Legal Report

In conversations with a judge at a recent hearing and during a consultation with a client about her case, it was obvious to me that there is still some uncertainty about the difference between accidental disability retirement benefits (75%) and performance of duty disability benefits (50%).

At a recent disability appeal hearing, applications for accidental disability retirement benefits and for performance of duty disability benefits had been filed by the employer. I suppose the employer filed both applications because of its uncertainty as to whether the cause of the injury was an “accident.” As it turned out, the Retirement System found that the injury was the result of an “accident.” The case then proceeded on the question of whether the cop was medically disabled, that is, was he permanently incapacitated for the performance of the full duties of a police officer. The Retirement System found that the cop was not permanently disabled and denied the claim. The appeal proceeded on the question of the extent of the cop’s disability.

It should be pointed out that over the course of years I have been asked by clients if there is any disadvantage to filing for accidental disability and performance of duty disability benefits at the same time. Some people have expressed the opinion that filing for both benefits is a hint to the Retirement System that there is a good chance this event is not an accident and puts the applicant at a psychological disadvantage in that the applicant himself is uncertain whether he qualifies for the tougher definition of “accident.”

According to the rules of the New York State and Local Retirement System, an applicant can simultaneously file applications for all benefits to which he might be entitled. So, for example, an applicant can file applications at the same time for accidental disability, performance of duty disability, ordinary disability and service retirement. In order to qualify for accidental disability benefits, the injury must be the result of an “accident,” and as readers of this Legal Report well know, not every line of duty event will be an accident within the meaning of the law. Case law has carved out a definition of “accident,” a very, very narrow, strict and terribly difficult definition which boils down to meaning a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” The injury must be “unrelated to the ordinary risks of employment” of a police officer; it must not be an “inherent risk” of the job. So, when a cop lifts a trundle and blows out his back or his shoulder, this is not an accident. Likewise, if a cop is running after a perp and takes a bad step resulting in blowing out his knee, this is not an accident. And, if a cop slams his shoulder against a door to break it open, this also is not an accident. Compare this to a situation where a door is busted open from the inside by the bad guy, crashing into the cop’s shoulder; this would be an accident.

A performance of duty disability benefit pays 50% of final average salary when a cop is permanently disabled “as the natural and proximate result of a disability not caused by his own willful negligence sustained in such service.” There is no requirement at all that the mechanism of the injury constitute an “accident.” All this is required is that there was an injury and it happened in the line of duty. Lifting a stretcher and blowing our your back and becoming disabled will quality for a performance of duty benefit.

It is interesting to note that in the case pending before the judge who inquired as to why applications for both accidental disability and performance of duty disability were filed, the applications were filed by the employer. The cop was injured when, “While on duty and at work, driving a police car during a storm, I ran into a tree limb that suddenly and unexpectedly fell in front of the police car.”

Clearly, the employer demonstrated unfamiliarity with the law and was being markedly over cautious by filing both applications in this case, when the event is clearly an accident. Nevertheless, confronted with both applications, the Retirement System got this one right (how could they not?) and found it to be an accident. The applicant was not prejudiced by the employer filing a needless performance of duty disability application.

At the hearing, as exhibits were being introduced into evidence, the judge asked me why we were filing these two applications, as they provided for the same monetary benefit. Perhaps the judge was confused because there are OTHER performance of duty benefits which DO provide for a ¾ disability pension. For example, if a correction officer is injured and becomes disabled “as the natural and proximate result of an act of any inmate,” he could qualify for a ¾ disability pension. Similarly, if a NYC EMT or advanced EMT becomes disabled because of an on the job injury, he can qualify for a ¾ disability pension. Please note that neither the correction officer nor the NYC EMT has to show an “accident” in order to qualify for a ¾ tax-free disability pension. Compare this with an injury a Nassau County cop suffers when placing an uncooperative bad guy under arrest and injures his back – this might NOT qualify as an accident. Or, compare a Nassau County cop who lifts a trundle and injures his back – this also would NOT be an accident, while it would be for the NYC EMT. This is something to think about.

In the other situation, my client retained me and I filed an application on her behalf for ¾, an application called “accidental disability retirement.”  One day she called me very, very concerned because one of her colleagues in her precinct said to her, “Why did Rada file an accidental disability application when you were injured in the line of duty? He should have filed a performance of duty application.” I explained the difference and she was then OK. Remember, it is the accidental disability application that gets you ¾’s. It is an “accident” that separates ¾ from ½. This is the real math.

In a prior article, I had a guest contributor, Anthony Parisi, Esq. who provided information in the area of matrimonial and family law that I thought might be of interest. Here is Mr. Parisi’s second installment.

In my prior article, I discussed how child support was calculated and what the support was intended to cover. In this Legal Report, I focus on what happens once an order is in effect and there is a change in either the custodial or non-custodial parent’s income, an increase in the needs of the child or a change in circumstances.

An application to reduce child support is called a downward modification, while an application to increase child support is called an upward modification.

Many officers work toward leaving the job after serving twenty years. What happens most often is that an officer will retire from the Police Department with the idea he will be able to reduce his support obligation since he is now retired.

Unfortunately, as many officers learn, the court will hold them responsible for the same obligation, notwithstanding the fact that they are retired and no longer earning the same amount which the support order was based upon.

Courts recognize the fact that an obligor very often intentionally reduces his earnings in an attempt to avoid paying child support. The Court will look to what the person has made or is capable of earning and find the obligor responsible for that amount.

The rationale for the court holding a parent responsible, despite the fact (s)he retired, is that while a parent is entitled to change his or her employment, the child(ren) should not have to experience a change in their standard of living, due to a parent changing jobs.

If a person loses his job as a result of something he did, such as committing a criminal act, loss of a license, incarceration or merely retiring, the court will deny a downward modification. As an example, suppose an attorney is convicted of a crime and loses his or her license to practice law. The court may very well hold him accountable for his actions and require him to continue to pay the amount previously set.

If a person makes an application for a downward modification, based upon a change in employment, (s)he must be prepared to demonstrate that (s)he has made a diligent effort to locate similar employment or one with similar earnings.

For obvious reasons, the court will not accept a mere statement that “I cannot find a job.” The court will require a showing that the person has made a diligent search for jobs, by a detailed description of the job search, such as interviews that were held, resumes and applications that were sent out, the dates and times of any interviews or mailing of the applications and resumes, as well as the result of any return calls, offers and anything else that is relevant to the job search.

Once it is determined that the job cannot be replaced and that the loss of the job was not the fault of the obligor, the court will entertain a downward modification.

A downward modification will also be proper in the case of a child reaching the age of majority (21) or emancipation. If a party enters into an agreement (s)he should make sure that the support will terminate upon the child being emancipated. A child will be considered to be emancipated if the child marries, enters into military service, or is employed full time. If a child voluntarily leaves home without good cause and without the consent and against the will of the custodial parent, the child may be deemed to be emancipated.

A question that is often asked is what happens if the child moves in with the obligor? The court will as a general rule entertain an application for a downward modification. However, one should be very careful when entering into an agreement and make sure that a provision be included to terminate the child support upon a change in residence of the child to the obligor.

One of the most frequent questions is what happens when the non-custodial parent (NCP) is denied visitation? Can the NCP stop paying support? The answer is no. Visitation and child support are not dependent on each other. If a parent is being denied visitation the proper action is to bring a petition for a violation of the visitation order, not to withhold support. However, if the custodial parent has moved out of state or has done something to prevent the custodial parent from visiting with the child, the court may suspend any maintenance to the custodial parent and may also entertain an application to suspend the support.

There are times when a child will “abandon” the NCP and refuse to have anything to do with him or her. The child may refuse to visit with the NCP or refuse to take the NCP’s last name. If this is determined to be the case, the court may entertain an application to suspend the support payments. One should be aware that if it is the actions of the NCP that are the cause of the child’s reluctance to have visitation, the court will in all likelihood deny an application to suspend the support. Such would be the case where the child is constantly berated during visits, ignored or shown a lack of concern by the NCP.

Another question that often arises is what happens when a parent is not paying child support? Can a custodial parent then withhold visitation? The answer is no. The NCP is still entitled to visitation. The proper action is to bring an action for a violation of the support order, not to deny the visitation.

If you need to reach me regarding any of the matters discussed in the Legal Report, you can call me at 516-496-0400, ext 4403 or at mrada@fbrlaw.com. You can reach Mr. Parisi at the same telephone number or e-mail address. My extremely able paralegal, Carol Venezia, will be happy to set up appointments.