Denial of Application for Accidental Disability Retirement Benefits Upheld

Posted on September 27, 2010 by Donald Barbati

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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The Intricacies of Collecting Retirement Benefits While Continuing To Work In Law Enforcement

Posted on April 7, 2009 by Frank Crivelli

Most recently, the New Jersey Supreme Court heard argument and deceided the case of Hemsey v. Police and Firemen's Retirement System, A-15 September 2008 Term, on Certification from the Appellate Division, 393 NJ Super 254 (App. Div. 2007).

Hemsey was hired as a police officer by the City of Trenton in 1973.  In 1998, he retired and began receiving retirement benefits from PFRS.  Most of his employment with the city was spent as a police dispatcher.  In the same year that he retired, Hemsey entered into a consulting contract with the City of Trenton in which he worked directly under the Department's commanding officer and evaluated and worked with police and fire communication center personnel.  In 1999, Hemsey was appointed to the position of Director of Communications.  This was a newly created civilian position of employment.

Thereafter, PFRS requested information from the City regarding Hemsey'e employment and called Hemsey before the board to answer questions regarding the same.  In October 2002, PFRS informed Hemsey that he was required to re-enroll in the reitement system due to the fact that the functions he was performing as a retiree were essentially the same duties that he was performing prior to retirement.  As a result of the ruling, Hemsey's retirement benefits were cancelled  retroactively to January 1, 1999.  Hemsey appealed and the case was sent to the Office of Administrative Law as a contested case. 

The OAL concluded that the retirement benefits were properly cancelled, with  the Appellate Division affirming the decision.  However, the Supreme Court for the State of New Jersey reversed the Appellate Division and held that the retirement benefits were improperly cancelled because there was insufficient evidence to conclude that the duties of the two positions were the same and the position of civilian director of communications started six (6) months after Hemsey retired from employment with the police department. 

New Jersey law dictates that an individual who retires and then accepts employment in a PFRS covered position will lose retirement benefits and be required to re-enroll in PFRS, N.J.S.A. 43:16A-3.1.  Hemsey successfully argued that his new position of employment did not meet the statutory requirements that mandated re-enrollment in PFRS.  After a review of all of the credible evidence including testimony and the consulting contract itself, the Supreme Court agreed with Hemsey.

To simplify this case for retirees collecting a PFRS pension and still performing duties in a law enforcement capacity, you must be very careful that your new duties are not substantially the same or similar to the duties for which you are collecting the pension.  Furthermore, the duties associated with the new position of employment must not meet the statutory definition of a PFRS covered position.  Each case is different and will be evaluated on a case by case basis with a thorough evaluation of the facts.  Its always advisable to research and evaluate the facts before you accept re-employment.  It is much easier to draft an employment agreement that falls outside the statutory requirements of PFRS than to have your pension benefits cancelled, whereby you are left with no choice but to appeal the issue before the Office of Administrative Law. 

 

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