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Appellate Division Allows Accidental Disability Pension For Work Injury To Custodian

By on April 19, 2012 in Uncategorized with 0 Comments

The court makes clear that an unexpected event is covered even if the employee could foresee the harm

Accidental disability pensions in the public sector remain controversial because employees receive two thirds or more of their pay for life with no federal tax obligation and no state tax obligation until age 65.  The receipt of an accidental disability pension by a public employee disqualifies the employee from receiving workers’ compensation benefits in most cases.  The case of Brooks v. Board of Trustees, Public Employees’ Retirement System, A-3778-10T3 (App.Div.April 17, 2012) continues the trend of loosening the standards for such generous awards.

James Brooks worked as a custodian for the Willingboro Board of Education.  On July 24, 2008, he heard the principal direct someone to bring a flatbed truck to the front of the school.  Several teenage boys were trying to carry a weight bench weighing about 300 pounds into the school. Brooks tried to figure out how to get it into the gymnasium. He removed a center pole in the door to enlarge the opening. 

Brooks asked two of the boys to help him tip the weight bench on its end to lift it onto the flatbed truck.  The boys began lifting it but dropped their side of the bench halfway up. Brooks heard his shoulder snap as the bench fell to the floor.  He did not drop his side of the bench when the boys did because his feet were underneath the bench.

In a letter date January 21, 2010, the Board of Trustees of the Public Employees Retirement System denied Brooks’ application for a disability pension.  There was no dispute that he was totally and permanently disabled.  However, the Board held that this incident was not “undersigned and unexpected.” The Board also commented that he was over age 60 and could obtain a service retirement pension. The Office of Administrative Law affirmed the denial.

In its opinion, which is reported, the Appellate Division reviewed the applicable  standard and noted that the requirement of the happening of a traumatic event which is unexpected, “not the result of pre-existing disease alone or in combination with the work. . .” (citations omitted).  The focus of the court was on the question of whether this accident was “undersigned and unexpected.”

Appellant was confronted with the unusual situation of a group of students attempting to carry a 300-pound weight bench into the school, and then, after the appellant took charge of this activity, the boys suddenly dropping one side of the weight bench, placing its entire weight on appellant. . . [I]t is clear that an accident can be ‘undesigned and unexpected’ under the Richardson tests even though it may be concluded in retrospect that the employee could have anticipated the risk of such an accident and taken steps to avoid it.

In short, the court held that negligence by the employee is not a factor in disqualifying the employee from an accidental disability pension.  It said, “A public employee who is totally and permanently disabled as a direct result of a traumatic event occurring in the course of employment is disqualified from receiving an accidental disability pension only if the traumatic event resulted from the ‘member’s willful negligence.’ N.J.S.A. 43:15-43.”  Even if the employee’s conduct contributed to the accident, that fact alone will not disqualify the applicant from an accidental disability pension.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, 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.

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