As reported by nj.com, more than 20,000 police officers, firefighters, teachers, and other public employees put in their retirement papers last year as momentum was building for sweeping health and pension reform in Trenton, state figures show. That is a 60 percent jump from 2009 retirements and the highest in at least a decade,
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.
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.