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 beIdentifiable 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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Photo of Frank M. Crivelli Frank M. Crivelli

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state…

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state, county and local law enforcement officers, firefighters and EMS workers.

Mr. Crivelli specializes his individual practice in collective negotiations.  Over the past twenty (20) years, Mr. Crivelli has negotiated well over one hundred (100) collective bargaining agreements for various state, county, municipal and private organizations and has resolved over thirty-five (35) labor agreements that have reached impasse through compulsory interest arbitration.  Mr. Crivelli routinely litigates matters in front of the New Jersey State Public Employment Relations Commission, the New Jersey Office of Administrative Law, third party neutrals for mediation, grievance and interest arbitration, the Superior Court of New Jersey and the United States District Court for the District of New Jersey.

Mr. Crivelli founded and created the New Jersey Public Safety Officers Law Blog (www.njpublicsafetyofficers.com) approximately fifteen (15) years ago where he and members of his firm routinely publish blog posts regarding legal issues related to the employment of New Jersey Public Safety Officers.  The blog now contains over six hundred (600) articles and is reviewed and relied upon by thousands of public employees.  Mr. Crivelli has also published books and manuals pertaining to New Jersey Public Employee Disability Pension Appeals and the New Jersey Worker’s Compensation System. Currently, he is drafting a publication on how to Prepare and Negotiate a Collective Bargaining Agreement.  He lectures annually at the New Jersey State PBA Collective Bargaining Seminar, the National Association of Police Organization’s Legal Seminar, the New Jersey Public Employment Relations Commission Seminar on Public Employment Labor Law, the United States Marine Corps’ Commander’s Media Training Symposium and to Union Executive Boards and General Membership bodies on various labor related topics.

Prior to entering private practice, Mr. Crivelli joined the United States Marine Corps where he served as a Judge Advocate with the Legal Services Support Section of the First Force Services Support Group in Camp Pendleton, California.  While serving in the Marine Corps, Mr. Crivelli defended and prosecuted hundreds of Special and General Court Martial cases and administrative separation matters.  In addition to his trial duties, Mr. Crivelli was also charged with the responsibility of training various Marine and Naval combat command elements on the interpretation and implementation of the rules of engagement for various military conflicts that were ongoing throughout the world at that time. After leaving active duty, Mr. Crivelli remained in the Marine Corps Reserves where he was promoted to the rank of Major before leaving the service.

For the past fifteen (15) years, Mr. Crivelli has been certified as a Civil Trial Attorney by the Supreme Court for the State of New Jersey, a certification which less than two percent (2%) of the attorneys in New Jersey have achieved.  He is a graduate of Washington College (B.A.), the City University of New York School of Law (J.D.), the United States Naval Justice School, and the Harvard Law School Program on Negotiation.