New Jersey Public Safety Employee Lawyer & Attorney : Arpaia & Crivelli Law Firm : Police, Firefighters, Workers Compensation, Discipline Representation : New Jersey

Following up on our previous entry, this article will help our readers understand the criteria that must be met in order for a public employee to qualify for an ordinary or accidental disability pension within one of the following State pension systems, the Public Employees Retirement System, the Teachers Pension and Annuity Fund, the State Police Retirement System, and the Judicial Retirement System. While these pension plans are similar in defined benefits and criteria for eligibility, each has their own specific nuances that are particular to the membership they serve. 

Accidental v. Ordinary Disability Benefits

Public Employees Retirement System and Teachers Pension and Annuity Fund

In accordance with the Public Employees Retirement System (“PERS”) and Teachers Pension and Annuity Fund (“TPAF”) handbooks, in order to qualify for an ordinary disability retirement, an employee must:

·         Have an active pension account;

·         Have 10 or more years of New Jersey service credit;

·         Be considered totally and permanently disabled; and

·         Submit medical reports certifying the disability.

In order to qualify for an accidental disability retirement, a member must:

·         Be an active member of PERS or TPAF on the date of the “traumatic event”;

·         Be considered totally and permanently disabled as a result of a “traumatic event” that happened during and as a direct result of carrying out the member’s regular or assigned job duties;

·         File an application for disability retirement within five (5) years of the date of the “traumatic event”; and

·         Be examined by physicians selected by the retirement system.

If an employee claiming membership to either one of these retirement funds qualified for accidental disability, his/her annual retirement allowance will be 72.7% of their salary at the time of the “traumatic event.”

Should the public employee be 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. However, the retirement benefit is not reduced by any Social Security or private insurance benefits that may be payable.

The New Jersey Division of Pensions and Benefits reports accidental disability retirement benefits as exempt from federal income tax. The benefits are also

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Last week we spoke about medical benefits in the New Jersey Workers’ Compensation System. In this entry we will give a brief overview regarding total permanent disability benefits, and partial total disability benefits.

The third type of benefit that an injured worker is entitled to receive under the New Jersey Workers’ Compensation Act is commonly referred to as total permanent disability benefits and/or partial total disability benefits. Total permanent disability benefits are reserved for the injured worker that has been declared permanently disabled and is unable to return to work. Partial total disability benefits are benefits that are paid for injuries that have not rendered the employee totally disabled.

Permanent and partial total disability benefits are often a one-time lump sum payment, or bi-weekly payments that an injured employee will receive at the end of his or her workers’ compensation case. The amount of money that the injured employee will receive is based upon a statutory schedule established by The New Jersey State Legislature and is particular to the severity of the injury, and the injury to the particular body part.

The benefits associated with permanent and partial total disability are based on a weekly compensation system. The seriousness of the disability is taken into consideration in awarding permanent and partial total disability benefits. The more serious the injury, the greater the award an injured worker can expect to receive. The benefits paid as a result of receiving permanent and partial total disability benefits are not subject to taxation by either the State or Federal Government. Furthermore, attorney’s fees associated for representation in a New Jersey workers’ compensation case are deducted from an award of permanent and partial total disability benefits. Additionally, certain expenses that an attorney expends in representing an injured worker are also deducted from the award of permanent and partial total disability benefits. 

It is important to remember that if a public safety officer is declared totally disabled and is going to collect an ordinary disability pension, there will be a monetary offset for the pension award in regard to the money received for total and/or partial disability benefits under the New Jersey Workers’ Compensation System. Furthermore, if the public safety officer is awarded accidental disability benefits, the workers’ compensation permanent and/or partial disability award will be negated in its entirety.

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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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