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Legal Q & A



Deborah M. Kole, League Staff Attorney
Deborah M. Kole
League Staff Attorney

Accidental Disability Retirement
and Progressive Disorder

Q One of our police officers suffered a serious head trauma from hitting his head on the ground when he fell chasing a suspect. It has left him totally and permanently disabled. He has put in for accidental disability retirement. I was under the impression that only disability caused by “a great rush of force” can qualify for such retirement benefits, but I have been told that this standard has changed. Is this true?

A This standard has indeed been modified. The New Jersey Supreme Court clarified the meaning of a “traumatic event” for purposes of triggering accidental disability retirement in 2007. In the case of Richardson v. Board of Trustees, Police and Firemen’s Retirement System (PFRS) 192 N.J. 189, a corrections officer, Richardson, responded to an emergency signal from fellow officers struggling with an inmate. During the ensuing melee, the inmate knocked Richardson backwards, causing him to fall on his left hand and completely tear the ligament. Surgery was not successful, and Richardson was told he could only return to light duty. He applied for accidental disability retirement, but PFRS awarded only ordinary disability, and an administrative law judge and the Appellate Division affirmed. Although all agreed he was permanently and totally disabled, the lower courts did not view the occurrence that resulted in Richardson’s injury as a “traumatic event” under the case law.

In reversing the Appellate Division, the Supreme Court “reevaluated” the standard set for accidental disability retirement in Kane v. Board of Trustees, PFRS, 100 N.J. 651 (1985), which required that the disability be caused by “a great rush of force or uncontrollable power”. Instead, the Court set forth the following requirements for such retirement: 1) the individual is totally and permanently disabled and incapacitated from performing his or any other duty; 2) the disability is caused by a traumatic event that is identifiable as to time and place, unexpected, and externally caused (not due to pre-existing disease); 3) the event occurred during and because of the individual’s regular duties; and 4) the event was not caused by the individual’s own willful negligence. The Court found that these standards were met in Richardson’s case, and that he should therefore be granted accidental disability retirement benefits.

 

 

Q What exactly is the progressive discipline doctrine? Does it really mean that police and others subject to the doctrine cannot be terminated due to their first infraction no matter how serious it is?

A The New Jersey Supreme Court has made it clear that this is not the way the doctrine is applied. In the case of In the Matter of Terry Hermann, 192 N.J. 19, decided on July 16, 2007, the court ruled that a single egregious act can, in certain circumstances, be enough to support the firing of a public employee without the use of further progressive discipline. In reversing the Appellate Division, the Court found that the lower tribunal had impermissibly substituted its judgment for that of the administrative agency, the Merit System Board.

In this case, a trainee with the Division of Youth and Family Services (DYFS) was sent to investigate an allegation of child abuse against a five year old child who had started a fire in the home. The trainee interviewed the child in a room containing oxygen tanks in the closet. These tanks had been pointed out to the trainee. Nevertheless, while questioning the child about what kind of lighter he used to start the fire, the trainee took out a cigarette lighter and lit it, despite the danger of igniting the tanks.

The Court noted that the progressive discipline doctrine is not universally applicable. It need not be considered when the misconduct is severe, when it is unbecoming to the employee’s position or renders the employee unsuitable to the position, or when its application would be contrary to the public interest.

In this case, the public interest would not be served by insisting on the use of progressive discipline, said the Court, because DYFS has to be able to trust and depend upon the good judgment of the case workers it sends out to deal with children and families. The trainee’s conduct had made it impossible for the agency-employer to have the necessary trust in this employee, and therefore termination was appropriate

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This column is for informational purposes only, and is not intended as legal advice.

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