Unfortunately, during the course of a law enforcement officer’s career, "on and off the many officers become job" and "off the job" injuries and illnesses occurred and, which ultimately lead to, disabled both on and off the job one’s inability to continue to work as a law enforcement officer. If such an officer is unable to continue his or her employment as a result of the injuries, When one faces such an unfortunate scenario, they are often left with no other alternative but to medically retire. To this end, the New Jersey pension systems covering law enforcement officers have disability retirement plans in place which that provide accidental disability retirement benefits if certain criteria is met.

If a law enforcement officer qualifies for an accidental disability retirement benefits under the Police and Firemen’s Retirement System ("PFRS"), the annual benefit will be two-thirds (2/3) of the annual compensation on which pension contributions were being made at the time of retirement or the date of the event leading to the disability, whichever is provides the greater benefit. Of critical importance, accidental disability retirement benefits are also exempt from federal income tax and not subject to New Jersey State income tax until the age of 65. Thus, accidental disability retirement benefits provide much needed economic stability for injured law enforcement officers for the duration of their lives, and provide far greater benefits than "ordinary" disability benefits.

However, notwithstanding the foregoing, and despite what some people may believe, however, accidental disability benefits are awarded only when an officer meets particular legal and factual criteria. Amongst other things, this criteria determination is often based on the factual scenario that revolves around the officer’s disabling injury. Thus consequently, describing how an accident occurred to either PFRS or an Administrative Law Judge is vitally important and often determinative as to whether or not one is awarded accidental disability pension benefits.

The criteria for obtaining accidental disability retirement benefits are well-settled. As set forth by the Supreme Court in Richardson v. Bd. of Trs., Police and Firemen’s Retirement System, in order obtain accidental disability benefits, an law enforcement officer must prove:

1. He/ or she is permanently and totally disabled;

2. The disability is the direct 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 officer’s regular or assigned duties;

4. The disability was not the result of the member’s willful negligence; and

5. The officer is physically incapacitated from performing his or her usual or any other duty.

Recently, much litigation has revolved around the meaning of the terms "undesigned and unexpected." In a recent decision in the case Brooks v. Bd. of Trs., Public Employees Retirement System, 425 N.J. Super. 277 (App. Div. 2012), the Appellate Division examined the Richardson requirement that a work-connected event must be "undesigned and unexpected" to constitute a "traumatic event." In Brooks, the Court held that an accident can be "undesigned and unexpected" under the Richardson test even though it may be concluded in retrospect that the employee/officer could have anticipated the risk of such an accident and taken steps to avoid it. In other words, an employee and/or officer’s "simple negligence," as opposed to "willful negligence," was not a disqualifying factor for an accidental disability pension.

Therefore, if a law enforcement officer undertakes a particular work related activity that is associated with his or her regular duties of employment and such an activity results in a disabling injury, he or she can be awarded accidental disability benefits even if the risk could have been anticipated by the officer. On the other hand, injuries that occur purely during the course of "regular work effort,", without any external factor causing injury, will not be "qualifying events" under Richardson for which Accidental Disability Benefits will be awarded.

So what are we really talking about here? The best way we can put it into perspective is to use an example: A police officer is chasing a suspect. While in full stride, he steps on some loose gravel, hears a "pop" and tears a ligaments in his knee. He can not return to work as a result. If the officer injures his knee while merely chasing a suspect, chances are, he may not be awarded accidental disability benefits due to the fact that because chasing a suspect is a duty expected of an officer and is part of his "regular work effort.". However, the fact that he slipped on loose gravel should be a sufficient enough "external factor" that caused the injury and takes the scenario out of the realm of "regular work effort." . What we are trying to emphasize here is that the facts matter , and often the success or failure of an application or an appeal for benefits will often turn on how the facts are portrayed by the applicant or able, competent counsel.

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Photo of Donald C. Barbati Donald C. Barbati

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault. In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.