          In Richardson, the New Jersey Supreme Court revisited the “traumatic event” standard under the accidental disability retirement provision of the Police and Firemen’s Retirement System, N.J.S.A. 43:16A-1. After conducting an exhausting analysis of conflicting court decisions which interpreted the traumatic event standard differently and the legislative history of the amendments to the accidental disability statutes, the Court opined that a “traumatic event” is essentially the same as what has been historically understood as an “accident” to be. An “accident” as defined under Richardson, is an unexpected, external happening that directly causes injury and is not the result of pre-existing disease alone or in combination with work. Based on establishing this baseline definition of “accident,” the Court held that in order to obtain accidental disability benefits, a member must prove amongst other things that he or she is totally and permanently disabled as a direct result of a traumatic event that is:

1.   Identifiable as to time and place;

2.   Undesigned and unexpected; and

3.   Caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work).

          The Richardson Court also provided examples of situations that satisfy the newly enunciated traumatic event standard. The first example depicted a police officer who suffers a heart attack while chasing a suspect. The Court instructed that the police officer in such a situation has not experienced a traumatic event. In that case, the work effort, alone or in combination with a pre-existing disease, was the cause of the disabling injury. However, the Court stated if that the same police officer became permanently and totally disabled during the chase solely because of a fall, the officer has suffered a traumatic event that would give rise to an award of accidental disability benefits. Thereafter, the court provided another example. A gym teacher who develops arthritis from the repetitive effects of his work over the years has not suffered a traumatic event as defined and articulated under Richardson. Such a disability is the result of degenerative disease and is not related to an event that is identifiable as to time and place. On the contrary, the same gym teacher who trips over a riser, is injured and becomes permanently and totally disabled as a result of the fall, has satisfied the accidental disability standard. 

          In sum, the Court held that a member who is injured while performing his or her ordinary duties does not disqualify him or her from receiving accidental disability benefits; some injuries sustained during the ordinary work effort will pass muster and others will not. However, the polestar of the inquiry is whether, during the regular performance of his or her job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member. 

In our next post, we will look further into Richardson and whether members with multiple injuries resulting from multiple traumatic events should qualify for accidental disability benefits.

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In the case of Christopher v. Board of Trustees of the Police and Firemen’s Retirement System, 33-2-0847, the appellant, a corrections officer, argued to the Superior Court of New Jersey, Appellate Division, that he should receive accidental disability benefits suffered from a combined psychological injury (Post Traumatic Stress Disorder) that resulted from work at the world trade center post 9-11, and an assault by an inmate. Furthermore, the appellant also argued that due to the fact that his case was originally decided under the “old” evaluative standard to assess accidental disability, or the Kane [1], standard, he should be entitled to a new hearing due to the change in law that occurred in the summer of 2007 when the Richardson[2] decision was handed down by the New Jersey Supreme Court. 

The New Jersey Superior Court, Appellate Division heard Christopher’s argument and opined that a change in the state of the law is not ordinarily considered an adequate reason for re-opening cases in which the final administrative decision was rendered and the original time to appeal the final administrative action has expired. The bottom line is that if a member of the Police and Firemen’s Retirement System had an application for accidental disability benefits denied under the old Kane line of reasoning, and a timely appeal was not filed following the Board of Trustees Final Administrative Action, you cannot now successfully file an appeal based solely on a change in the law.  

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On July 24, 2007, the New Jersey Supreme Court decided the case of Richardson v. Board of Trustees, Police & Firemen’s Retirement System, 192 NJ 189 (2007). The case addressed a new standard to be applied by New Jersey Courts and Administrative Tribunals in awarding accidental disability retirement benefits under the provisions of various New Jersey statutes. In its decision, the Court greatly expanded the class of accidents that will entitle an employee to receive “accidental disability retirement benefits” upon being injured during employment. As a result of this decision, theoretically, many more employees will be entitled to the more extensive benefits provided under the accidental disability retirement statutes in the event of an accident or mishap in the workplace.

Prior to this decision, the test for determining whether a certain accident would qualify an individual for accidental disability retirement benefits was extremely ambiguous. In fact, many courts and practicing attorneys had a very difficult time interpreting whether a certain type of accident would entitle an individual to qualify and receive accidental disability benefits. Essentially, the determination became centered upon whether the disability was the result of a “traumatic event.” Many interpretations of this term were produced over the years, but, ultimately, courts determined that a “traumatic event” required that the cause of an injury be “a great rush of force or uncontrollable power.” As expected, this standard was very vague, restrictive, and interpreted in different ways by various judges. Consequently, courts were very inconsistent in applying this standard, thereby making it very difficult to predict which accidents would entitle an individual to accidental disability benefits. Therefore, only a limited class of employees who suffered a particular type of injury emerged as being qualified to receive these benefits.    

In response to the prior standard’s confusion and restrictiveness, the Richardson Court has now announced a new standard in awarding accidental disability benefits. Now, in order to obtain accidental disability benefits, an employee must prove that:

(1) He or she is permanently and totally disabled;

(2) That the disability is the result of a traumatic event that is;

     (a) Identifiable as to time and place;

     (b) undesigned and unexpected, and

     (c) caused by a circumstance external to the member;

(3) The traumatic event must have occurred during and as a result of the member’s regular or assigned duties;

(4) The disability was not the result of the member’s willful negligence; and

(5) The member is mentally and physically incapacitated from performing his or her usual or any other duty. 

Most importantly, this standard has eliminated the “great rush of force or uncontrollable power” requirement. Now, a traumatic injury is essentially the same as what has been understood to be an accident, an external happening that directly causes injury and is not the result of pre-existing disease alone or in combination with the work effort. Thus, any member who is injured as a direct result of an identifiable, unanticipated mishap can satisfy the traumatic event standard.

For instance, in the Richardson case, the plaintiff, a New Jersey State Correction Officer, permanently injured his wrist while trying to handcuff an unruly inmate. Under the new test, Richardson was found to have suffered a traumatic event and is now entitled to accidental disability retirement benefits. As previously stated in my last post, accidental disability benefits provide two thirds (66%) of an individual’s annual compensation benefits. On the other hand ordinary disability benefits only provide approximately forty percent (40%) of the member’s compensation. Additionally, such injuries as slip and falls can potentially be covered under the new standard, where as in the past, the injured employee would only be entitled to ordinary disability benefits. 

In summary, under the new accidental disability standard, the fact that a member is injured while performing the course of their ordinary duties will not disqualify them from receiving an accidental disability pension. Case law is still developing as to the Court’s interpretation of the Richardson decision, and how the Board of Trustees for the Police and Firemen’s Retirement System are applying the new standard to the applications they are now receiving. Based on my experience, the Board of Trustees has been inconsistent in its review of accidental disability retirement applications since Richardson. It cannot be controverted that individuals have been awarded accidental disability benefits that would have otherwise been denied under the old standard. However it also appears as if an inordinate number of applications are now being denied and thus contested under the prong that the injury must be “Identifiable as to time and place”, and that “the disability was not the result of the member’s willful negligence”. It will be interesting to follow the direction of the administrative and appellate courts in interpreting the new Richardson test and the award of accidental disability benefits.

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During the course of a public safety officer’s career, many uniformed employees become injured and disabled on the job. If a public safety officer is unable to continue his or her employment as a result of the injury, they are often left with no choice but to medically retire. The Police and Firemen’s Retirement System (PFRS), is the New Jersey public employee retirement system that services the vast majority of public safety officers in the state of New Jersey. PFRS offers two disability retirement pensions that have diverse entitlements based primarily on how the accident occurred that lead to the disabling injury. It is the Board of Trustees for PFRS that makes the determination of what type of disability pension an individual will qualify to receive. In this post, I will talk briefly about the two types of disability pensions and the benefits associated with each. In my next post, I will discuss the current state of the law as it pertains to accidental versus ordinary disability, and how the applicable pension standards are being interpreted by the Board of Trustees for PFRS and the New Jersey Courts.    

ORDINARY DISABILITY

To qualify for Ordinary Disability retirement benefits a public safety officer must:

• be a member in service at the time the application is filed with the Division of Pensions and Benefits;
• have 4 or more years of New Jersey service credit in the pension system (the purchase of out-of-state, military, and U.S. government civilian service cannot be used to attain the 4 years); and
• be considered totally and permanently disabled (the member must prove that he or she is physically or mentally incapacitated from performing the normal or assigned job duties with no possibility for significant improvement).

Ordinary Disability Retirement benefits are not reduced by any Social Security or private insurance benefits that may be payable.   However, any Workers' Compensation award receive from the accident that may have caused the disability may be reduced, or receive a “setoff”.

Ordinary Disability retirement benefits are subject to federal tax to the same extent as other pensions.

ACCIDENTAL DISABILITY

To qualify for Accidental Disability retirement benefit,s a public safety officer must:

• be a member in service at the time the application is filed with the Division of Pensions and Benefits;
• be an active member of PFRS on the date the “traumatic event” occurred that caused the injury;
• be considered totally and permanently disabled as a direct result of a” traumatic event” that happened during and as a direct result of carrying out his or her regular or assigned job duties;
• file an application within five years of the date of the traumatic event; and
• be examined by physicians selected by PFRS. Said physicians must render an opinion that the member is totally and permanently disabled as a result of the “traumatic event”.

The definition of a "Traumatic Event" has been the subject of great debate and disagreement by the New Jersey courts. This definition will be discussed in more detail in my next post.

If a public safety officer qualifies for an Accidental Disability Retirement pension, the annual benefit will be 2/3 of the annual compensation on which pension contributions were being made at the time of retirement or the date of the traumatic event, whichever provides the higher benefit.

If the Public Safety Officer is receiving periodic Workers' Compensation benefits, the Accidental Disability retirement benefits will be reduced dollar for dollar by the periodic benefits paid after the retirement date. The retirement benefit is not reduced by any Social Security or private insurance benefits that may be payable.

The Division of Pensions and Benefits reports Accidental Disability retirement benefits as exempt from federal income tax; and benefits are not subject to New Jersey State income tax until the age 65.

With the high occurrence of injury on the job, public safety officers and union leadership must make themselves familiar with the different retirement benefits in order to give proper guidance to their membership. It is often disability retirement benefits that injured public safety officers rely on to support their family members after they can no longer protect and serve.

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            Welcome to the New Jersey Public Safety Officers Law Blog. As stated in the title, this blog is dedicated to providing Corrections Officers, Police Officers, and Fire Fighters with current and relevant information regarding the laws, rules, and regulations that are particular to uniformed public safety officers throughout the state of New Jersey. Whether it be the latest interpretation of Civil Service promotional rules and regulations promulgated by the New Jersey Department of Personnel, public employee discipline decisions handed down by the Office of Administrative Law and adopted by the Merit System Board, Agency decisions issued by the New Jersey Public Employees Relations Commission, or Interest Arbitration Awards concerning collective bargaining agreements, you will find timely, interesting, and on point legal commentary here. 

            Based on the unwavering and tireless service that uniformed public safety officers provide to citizens of our state, it is only fitting that a legal forum be provided to keep officers, supervisors, and union leaders updated regarding the laws rules and regulations that effect their employment. The law firm of Arpaia & Crivelli, L.L.C. takes great pride and is sincerely grateful that we have the opportunity to routinely represent public safety officers in administrative tribunals, courts of compensation, and State and Federal courts throughout New Jersey. Providing this blog is our way of saying thank you for your service, and we will continue to protect the rights of those who protect and serve.

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