One of the most common misconceptions is that suffering from pre-existing diseases and/or conditions is an automatic disqualifier from receiving accidental disability retirement benefits. Nevertheless, many applications for accidental disability retirement benefits are denied by the various pension boards due to an employee’s total and permanent disability being attributable to a pre-existing disease or condition.

As indicated in our post last week, deciding whether to utilize an attorney when filing for application for disability retirement benefits is an important initial consideration. Many individuals utilize the services of an attorney, while others do not. Nevertheless, many applications for disability retirement are routinely rejected by a Board of Trustees of a pension

As reported by, on August 7, 2013, Governor Christie signed an executive order creating a new investigatory unit to uncover alleged pension fraud and disability fraud perpetrated by public employees across the State of New Jersey. The Governor’s Office stated that the new unit would work side by side with the Attorney General’s Office to

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

On January 27, 2010, the Appellate Division decided Gregory Russo v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-3706-08T2. In the case, Gregory Russo appealed from the March 10, 2009 final determination of the Board of Trustees of the Police and Firemen’s Retirement System (“Board”) denying his application for accidental

On January 21, 2010, the Appellate Division decided In the Matter of Rosemarie Tatusko, Docket No.: A-2888-08T3. The case involved an appeal from a final decision of the Board of Trustees of the Police and Firemen’s Retirement System which denied Rosemarie Tatusko’s (“Appellant”) application for an accidental disability pension.

Appellant was employed by the Department of Corrections as a senior correctional officer at the Burlington County Jail. Her application for an accidental disability pension was based on an incident that occurred on Ocotber 22, 2005, when she assisted in saving a female inmate who had attempted to commit suicide. Appellant heard a “hacking gagging noise,” and when she scanned the prison cells to determine the source of this noise, she found the inmate hanging from a sheet in her cell. Appellant called another correctional officer to help her and the two of them were able to cut down the sheet with scissors and get the inmate to the floor. Appellant though at the moment that the inmate had died, but later found out that she had survived the attempted suicide.

At the time of the incident, Appellant had been a corrections officer for eight years. During that time, she had witnessed three other attempted suicides, two of which involved inmates cutting their wrists and the third of which also involved a hanging. Appellant did not experience any psychological problems after any of those three prior incidents. However, Appellant suffered a total and permanent psychological disability as a result of the October 22, 2005 incident. When Appellant was asked at the hearing on her application before an Administrative Law Judge (“ALJ”) how the October 22, 2005 incident differed from those prior incidents, she responded: “I don’t know. I can’t explain.”

The ALJ concluded that Appellant’s observations of the inmate’s attempted suicide and efforts to save her constituted a traumatic psychological event and, therefore, granted Appellant’s application. The Board rejected this recommended conclusion and determined that Appellant’s application should be denied because Appellant’s observation of the inmate’s attempted suicide and her subsequent efforts to save the inmate were not objectively capable of causing a reasonable corrections officer with training and experience similar to appellant to suffer a disabling mental injury. This appeal ensued.Continue Reading Denial of Accidental Disability for Mental Injury Sustained

On January 14, 2010, the Appellate Division decided In the Matter of Jerry Duckworth, Department of Youth Services, County of Passaic, Docket No.: A-6007-07T1. In the case, Jerry Duckworth appeals from a final decision of the New Jersey Department of Personnel, Merit System Board, dismissing his appeal of removal from employment. The Board adopted the findings and conclusions of an Administrative Law Judge (“ALJ”), determining that Duckworth had entered into an enforceable settlement agreement with his employer, the County of Passaic.

Duckworth was employed as a senior juvenile detention officer at the Passaic County Juvenile Detention Center. In 1990, he injured his back at work and required surgery to remove a herniated disc. The surgery left Duckworth suffering chronic low back pain. In 2002 and 2003, a physician engaged by Passaic County, examined Duckworth and diagnosed permanent back injury and a chronic foot drop. The physician reported to the County that, because of these medical conditions, Duckworth was not able to perform safely the duties of a juvenile detention officer and that he was at risk for re-injury.

To accommodate Duckworth’s disability, the County reassigned him to less rigorous duties in the laundry room of the detention center. About one and a half years later, Duckworth objected to this reassignment and sought a hearing before the Merit System Board. In 2006, the Board determined that the duties assigned to Duckworth were outside his job description and ordered the County to reassign him and also conduct a complete fitness for duty examination. The same physician examined Duckworth again in May 2006 and reiterated his prior conclusions. 

The County gave notice to Duckworth of disciplinary action to remove him from his position because of unfitness for duty. After conducting departmental hearings, the County terminated his employment on December 6, 2006. Duckworth requested a hearing and also applied for disability retirement. Some months later, he withdrew his retirement application.

Pursuing his appeal, Duckworth appeared with his attorney for a hearing before an ALJ on January 9, 2008. The attorneys conferred and reached an agreement, which they reported to the ALJ as a settlement. No transcript was made on that date, but the ALJ discussed the terms of the settlement with counsel in the presence of Duckworth. The settlement required that the County support reinstatement of Duckworth’s disability retirement application in exchange for his dismissing the pending appeal.

The attorney for the County drafted a written settlement agreement and sent it to Duckworth’s attorney. When he received no response for several months despite several inquiries, he filed a motion before the ALJ to enforce the settlement. In the meantime, Duckworth re-submitted his application for disability retirement. In March and April 2008, he heard from the Division of Pensions and Benefits that the County had not responded to its requests for information relevant to his application.Continue Reading Settlement to Remove Senior Juvenile Detention Officer Enforced

On July 23, 2009, the Appellate Division decided Barbara Cannella v. Board of Trustees, The Public Employees’ Retirement System, Docket No.: A-4389-07T2. In the case, Barbara Cannella appealed the decision of the Board of Trustees of the Public Employees’ Retirement System (“Board”) denying her application for accidental disability retirement benefits under N.J.S.A. 43:15A-43.

On December 26, 2002, Cannella, a State employee working for the Division of Youth and Family Services, arrived at the parking lot designated for State employees where she was assigned to park. The parking lot was located a block from the building where she worked. As she exited her vehicle, she slipped and fell on ice, sustaining injuries.

On April 19, 2006, the Board determined that due to the injuries incurred in the fall, Cannella was permanently and totally disabled from performing her regular and assigned duties, but did not qualify for accidental disability benefits within the meaning of N.J.S.A. 43:15A-43. In order to be entitled to accidental disability retirement benefits, the statute requires that the disabling injury be “as a direct result of a traumatic event occurring during and as a result of the performance of [her] regular or assigned duties.” The Board determined that she did not meet this criterion and denied her application for accidental disability retirement benefits.

Cannella appealed and the case was sent to an Administrative Law Judge (“ALJ”) for an administrative hearing. Following cross-motions for summary judgment, the ALJ found that because Cannella was a block away from her place of employment when she fell, she had not yet completed her commute and, as a result, the fall had not occurred “during and as a result of the performance of [her] regular or assigned duties.” As such, the ALJ granted the Board’s motion for summary judgment and dismissed the appeal. By letter dated May 27, 2008, the Board adopted the Initial Decision of the ALJ and denied Cannella’s application for accidental disability retirement benefits. This appeal ensued.

The Appellate Division affirmed the Board’s determination and dismissed Cannella’s appeal. The Court indicated that Cannella had not reached her employer’s building, but still had another block to go. Moreover, she was not at the premises where she worked when she fell. At the time of her fall, she had not begun any preliminary efforts in commencement of work, but rather still had to continue her commute on foot to her workplace. According to the Court, to award accidental disability retirement benefits under these circumstances would be to significantly extend the scope of coverage. The statutory language was designed to reassert the going and coming rule present in workers’ compensation law, providing that workers were not entitled to benefits for injuries sustained while traveling to and from work. Thus, the Court held the Board’s application of the accidental disability statute to the facts of the case was consistent with the legislative intent to enforce the going and coming rule.Continue Reading Going and Coming Rule Serves as Basis for Denial of Application for Accidental Disability

Recently, the primary authors of this blog, Frank M. Crivelli, Esq. and Donald Barbati, Esq., released a publication entitled “Taking the Necessary Steps to Win Your New Jersey Public Employee Disability Pension Appeal.” 

The publication thoroughly examines the different New Jersey Pension Systems, including the Public Employees’ Retirement System, Police and Firemen’s Retirement System, and