BRUCE CARMICHAEL v. DIVISION OF PENSIONS AND BENEFITS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3991-07T23991-07T2

BRUCE CARMICHAEL,

Appellant,

v.

DIVISION OF PENSIONS

AND BENEFITS,

Respondent.

_____________________________________________________

 

Submitted January 21, 2009 - Decided

Before Judges Skillman and Grall.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury.

Bruce Carmichael, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Marc Krefetz, Deputy Attorney General, on the brief).

PER CURIAM

On September 11, 2006, the Board of Trustees of the Police and Firemen's Retirement System issued a final decision, which denied appellant's application for an accidental disability retirement on the ground that the accident that resulted in his total and permanent disability did not constitute a "traumatic event" within the intent of N.J.S.A. 43:15A-43 and therefore he was only entitled to retire on an ordinary disability pension. In reaching this conclusion, the Board adopted a recommended initial decision of an Administrative Law Judge (ALJ), which relied upon the tests for determining the occurrence of a "traumatic event" set forth in Kane v. Board of Trustees, Police & Firemen's Retirement System, 100 N.J. 651 (1985). Appellant did not file an appeal from the Board's final decision denying his application for an accidental disability pension.

Nearly a year after that final decision, on July 24, 2007, the Supreme Court decided Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), which significantly changed the tests for determining the occurrence of a "traumatic event" set forth in Kane.

Following the Court's decision in Richardson, numerous retirees such as appellant whose applications for accidental disability retirements had been denied under the tests set forth in Kane inquired as to whether the Board would reconsider their applications under the tests set forth in Richardson. In response, the Board adopted a resolution on October 15, 2007, which indicated that it would not reconsider cases in which applications for accidental disability had been denied more than forty-five days before Richardson was decided and the retiree had not filed a timely appeal:

WHEREAS, on July 24, 2007, the Supreme Court of New Jersey issued its opinion in Richardson v. Board of Trustees of the Police and Firemen's Retirement System,

192 N.J. 190 (2007); and

WHEREAS, the decision changed the standard for the award of accidental disability retirement benefits by changing the statutory construction of the term "traumatic event" as it had previously been construed under Kane v. Board of Trustees of the Police & Firemen's Retirement System, 100 N.J. 651 (1985); and

WHEREAS, prior to the Supreme Court's ruling on July 24, 2007, the Board issued agency determinations in the cases that have come before it in accord with the law of the case at the time the matter was heard by the Board, which was governed by Kane, supra, and its progeny;

WHEREAS, applicants who have been denied an accidental disability retirement under the Kane test have inquired as to whether the Board will reconsider their case under Richardson; and

WHEREAS, upon advice provided by the Attorney General the Board is applying the Richardson decision to matters that have not reached final judgment in accord with Coons v. American Honda Motor Co., 96 N.J. 419 (1984);

WHEREAS, in accord with Buono v. Teachers' Pension & Annuity Fund, 188 N.J. Super. 488 (App. Div. 1983), the Board will not reconsider cases that have reached final decision under the standard set forth in Kane v. Police & Firemen's Retirement System, supra, in any case that has reached final judgment, these include but are not limited to cases in which the agency decision is final and the opportunity for appeal has expired,

WHEREAS, this policy is adopted to reduce administrative burdens and promote administrative efficiency and ensure consistency among the several pension Boards.

NOW THEREFORE, BE IT RESOLVED THAT,

The Division of Pensions and Benefits shall notify interested parties that the Board will not reconsider cases under Richardson which have reached final judgment, including but not limited to cases in which the agency decision is final and the opportunity for appeal has expired.

On February 15, 2008, appellant sent a letter to the Board requesting reconsideration of the denial of his application for an accidental disability retirement. On February 21, 2008, the Board denied appellant's request for reconsideration based on the previously quoted October 15, 2007 resolution.

On appeal, appellant argues that the Board's refusal to reconsider his application for an accidental disability retirement in light of the tests set forth in Richardson was arbitrary and capricious. We reject this argument. As stated in the Board's October 15, 2007 resolution upon which it based its denial of appellant's request for reconsideration, a change in the law is not ordinarily considered an adequate reason for reopening cases in which a final decision has been made and the time for appeal has expired. See Henderson v. Camden County Mun. Util. Auth., 176 N.J. 554, 561 (2003); Coons v. American Honda Motor Co., 96 N.J. 419, 421 (1984); Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 434 (1975); Buono v. Bd. of Trs. of Teachers Pension & Annuity Fund, 188 N.J. Super.

488, 492-93 (App. Div. 1983). We also note, as appellant acknowledges, that he was advised at the hearing before the ALJ that Richardson was pending before the Supreme Court and could have an impact upon his application. Therefore, appellant had ample notice of the possibility of a change in the law that may have made it advisable for him to appeal from the denial of his application for an accidental disability retirement.

Affirmed.

 

The other pension boards (Public Employees' Retirement System, Teachers' Pension and Annuity Fund and State Police Retirement System) adopted similar resolutions to ensure uniformity and consistency among the Boards.

(continued)

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5

A-3991-07T2

March 9, 2009