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 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 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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 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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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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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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