The Appellate Division once again the considered the “undesigned and unexpected” standard as it pertains to qualifying for accidental disability retirement benefits in the case of Mason v. Bd. of Trustees, Police and Firemen’s Retirement System. In the case, the appellant alleged she was injured while qualifying with a firearm for her work as a Correction Officer with the New Jersey Department of Corrections. To this end, she had qualified on the range each year for the prior 18 years without injury. While qualifying, the appellant felt a soreness in her shoulder, but continued with the qualification process to obtain her firearms certification.

After qualifying, the appellant reported her injury, filled out the requisite paperwork, and went to the emergency room for treatment. Unfortunately, she subsequently had several shoulder surgeries, did not return to work, and was terminated. Thereafter, the appellant filed an application for accidental disability retirement benefits. The Board of Trustees of the Police and Firemen’s Retirement System (“Board”) awarded the appellant ordinary disability retirement benefits, finding her to be totally and permanently disabled from the performance of her assigned duties. However, the Board determined that the incident was not “undesigned and unexpected” and, thus, the appellant did not qualify for accidental disability retirement benefits. To this end, the Board noted that the potential recoil from firing a shotgun was anticipated and expected based on the appellant having qualified with a shotgun in each of the 18 years prior to the incident.

Following an administrative hearing, an Administrative Law Judge determined that the incident did not qualify as an unexpected happening for an award of accidental disability retirement benefits. In turn, the Board adopted the Judge’s decision. The appellant appealed the determination to the Superior Court of New Jersey, Appellate Division.

On appeal, the Appellate Division affirmed the Board’s determination. Specifically, the Appellate Division held that it was not unusual or extraordinary circumstances as the appellant was required to qualify with a shotgun each year to maintain her position as a correction officer. Accordingly, the Appellate Division supported the Board’s determination that appellant’s total and permanent disability was not the result of an event that was “undesigned and unexpected.”

In recent years, New Jersey courts have addressed and analyzed the “undesigned and unexpected” standard in many opinions.  Typically, the determination as to whether an incident is “undesigned and unexpected” to qualify for accidental disability retirement benefits is a factually sensitive. In other words, it depends upon the specifics behind the incident in question.  As a result, courts have issued a myriad of inconsistent results as to when an incident qualifies as “undesigned and unexpected.” Consequently, if you are thinking about filing for accidental disability retirement benefits, it is imperative that that you consult with an experienced attorney who is familiar with the applicable law pertaining to accidental disability retirement benefits and, more specifically, pertaining to the “undesigned and unexpected” standard.

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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.