The Supreme Court of New Jersey, in the recent decision of Richardson v. Board of Trustees, Police and Fireman’s Retirement System, has ordered major changes in the criteria applied to the granting of an accidental disability pension. The Court has replaced the traditional three prong test with a new five prong test which will make it much easier for the members of the Police and Fireman’s Retirement System, the Public Employees Retirement System and TPAF to receive the accidental disability pension for their disabling injuries.
A member was required to demonstrate that:
- his injuries were not induced by the stress and strain of the normal work effort;
- that he met involuntarily with the object or matter that was the source of the harm; and
- the source of the injury itself was a great rush of force or uncontrollable power.
The problem was that many accidents did not represent an external force or unstoppable power. The Pension Boards and the Courts could not agree on the meaning of the old test and for 20 years we saw chaos in the pension system. Before this decision, accidents which may have been as a result of falling down, or as a result of an altercation, were often rejected because the Board of Trustees of the Police and Fireman’s Retirement System decided that these injuries were part of the nature of the job, and, therefore, did not constitute a traumatic event.
The Supreme Court in overturning that view specifically pointed out that those accidents were just the kind of events that if resulting in disability will result in eligibility for an accidental disability pension.
Under the Supreme Court’s decision in Richardson v. Board of Trustees of the Police and Fireman’s Retirement System, an accident will qualify for eligibility for an accidental disability pension if it results in permanent and total disability, as a direct result of a traumatic event that is
- a) identifiable as to time and place;
- b) undesigned and unexpected; and
- c) caused by a circumstance external to the member (not the result of pre-existing disease which is aggravated or accelerated by the work),
- d) that the traumatic event occurred during the member’s regular and assigned duties and not the result of willful negligence and
- e) results in mental or physical incapacity from performing the usual duties of the job. Here the focus will be whether during the regular performance of a job an unexpected happening, not the result of a preexisting condition alone, or in combination with the work has occurred, directly resulting in permanent total disability.
More recently the Supreme Court of New Jersey in the matter presented to it by Vicki Beyer, Shareholder in the Workers’ Compensation Group of Stark & Stark, of Guadagno v. Board of Trustees of the Police and Fireman’s Retirement System, expanded the definition of traumatic event to include those who suffer psychological injuries even without a physical injury. Here the applicant received what he considered a credible threat to his family from an inmate which resulted in a psychiatric trauma.
The Supreme Court has decided that in order to qualify for an accidental disability pension based upon a psychiatric trauma “the disability must result from direct personal experience of a terrifying or horror inducing event that includes actual or threatening death or serious injury or similarly serious threat to the physical integrity of the member or another person. The event itself causing the psychiatric trauma must be viewed objectively as capable of causing a reasonable person to suffer such trauma. Therefore, a subjective reaction to a perceived event will not qualify for an accidental disability pension.
This represents a major change in the eligibility standards for the accidental disability pension. Gone is the need to demonstrate the level of force involved in the accident as is the need to show that the force commenced from someone or something else. By this decision, the Supreme Court has extended protections to Public Employees engaged in hazardous activities and has brought a new level of protection to the job.
Senator Stephen M. Sweeney and Senator Robert Singer in the New Jersey State Senate and Linda Stanger and Joseph Egan of the New Jersey State Assembly have introduced to both Houses the Thomas P. Kanzinella, 21st Century First Responders Protection Act. This bill for the first time provides comprehensive coverage to first responders exposed to risks such as pathogens or biological toxins, cancer causing radiation, hazardous chemicals and exposure to carcinogens.
This bill as introduced creates a presumption that a death, injury or disability for psychiatric stress experienced by a public safety worker in response to a terrorist attack, epidemic or other catastrophic emergency will be presumed is related to that event. Furthermore, each employer of First Responders would be required to provide psychological and social counseling in care for its workers after such emergencies.
In addition, if a public safety worker is exposed to a communicable disease or any pathogen or toxin, then any such exposure shall be presumed to be related to that exposure and the employer will be required to provide such treatment as necessary.
There is an additional provision that protects First Responders from the effects of vaccines such as small pox or others which may be developed to prepare for or respond to an epidemic. The law provides that even if the vaccine is taken voluntarily, then the employer will be responsible for treating any side effects of that vaccine.
This Bill, if passed into law, will also protect firefighters and public safety workers who are exposed to known carcinogens or radiation. The employer will be required to keep records of such carcinogens. Also any firefighter who has worked for five years and develops any type of cancer that cancer shall be presumed to be related to employment and the employer will be required to provide treatment and benefits to the firefighter.
Since the tragic attack on the World Trade Center which drew countless volunteers among First Responders from New Jersey, Thomas Canzanella determined that New Jersey’s First Responders, Firefighters in particular, receive comprehensive protection under the law for the risks that they face in preparation as a regular part of preparation and training for catastrophic events.