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

As reported by nj.com, a divided state employee benefits commission today backed a Republican proposal to rein in rising accidental disability claims but said lawmakers should remove a provision that unfairly punishes workers who are permanently injured on the job.

The GOP bill would reduce accidental disability pensions across all retirement systems to 40 percent of final salaries. Currently, police and firefighters on accidental disability, for example, receive two-thirds of their final salaries. The pension reduction would bring accidental disability benefits on par with those offered under the ordinary disability plan and take away a major financial incentive that is helping drive up applications, supporters argue.

But a majority of members on the Pension and Health Benefits Commission said merging the two benefits ignores an important distinction: accidental disability pensions are supposed to compensate workers permanently injured by traumatic events. Others argue there are still important distinctions between the two, such as accidental pensions are tax free and workers qualify for them from their first day on the job while it takes 10 years for workers to qualify for an ordinary pension.     

The proposed changes come on the heels of multiple media reports on how accidental disability pension applications and awards have spiked since two separate Supreme Court decisions in 2007 and 2008 broadened eligibility requirements. The rulings forced the state’s pension boards to consider slip and fall injuries as eligible, along with mental illness.

Overall, applications for accidental disability pensions were up 34 percent and awards were up 87 percent over the five years, according to the Treasury Department. The rate of approval also rose to 53 percent in 2011 from 38 percent in 2007. Payouts for accidental disability pensions also increased during this time by 33 percent from $98.8 million to $131.5 million compared to a 20 percent increase in ordinary pension payouts from $270.6 million to $323.1 million.

The bill, sponsored by Assemblymen Declan O’Scanlon and Gary Chiusano, would stiffen requirements by requiring applicants to also qualify for the more stringent federal workman’s compensation benefits. It would also penalize accidental disability pension beneficiaries if they get another job by reducing their pensions.

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On September 27, 2010, the Appellate Division decided Briane K. Washington v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-1857-08T1. In the case, Briane Washington (“Washington”), a former Essex County Correction Officer, applied for accidental disability retirement benefits as a result of an incident on February 21, 2005, when an inmate, who may have had HIV and/or AIDS, spit in his face on two separate occasions.

The Board of Trustees of the Police and Firemen’s Retirement System (“Board”) found that Washington was suffering post-traumatic stress disorder (“PTSD”) as a result of the incident and awarded him ordinary disability retirement benefits because he was permanently and totally disabled. However, the Board denied Washington’s application for accidental disability retirement benefits, concluding that he did not satisfy N.J.S.A. 43:16A-7, which requires an employee to be “permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties.”

Washington appealed the Board’s determination and was granted an administrative hearing. Based on the evidence presented, an Administrative Law Judge (“ALJ”) determined he was ineligible to receive an accidental disability pension. Specifically, the ALJ found there was no credible evidence that the inmate “was actually transmitting a life-threatening disease” and that Washington failed to satisfy the criteria set forth in Patterson for a disabling mental injury.

On appeal, Washington argued that he was entitled to an accidental disability pension because his disability resulted from “a traumatic event” on February 21, 2005. The Appellate Division rejected Washington’s contentions and affirmed the Board’s denial. Specifically, the Court found the Board correctly applied the law and its decision was supported by substantial credible evidence in the record. As such, the Court concluded that the Board’s denial was neither arbitrary, capricious, nor unreasonable.

This case illustrates the importance of a hiring an experienced attorney to assist in the filing of an application for accidental disability retirement benefits. As alluded to by the Court, the law regarding the grant of accidental disability benefits has been drastically altered over the past five (5) years. Consequently, it has become imperative for an applicant to hire an attorney who is familiar with these changes so as to ensure the application is properly considered and/or evaluated. Without doing so, one might fall short and never receive the benefits they are ultimately entitled to.

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On July 30, 2010, the Appellate Division decided James Henderson v. Board of Trustees, Public Employees’ Retirement System, Docket No.: A-6176-08T2. In the case, James Henderson appealed the Board of Trustees of the Public Employees’ Retirement System’s (“Board”) denial of his application for accidental disability benefits. Frank M. Crivelli, Esq. and Donald C. Barbati, Esq. of the Pellettieri, Rabstein & Altman law firm, and the authors of this blog, successfully argued to reverse the denial, thereby obtaining accidental disability benefits for Henderson.

The case addressed whether Henderson was entitled to accidental disability retirement benefits based upon two (2) separate work-related incidents. Notably, it was undisputed that the first incident causing Henderson injury constituted a “traumatic event.” After initially becoming injured, Henderson was unable to work for some period of time, returned to light duty for a while, and then, ultimately, returned to full duty. The injury was then aggravated and accelerated by a second incident in which Henderson attempted to perform an ordinary task within the scope of his duties and responsibilities of employment.

The Board initially denied Henderson’s application for accidental disability retirement benefits. To support the denial, the Board determined that the second accident did not constitute a “traumatic event” within the meaning of the applicable case law. The Board also found that the injury originally suffered by Henderson in the first incident constituted a “pre-existing disease or condition,” thereby precluding him from receiving said benefits. This appeal ensued.

On appeal, Henderson argued that: (1) the second incident constituted a “traumatic event” within the meaning of the applicable case law; and (2) the term “pre-existing disease or condition” was never intended to include injuries suffered in prior traumatic events for purposes of whether an individual qualifies for accidental benefits.

In its decision, the Appellate Division agreed with the Board’s initial determination that the second incident did not constitute a traumatic event within the meaning of the applicable law. Significantly, however, the Court agreed with our contention that the term “pre-existing disease or condition” does not include injuries suffered in prior traumatic events. Rather, the Court found that term has been uniformly applied to bodily diseases or conditions that were not caused by a traumatic event. The Court cited a litany of case law to support this contention and articulated that the Board’s suggestion that the injuries resulting from the original traumatic event and their sequelae should be treated as pre-existing diseases or conditions is utterly inconsistent with the applicable law.

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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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