A Capehart Scatchard Blog

Accident Walking To Car Found Compensable In Application for Accidental Disability Pension

By on June 18, 2018 in Compensability with 1 Comment

New Jersey public employees who are unable to work due to work accidents may apply for generous accidental disability pensions, providing approximately two thirds to 70% of pay with no federal taxes owed.  The standards for an accidental disability pension are rather similar to those in a workers’ compensation case, as is shown by the recent case of Bowser v. Board of Trustees, Police and Firemen’s Retirement System, A-0568-16T4 (App. Div. June 13, 2018).

The case involved correctional officer, Kristy Bowser, who suffered a fall on ice outside the Mercer County Correctional Center.  On the day of the injury Bowser parked her car on the employer’s property in an area reserved for corrections officers.  She worked one shift already and was then asked to work a second shift.  She asked a co-worker to cover for her while she retrieved feminine hygiene products from her car.  She slipped on black ice near the jail where she worked while walking to her car.  The Board of Trustees agreed that Bowser was totally and permanently disabled from working her job, that the disability was not caused by her own willful negligence, and that she was physically incapacitated from performing her usual duties or any other duty.  However, the Board disagreed that this arose from the direct performance of her duties and therefore the Board denied her claim.

The Appellate Division reversed in her favor.  It cited a prior case which said “Common sense dictates that the performance of an employee’s actual duties incorporates all activities engaged in by the employee in connection with his or her work, on the employer’s premises, from the formal beginning to the formal end of the workday.”

The Court added, “Just as restroom breaks at the work location during the workday ‘are necessary concomitants of an employee’s performance of his or her regularly assigned tasks,’ Kasper, 164 N.J. at 586 n.7, so was Bowser’s break to retrieve those necessary products. She remained on the MCCC premises, and had no intention of leaving.  She obtained relief from a fellow officer so she could briefly leave her post, as she would if she had headed straight to the restroom.  And, she was ‘on the clock,’ as she would be during a restroom break.  Consequently, her accident occurred ‘during and as a result of the performance of her regular or assigned duties.’”

For these reasons, the Appellate Division reversed the Board and awarded the officer her accidental disability pension.  Practitioners should note that accidental disability pensions are for work injuries only and are available to public employees.  Non-work medical conditions cannot be considered in an accidental disability application, unlike less generous ordinary disability pensions.  The standards for compensability in an accidental disability pension application for a public employee are similar to those in workers’ compensation.  Generally in workers’ compensation, on premises injuries are compensable unless the activity of the employee constitutes a deviation from employment or the injury is idiopathic.  Walking to one’s car during a break to retrieve something on the employer’s premises would be covered under New Jersey workers’ compensation law just as it was in this disability pension case.

Share

Tags: ,

John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

.

There is 1 Brilliant Comment

Trackback URL | Comments RSS Feed

  1. Robert Franchetti says:

    In that both WC and Accidental Disability benefits apply, is there an offset for either and can the claimant still seek PPD under the WC even when getting Accidental Disability?

Post a Comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Top