Recent Case Law

PENSIONS AND BENEFITS

TRENT-MERCER v. POLICE AND FIREMEN'S RETIREMENT SYSTEM

OAL Docket No. TYP 8511-05, Agency Docket No. PFRS #3-10-32625, Initial Decision: August 10, 2006, Final Agency Decision: September 21, 2006. By Stein, ALJ. (11 pages).

The Board of Trustees of the Police and Firemen's Retirement System adopted as modified the initial decision of the administrative law judge, who ordered the Board to pay accidental disability retirement benefits to the petitioner senior corrections officer. The officer alleged that she sustained a psychological disability when she tried to squeeze through an opening in the automatic gate of the facility where she worked and the gate began to close on her, forcing a piece of metal into her abdomen. The petitioner further alleged that the gate would have crushed her if someone had not intervened. The ALJ concluded that the officer had satisfied the three-pronged test for a traumatic event under Kane v. Board of Trustees, Police & Firemen's Retirement System. The Board adopted the ALJ's conclusion that the officer had experienced a traumatic event, but it determined that the ALJ's analysis was incorrect. The Board stated that a psychic disability can arise only from "a violent, physical force or uncontrollable power" but that there was no such force or power in In re Patterson, which the ALJ had cited. The Board concluded that the record in this case indicated that there had been "a violent, physical force or uncontrollable power."

PENSIONS AND BENEFITS

BUENO v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 9188-02, Agency Docket No. PFRS #3-10-28188, Initial Decision: August 3, 2006, Final Agency Decision: September 12, 2006. By Robinson, ALJ. (25 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s initial decision — which affirmed the Board’s denial of the petitioner firefighter’s application for accidental disability retirement benefits because he had not experienced traumatic events on October 13, 1998 and September 11, 2001 — but remanded the matter to the ALJ for a finding on the issue of direct result. The firefighter, who worked for the Jersey City Fire Department, had participated in the relief efforts in Puerto Rico that followed Hurricane George in October 1998 and had been called to respond to the attack on the World Trade Center on September 11, 2001. The ALJ determined that the firefighter had not satisfied the criteria to support his claim that the psychological trauma sustained by him warranted an award of accidental disability retirement benefits. The ALJ determined that the firefighter’s participation in relief efforts in Puerto Rico had no relevance because he had not been asked to volunteer as an incident of his employment and that he did not prove that he experienced a disability that directly resulted from the fall of the towers or the mental effect of helping at Ground Zero.

PENSIONS AND BENEFITS

LaBARRE v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 8865-05, Agency Docket No. PFRS #3-10-32605, Initial Decision: August 15, 2006, Final Agency Decision: September 12, 2006. By Miller, ALJ. (14 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the initial decision of the administrative law judge, who denied the petitioner police officer’s application for accidental disability retirement benefits. The officer alleged that he injured his back when he arrested a suspect for being a disorderly intoxicated person in public. Throughout the officer’s contact with the suspect — including the arrest, transportation to the police department, and booking — the suspect was belligerent and uncooperative and was combative toward the officer. The suspect engaged in “kicking, thrashing, flailing, spitting, screaming, and cursing.” The ALJ concluded that the officer failed to satisfy the criteria for a traumatic event set forth in Kane v. Board of Trustees, Police & Firemen’s Retirement System (1) because arresting and restraining disorderly suspects was part of the stress and strain of his normal work effort and (2) because the officer’s injury did not result from “a great rush of force” where the force and energy that the suspect had generated did not land on the officer.

PENSIONS AND BENEFITS

CARMICHAEL v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 8512-05, Agency Docket No. PFRS #3-10-32454, Initial Decision: August 16, 2006, Final Agency Decision: September 12, 2006. By Stein, ALJ. (10 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the initial decision of the administrative law judge, who ordered that the petitioner senior corrections officer’s application for accidental disability retirement benefits be denied. The officer tripped and fell when he tried to wipe his feet on four or five sheets that had been placed on a rubber mat in front of an office door. Based on the standards for a traumatic event set forth in Kane v. Board of Trustees, Police & Firemen’s Retirement System, the ALJ concluded that the officer had not experienced a traumatic event because he had not fallen from “any significant height” and because the officer did not have “a sudden external force” exerted on him and the fall instead occurred as a result of his own conduct.

PENSIONS AND BENEFITS

DELUCCA v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 12442-05, Agency Docket No. PFRS #3-10-32688, Initial Decision: June 23, 2006, Final Agency Decision: September 12, 2006. By Cohen, ALJ. (21 pages).

The Board of Trustees of the Police and Firemen’s Retirement System rejected the initial decision of the administrative law judge, who had concluded that the petitioner was entitled to accidental disability retirement benefits because he had suffered a traumatic event. The officer injured his left knee when he stepped through the elevated floor in the police department’s radio room/communication center and struck the concrete slab floor, which was located about 10 to 12 inches below. The Board determined that the ALJ’s legal conclusions were “flawed.” The Board concluded that the ALJ’s analysis was based on “an artificial and oversimplified categorization” of the accident as a “collapsing structure” case rather than a slip-and-fall case and that the ALJ failed to acknowledge the long-standing principle that a finding of accidental disability requires that the accident was caused by a force that originated from an external source rather than the victim. The Board determined that no such force existed in this case.

PENSIONS AND BENEFITS

LUONGO v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM

OAL Docket No. TYP 10357-05S, Agency Docket No. PERS #2-10-171315, Initial Decision: July 25, 2006, Final Agency Decision: August 17, 2006. By Masin, ALJ. (13 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge, who ordered the forfeiture of the petitioner’s pension credit for his service as mayor from January 1, 1996 to December 31, 2000 and as State assemblyman from January 13, 1998 to December 31, 1999. The petitioner had pleaded guilty to federal criminal charges of mail fraud and subscribing a false tax return in connection with an alleged scheme to defraud campaign bank accounts and the “Mayor’s Community Fund” account by diverting monies from those accounts to his personal accounts for his personal benefit. The ALJ (1) considered the standards set forth in Uricoli v. Board of Trustees, PFRS and N.J.S.A. 43:1-3(c), which apply to determine whether a public employee’s vested pension rights should be forfeited due to dishonorable service, (2) found that the petitioner had been convicted of offenses that “directly touched” on his positions as a public official and a political figure, and (3) concluded that it was “entirely right” that the service that the petitioner performed from January 1996 through December 2000 be forfeited.

PENSIONS AND BENEFITS

HARAKSON v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM

OAL Docket No. TYP 9777-05, Agency Docket No. PERS #1142945, Initial Decision: July 14, 2006, Final Agency Decision: August 17, 2006. By LaFiandra, ALJ. (9 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge, who ordered that the petitioner worker’s application for accidental disability retirement benefits be dismissed with prejudice. The worker was a tenant interviewer at the Bayonne Housing Authority who was helping her supervisor remove a box of files from a shelf when the supervisor pulled the box, which then tilted forward and struck the worker in the chest. The worker’s knees buckled, and she hurt her neck and back when she moved backward. Applying the three-pronged test for a traumatic event set forth in Kane v. Bd. of Trustees, the ALJ determined that the worker satisfied one prong because she had met involuntarily with the source of the harm but that she failed to satisfy the remaining prongs because file retrieval was part of her normal work effort and because she did not demonstrate that “a great rush of force or uncontrollable power” was the source of her injury.

PENSIONS AND BENEFITS

IRVIN v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENTS SYSTEM

OAL Docket No. TYP 12244-05, Agency Docket No. PERS #1023605, Initial Decision: July 31, 2006, Final Agency Decision: August 17, 2006. By Strauss, ALJ. (10 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge, who affirmed the Board’s initial denial of the petitioner custodial worker’s application for accidental disability retirement benefits and denied her appeal. The custodial worker fell down four or five steps when she lost control of a heavy buffer machine that she was trying to carry up the stairs at a public school. The ALJ concluded that the custodial worker’s accident did not satisfy the three-part test for a traumatic event set forth in Kane v. Board of Trustees, Police and Firemen’s Retirement System (1) because buffing the steps was part of her normal duties, (2) because she had “initiated and independently performed the actions that caused her to lose control of the buffer” and therefore had not met involuntarily with the source of the harm, and (3) because she had been propelled down the stairs by gravity, which is an “unchanging force” and not “a great rush of force or uncontrollable power.”

PENSIONS AND BENEFITS

WILLIAMS v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM

OAL Docket No. TYP 2126-06S, Agency Docket No. PERS #2-10-210213, Initial Decision: July 26, 2006, Final Agency Decision: August 17, 2006. By Masin, ALJ. (8 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge, who denied the petitioner security guard’s application for accidental disability retirement benefits. The police asked the security guard, who worked at Rowan University, to watch a man who had been escorted out of the student center. When the man knocked down the security guard’s co-worker and ran, the security guard grabbed the man, threw him to the ground, and sustained a herniated disc. Applying the Kane v. Board of Trustees, Police and Firemen’s Ret. Sys. test for a traumatic event, the ALJ concluded that no traumatic event had occurred because “no appreciable outside force” had acted on the security guard. The ALJ further determined that, although the incident was not part of the normal stress and strain of the security guard’s job, it was not traumatic under the case law involving “violent” assaults on corrections officers.

PUBLIC EMPLOYEES

IN RE VARALLI

Appellate Division, A-5369-04T1, July 27, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19976.

Final decision of the Merit System Board that adopted the administrative law judge’s finding that the petitioner corrections officer had engaged in conduct unbecoming a public employee but that imposed a 30-day suspension instead of the one-day suspension recommended by the ALJ affirmed; the ALJ found that the officer had permitted an encounter with an attorney “to escalate into a race-based confrontation”; the Board noted that the parties had not supplied the ALJ with evidence of the officer’s previous one-day suspension for other conduct unbecoming a public employee, and it determined that this offense was sufficiently “outrageous” to warrant a 30-day suspension because it involved “interaction with a member of the public and the instigation of a racial confrontation”; the Board’s decision to increase the penalty that the ALJ had recommended was not arbitrary, capricious, or unreasonable, and it was adequately supported by the record.

PUBLIC EMPLOYEES

STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS v. CWA LOCAL 1040

Appellate Division, A-6396-04T1, July 20, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19943.

Vacation of an arbitration award that found an employee of the plaintiff Department of Corrections innocent of disciplinary charges affirmed substantially for the reasons expressed by the Law Division; the employee, who was a member of the defendant union, was charged with conduct unbecoming a public employee and was suspended without pay for five days; the union filed a grievance, and the matter proceeded to arbitration pursuant to the parties’ employment agreement; the arbitrator found the employee innocent because the arbitrator sustained only two of the Department’s three specific allegations; however, the disciplinary action should have been sustained because the arbitrator’s obligation under the agreement was to determine the employee’s “guilt or innocence” and because a finding of guilt was supported by the arbitrator’s factual findings; the Law Division properly determined that the arbitrator had exceeded the scope of his authority and that reinstatement of the penalty was warranted.

STATE EMPLOYEES

ROBERTS v. STATE OF NEW JERSEY DIVISION OF STATE POLICE

Appellate Division, A-5405-04T2, approved for publication July 19, 2006. (10 pages). Facts-on-Call Order No. 93114.

When the conduct of a State Trooper is the subject of both a criminal investigation and an investigation by the State Police to determine whether disciplinary charges should be filed, N.J.S.A. 53:1-33 requires that disciplinary charges be filed within 45 days of the disposition of the criminal investigation only if the Superintendent has previously “obtained sufficient information to file the matter upon which the complaint is based.” If the investigation by the State Police was interrupted by the criminal investigation, the 45-day period does not commence until “sufficient information” has been provided to the Superintendent to support the need for discipline.

PUBLIC EMPLOYEES

IN RE HUCHKO

Appellate Division, A-1228-04T1, July 12, 2006, not approved for publication. (41 pages). Facts-on-Call Order No. 19904.

Final decision of the Merit System Board that upheld the termination of the appellant police officer because he tested positive for cocaine on a random drug test affirmed; the officer’s second urine specimen, which was tested on the officer’s request by an independent laboratory instead of the State laboratory, also tested positive for cocaine; the Appellate Division rejected the officer’s arguments (1) that his test results could not be considered reliable in light of the failure of the respondent Borough’s drug testing policy to adhere to the Attorney General’s guidelines for testing law enforcement officers for drug use, (2) that the exclusionary rule applied to his administrative proceeding and required the suppression of his test results, (3) that the Board erred by upholding his immediate suspension without pay pending the resolution of the charges against him and that he should be reimbursed for the salary and benefits that were withheld during his suspension, and (4) that the test results of his second urine specimen constituted attorney work product and that the Board’s decision had to be reversed based on its consideration of those results.

PUBLIC EMPLOYEES

LENAPE REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION v. LENAPE DISTRICT SUPPORT STAFF ASSOCIATION

Appellate Division, A-5095-04T1, July 12, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19905.

Chancery Division order that permanently enjoined the defendant union from submitting to arbitration its breach of contract claim against the plaintiff Board of Education on behalf of a school custodian reversed; the custodian’s employment ended on June 30, 2002 after the Superintendent decided not to recommend the renewal of the custodian’s contract based on his “continued conduct unbecoming a school employee”; the union filed a grievance on the custodian’s behalf, and the Board filed this action to enjoin the arbitration that would have occurred; the parties disputed whether the grievance fell within the scope of the arbitration clause of their collective negotiations agreement; the Appellate Division concluded that, at the “very least,” it could not state “with positive assurance” that the arbitration clause was “not susceptible of an interpretation that covers” the grievance; therefore, the Appellate Division dismissed the Board’s complaint and referred the matter to binding arbitration.

PENSIONS AND BENEFITS

RINALDI v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES RETIREMENT SYSTEM

OAL Docket No. TYP 9958-04, Agency Docket No. PERS #2-10-199076, Initial Decision: May 22, 2006, Final Agency Decision: June 22, 2006. By Gerson, ALJ. (12 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge, who had granted the petitioner carpenter’s application for accidental disability retirement benefits. The petitioner’s foreman told him to inspect the roof because of a leak. To get to the roof, the petitioner climbed a ladder that led to a hatch in the ceiling. The petitioner opened the hatch door, felt the wind blowing “all over the place,” and lost control of the door, which slammed shut and struck him in the head and neck. The petitioner fell a few feet before grabbing onto the ladder. In DeBlasi v. Board of Trustees of the Public Employees’ Retirement System, the Appellate Division held that an employee had experienced a traumatic event when automatic doors struck him with force in the back, and the ALJ concluded that DeBlasi was “squarely on point.” The ALJ concluded that the petitioner had satisfied the test for a traumatic event that was set forth in Kane v. Board of Trustees of the PFRS.

PENSIONS AND BENEFITS

WIGGINS v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM

OAL Docket No. TYP 6427-05, Agency Docket No. PERS #1045595, Initial Decision: May 31, 2006, Final Agency Decision: June 22, 2006. By Miller, ALJ. (11 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge, who had denied the petitioner trash collector’s application for accidental disability retirement benefits. The petitioner strained his back when he pulled a commercial trash receptacle that weighed between 50 and 100 pounds over a one-foot snowdrift. The ALJ concluded that the petitioner had not satisfied any of the three prongs of the test for a traumatic event that was set forth in Kane v. Board of Trustees, Police & Firemen’s Retirement System (1) because his injury was part of the normal stress and strain of his job, (2) because he had lifted the receptacle voluntarily, and (3) because his injury resulted from a lifting motion that was not “a great rush of force or uncontrollable power.”

PENSIONS AND BENEFITS

GREEN v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 4997-05, Agency Docket No. PFRS #92494, Initial Decision: May 3, 2006, Final Agency Decision: June 13, 2006. By Miller, ALJ. (17 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s initial decision, which denied the petitioner corrections officer’s application for accidental disability retirement benefits. The ALJ found that the petitioner had slipped on a wet or waxed floor and had twisted his ankle while responding to an inmate fight. The ALJ found it “doubtful” that another officer had fallen on the petitioner’s foot, and he determined that, even if the other officer had fallen on the petitioner’s foot, slipping on the floor was the primary cause of the accident. The ALJ applied the Kane v. Board of Trustees, Police & Firemen’s Retirement System test for a traumatic event and concluded that the petitioner had failed to establish that his injury resulted from circumstances outside his normal work effort and from “a great rush of force or uncontrollable power.”

PENSIONS AND BENEFITS

McLAUGHLIN v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 778-05, Agency Docket No. PFRS #3-10-31737, Initial Decision: May 16, 2006, Final Agency Decision: June 13, 2006. By Hurd, ALJ. (13 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s initial decision, which denied the petitioner firefighter’s application for accidental disability retirement benefits. While fighting a fire in a three-story building, the petitioner left the third story to get a full tank of air, fell down seven steps that were wet and icy, and injured his leg and knee. The ALJ applied the test for a traumatic event that was set forth in Kane v. Board of Trustees, Police & Firemen’s Retirement System and concluded that the source of the petitioner’s injury was not “a great rush of force or uncontrollable power.” The ALJ determined (1) that, unlike Fairweather v. Public Employees Retirement System, no sudden external force had been exerted on the petitioner in this case, (2) that the accident occurred as a result of the petitioner’s own conduct, and (3) that the petitioner’s fall was not similar to a fall from “the top step of a tall ladder,” which was deemed to be a traumatic event in Kane.

PENSIONS AND BENEFITS

PETROZZINO v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 9090-05, Agency Docket No. PFRS #3-10-32184, Initial Decision: May 9, 2006, Final Agency Decision: June 13, 2006. By Frank, ALJ. (13 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s initial decision, which affirmed the denial of the petitioner corrections officer’s application for accidental disability retirement benefits. A window that the petitioner was trying to close slammed onto his hand, which caused him to pull away from the window. The petitioner fell backward, his back struck his desk and chair, and he sustained herniated discs that required surgery and that rendered him unable to work. The ALJ concluded that the petitioner had satisfied none of the three parts of the test for a traumatic event that was set forth in Kane v. Bd. of Trustees, PFRS (1) because closing a window was part of his routine work effort, (2) because the petitioner had pulled away from the window of his own volition, and (3) because “a great rush of force or uncontrollable power” did not cause his injury. Contrary to the petitioner’s argument, the slamming window, which had briefly trapped his hand, did not constitute a great rush of force.

PENSIONS AND BENEFITS

BURNS v. POLICE AND FIREMEN’S RETIREMENT SYSTEM

OAL Docket No. TYP 2599-05, Agency Docket No. PFRS #3-10-31814, Initial Decision: March 27, 2006, Final Agency Decision: June 13, 2006. By Martone, ALJ. (21 pages).

The Board of Trustees of the Police and Firemen’s Retirement System rejected the initial decision of the administrative law judge, which granted the petitioner police officer’s application for accidental disability retirement benefits. The petitioner was dispatched to help a woman who was in danger of overdosing on medication, but the woman resisted the petitioner’s attempts to take her to the hospital. The petitioner’s wrist “gave out” during her struggle with the woman. The Board rejected the ALJ’s initial decision because it incorrectly concluded that the incident was a traumatic event. The Board concluded that the petitioner’s injury did not satisfy the test for a traumatic event that was set forth in Kane v. Board of Trustees, PFRS because the event was “induced by the stress or strain of the normal work effort” and because it was not the result of “a great rush of force or uncontrollable power.”

PUBLIC EMPLOYEES

MASON v. DEPARTMENT OF THE TREASURY, DIVISION OF PENSIONS

Appellate Division, A-356-05T1, approved for publication June 29, 2006. (8 pages). Facts-on-Call Order No. 93081.

A police officer who is on a leave of absence from his public employer and who is injured while on active military service does not qualify for accidental disability retirement benefits.

PUBLIC EMPLOYEES

CORSO v. BOARD OF TRUSTEES, POLICE AND FIREMEN’S RETIREMENT SYSTEM

Appellate Division, A-353-05T2, June 23, 2006, not approved for publication. (16 pages). Facts-on-Call Order No. 19850.

Final decision of the Board of Trustees of the Police and Firemen’s Retirement System that denied the petitioner police officer’s application for accidental disability retirement benefits affirmed; as the petitioner descended a stairway, a stone slab on the last step collapsed beneath his foot, “immediately sprung up,” struck the back of his leg, and propelled him into the air; the petitioner felt “out of control,” and he was “snapped in a back and forth motion” before he landed awkwardly; five to 10 minutes later, the petitioner experienced “shooting spasms and pain down his legs”; the petitioner failed to satisfy the third prong of the test for a traumatic event that was set forth in Kane v. Board of Trustees, Police and Firemen’s Retirement System because he did not demonstrate that “a great rush of force or uncontrollable power” had caused him to stumble down one step.

PUBLIC EMPLOYEES

IN RE BUTLER

Appellate Division, A-5094-04T2, June 16, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19805.

Decision by the Merit System Board upholding a disciplinary action by the appointing authority that imposed a 90-day suspension from duty without pay and two conditions — that the appellant police officer successfully complete anger management training and counseling and that she pass a fitness-for-duty psychiatric examination — affirmed; the charges arose from an off-duty confrontation between the police officer and a citizen on the road in front of the police officer’s home; the record did not support the police officer’s contention that the 45-day time limit for filing charges had been violated, and there was no departure from the principles of substantial justice in the failure to comply with the Attorney General’s Guidelines.