As reported by, a State Correction Officer will get another chance to prove he deserves a higher pension due to a fight with an inmate who threw a tray of feces into his face, the Appellate Division ruled.  George Garrett will get a new pension board hearing because an administrative law judge did not determine whether the tray of feces to the face was a “terrifying or horror-inducing event.’

Garrett was a Senior Correction Officer assigned to New Jersey State Prison in Trenton in February 2009 when he entered a cell because he believed an inmate was attempting suicide, the decision states.  When Garrett got inside, the inmate threw the tray, which also contained a liquid.  Garret fought with the inmate and backup officers were needed to subdue the situation.  Garrett, an 18-year officer at the time, was cleaned off at the prison, then went to a hospital and sought follow-up blood tests and received psychological counseling, which was provided by the New Jersey Department of Corrections.  He stopped working as an officer shortly after the incident due to emotional stress and filed for disability retirement months later. Garrett reported that he feared for his life during the incident because he could not see and he did not know if the inmate had a weapon.  Additionally, he suffered anxiety because he feared he might have been exposed to an infectious disease.

The Board of Trustees for his pension system, the Police and Firemen’s Retirement System, agreed he was disabled, but granted him an ordinary disability.  However, the Board found he did not experience a “terrifying or horror-inducing event.”  Garrett appealed, requesting an accidental disability, which has a higher benefit. Generally, ordinary disability is 40 percent of an employee’s final year’s salary, while accidental is 66 2/3 percent.

To determine if he should get the accidental retirement benefit, the Board send the case to the Office of Administrative Law (“OAL”).  To this end, the OAL needed to determine whether Garrett’s psychological disability was precipitated by a physical injury during the incident or whether the event was terrifying or horror-inducing to a reasonable person.  However, the judge assigned the case never analyzed Garrett’s confrontation with the inmate against case law to determine that question, the Appellate Division determined.  The judge did rule Garrett’s psychological disability was a pre-existing condition not caused by the fight in the cell and ruled the incident was minor, as were Garrett’s injuries, and they did not lead to any disabling condition.  Thereafter, the case went back to the Board.

Garrett appealed to the Appellate Division, which decided that the OAL needs to re-hear the case and finally answer the question.  As such, the Court stated, “[t]hus, we remand this matter…for the factual determination of whether a reasonable person having a tray of feces thrown in his or her face would find that event ‘a terrifying or horror-inducing event that involves actual or threatened death or serious injury.”

As a law firm specializing in helping individuals obtain accidental disability retirement benefits, this case illustrates the need for competent legal representation at all stages of a pension appeal, from submitting the initial application through formal hearings.  The unique facts and circumstances regarding a certain individual or the incident in question can have a drastic effect on whether an individual is entitled to accidental disability retirement benefits under the prevailing case law.  As such, any person considering filing an application for accidental disability retirement, feel free to contact our office as we are attorneys experienced in this field of law.



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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.