On-Duty Sexual Assault Not An ‘Accidental Disability’

Yessenia Montalvo was a member of the Newark, New Jersey Police Department for 13 years. When she was on duty on August 23, 2009, she went to Newark Municipal Court to obtain a warrant for one of her active investigations. After obtaining the warrant, she went to the apartment of Louis Weber, a fellow Newark police officer, to return a pair of karate pants that she had mended for him.

When Montalvo arrived at the building, she telephoned Weber to let him know she was outside. He invited her upstairs to see his new apartment. While she was in the apartment, Weber sexually assaulted her by grabbing her hair and forcing himself on her. Montalvo left Weber’s home and returned to her precinct. She did not disclose the incident to her supervisors at that time. More than a year later, after she had checked herself into the hospital for stress and depression, she reported the incident to her supervisors.

Montalvo filed a claim for “accidental disability benefits,” a status that would bring a higher level of disability payment. Under New Jersey law, to be eligible for treatment as an accidental disability, the officer’s injuries must be caused by a “the traumatic event occurring during and as a result of the member’s regular or assigned duties.”

An appeals court upheld the City’s denials of Montalvo’s disability application. The Court observed that “the organizing principle is that one who is at the employer’s premises solely to do his or her duty, and who, while doing what he or she is expected to do, is disabled by a traumatic accident, will qualify for inclusion in the class of those injured during and as a result of the performance of his regular or assigned duties. The premises rule encompasses activities preparatory to but essential to the actual duty. On-premises lunch and restroom breaks that are necessary concomitants of an employee’s performance of his or her regularly assigned tasks are included so long as they occur within the confines of the workday at the work location.

“An employee who is injured while off-premises is not automatically excluded from accidental disability protection. Nevertheless, compensable off-premises activities must still involve the employee’s regular or assigned duties. Here, Montalvo was running personal errands at the time of the alleged sexual assault, even though the event occurred during her work shift. Montalvo cannot argue that she was performing police business at the time she went into Weber’s apartment to drop off the pants she had mended and to view his new apartment. Her injury did not result from Montalvo’s regular or assigned duties.”

Montalvo v. Police and Firemen’s Retirement System, 2015 WL 965986 (N.J. Super. 2015).