Legal Report

I have devoted many Legal Reports to the issue of what constitutes an “accident” for the purpose of establishing entitlement to an Accidental Disability Retirement (3/4). Because of some recent events and questions raised, this Legal Report will cover another requirement that must be met in order to qualify for ¾. This is the requirement that in order to be entitled to ¾, the applicant must be “Physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident not caused by his own willful negligence SUSTAINED IN SUCH SERVICE and while actually a member of the policemen’s and firemen’s retirement system.” The “sustained in service” requirement is also a requirement that must be met in order to qualify for entitlement to a 50% Performance of Duty Disability Retirement.

It is particularly important to understand the “in service” requirement in the context of Nassau County Police Department Policies, POL 4001, which describes “duty.” POL 4001 states that “In furtherance of the Department’s Mission, it is the duty of the Police Department and the Members of the Force, at all times of the day and night, to protect life and property, prevent crime, detect and arrest offenders, preserve the public peace, and enforce all laws and ordinances over the Police Department has jurisdiction.”

Further, the Police Department’s Manual defines acting within the “scope of official duties” as: “1.Any legal act or activity performed by a Member of the Force either on or off duty, pursuant to the duties and responsibilities of a Police Officer,” or “4. A Member of the Department [acting] in response to the direction of a Superior Officer.”

Recently, a police officer was seriously injured in a car accident that occurred approximately three (3) minutes after he drove away from his relieving point, in his own personal car, headed for home. Assuming that this police officer’s medical condition does not improve and he is never able to return to the full duties of a police officer, would he qualify for a ¾ Accidental Disability Retirement benefit?

Consider the 2004 case of a Yonkers police officer, who is also a member of the New York State Police and Fire Retirement System and therefore, subject to the same rules and regulations for qualifying for a ¾ pension. The officer was assigned to work in the property and evidence unit located on the third floor of the police building on July 16, 2001. His work duties included logging, filing and storing evidence. When he left the building to get lunch that day, he was involved in an auto accident. The Retirement System denied the application for ¾ benefits on the theory that the accident did not occur while the cop was “in service.” The officer appealed and a hearing was held before a Hearing Officer of the Retirement System, who found that the July 16, 2001 car accident “did not occur during the course of [the cop’s] duties.” The cop, still unhappy with the decision, brought an Article 78 proceeding, to review the decision of the Hearing Officer.

The Appellate Division, Third Department noted that “It is undisputed . . . that [the cop] did not receive any calls or respond to any emergency situation while on the lunch break at issue. In addition, he took his own personal vehicle and cellular telephone, instead of those owned by his employer. In light of this, and the fact that [the cop] was engaged in a personal activity rather than performing work duties at the time of the accident, we find that substantial evidence supports the [Hearing Officer’s] denial of this application on the basis that he was not in service at the time of the accident.”

Consider another case, a 2003 decision by the Appellate Division, Third Department, concerning a sergeant with the police department of the Village of Briarcliff Manor, who was injured just after his shift ended, when he was removing his personal firearm from his locker and it unexpectedly discharged. The claim for ¾ benefits was denied initially by the Retirement System and upon appeal by the Hearing Officer, who found that “the incident was not caused by and did not occur during the course of [the sergeant’s] job duties.”

The Appellate Division offered this analysis of the case: “. . . [The sergeant] testified that his replacement arrived a few minutes before 8:00 A.M., when his shift officially ended, and he briefed her of the night’s events prior to going to his locker. He testified that, while still in uniform, he went into the locker room to retrieve his personal firearm when it unexpectedly discharged at approximately 8:05 A.M. or 8:10 A.M. He indicated that he was retrieving the firearm for the purpose of taking it with him on a personal trip to New York City. Because the incident in question occurred after [the sergeant’s] tour of duty had ended and he was retrieving the weapon for purely personal reasons, substantial evidence supports [the Hearing Officers’] finding that [the sergeant] was not in service at the time he was injured.”

Then there is the oft cited 1995 case of a deputy sheriff, who was injured in a car accident while on his way home after the end of his shift. The Appellate Division, Third Department, held that the deputy sheriff was not in service at the time of the accident and was, therefore, not entitled to ¾ benefits even though the deputy was in uniform and was driving a marked sheriff’s vehicle when the accident occurred. The deputy testified at his hearing that he was on call 24 hours a day and that he “normally did not radio ‘out of service’ until he reached his home. Furthermore, on forms completed in connection with the deputy’s claim for Workers’ Compensation benefits, the deputy indicated that the accident occurred at the end of his shift; the employer completed Workers’ Compensation forms stated that “no work-related accident occurred.”

The Retirement System does not accept “being on duty 24 hours a day” as sufficient to establish being “in service” for purposes of establishing entitlement to ¾ or ½ disability benefits. Rather, for Retirement System purposes, not only must the disabling event occur during the cop’s tour of duty or while the cop is acting “within the scope of official duty,” it also cannot occur while the cop is on purely personal business, such as a meal break.

Without getting into much detail at this point, please be aware that while an accident may not qualify as being “in service” for purposes of a ¾ or ½ disability claim, it can very well be the basis for a perfectly good Workers’ Compensation claim. Please be sure to check with your PBA disability counsel for proper, accurate advice on whether an accident, though not being “in service” for Retirement System purposes, is nevertheless considered to be “within the scope of employment” for purposes of a Workers’ Compensation claim.

I am not sure this is a record to be proud of, but I think it most likely is. I was able to attend all the precinct holiday parties, along with the PBA, SOA and DAI parties. I also squeezed in the Guardians’ holiday party, as well as the Bellmore-Merrick PAL party and the LaValle party. It was wonderful to see friends, clients and colleagues; for the most part, I’m pretty sure that I followed my partner’s directive to “do no harm.”

It was particularly moving to see retired PO Frank DiVittorio at the PAL party beaming and glowing while holding his new granddaughter. Frank was the picture of pure joy, pride and happiness. That, I think, was a definitive moment during the holiday party season. I also have to mention that my colleagues, Ray and Keith LaValle, throw a terrific holiday party, which I believe has become the de facto Nassau County holiday party. If you are lucky enough to be invited, don’t miss this particular party. It is excellent.

What kind of a parent would I be if I didn’t promote my son and help his career? Jared is a tennis pro at Sportstime Syosset, an excellent facility for tennis lessons, playing tennis and having kids’ sports oriented birthday parties. If enough parties are booked, it will also benefit my youngest daughter, Jaclyn, 16, who gets to work the parties, but only as a back up. With more parties booked, maybe she will be called in to work more. Jared has nine (9) years experience as a tennis pro and is very, very highly regarded (especially by his father!). You can reach Jared at 516-364-2727 at Sportstime.

If you have any questions or concerns regarding claims for Workers’ Compensation, Accidental Disability Retirement, the 9-11 Presumption Law, Medical Review, Social Security Disability or third party negligence law suits, please do not hesitate to contact me @ mrada@fbrlaw.com, or 516-496-0400, ext. 4413. We continue to be very grateful for the support shown for the work we do by members through letters, e-mails and referrals of family members and friends.