Legal Report

Police Officer Aidan David Rogello is a very active cop. He has been cited frequently for excellent police work, has made a great many collars and has been honored several times by the PBA as "Cop of the Month." He has also been awarded "Cop of the Year." He has mixed it up with bad guys frequently and as a result, he was severely injured and could no longer do the full duties of a police officer. He filed for accidental disability retirement (3/4). Much to his dismay, his claim was denied on the basis that the manner in which he was injured was not an "accident" within the meaning of the law. All of Officer Rogello's injuries were a result of using physical force in the course of placing perps under arrest that violently resisted arrest.

The first injury occurred when Rogello, while on duty and at work, attempted to arrest an emotionally disturbed lady, who crouched down and then suddenly and without warning, sprang up and hit into him, causing him to hit into a wall of lockers and strike a bench with his left leg.

Rogello was injured the second time when while on duty and at work, he made a DWI stop. He approached the subject's vehicle and requested his driver's license, registration and insurance card, at which time Rogello smelled a strong odor of alcohol on the subject's breath. The subject did not have any of his identification and claimed it was not his car. Rogello asked him to write his name on a piece of papers which he did, and Rogello later learned the name the subject wrote was not his correct name. As Rogello was sitting in the police car, after administering the field sobriety test and portable breathalyzer, he called the desk officer of the precinct to obtain authorization to impound the subject's car. He also requested assistance to respond to his location. Rogello then saw the subject begin to run away from the back of his car into a wooded, grassy area. Rogello got out of the police car and chased the subject. Rogello caught up with him and dragged him back to the police car, where he began to fight and struggle again. During this struggle, Rogello fell and hit his left shoulder on the road. The subject was able to get away from Rogello at this point and he ran away again. Rogello chased him and caught up with him and they were standing face to face; suddenly and without warning, the subject lunged at Rogello and pushed him very hard in his chest, causing Rogello's left knee to give way. Rogello fell to the ground and the subject ran away again. Rogello, who was now injured, did his best to get to the RMP by hopping to it. He could not run or walk because of the injury to his knee. He had to hold up his left leg and hop on his right foot to the police car. Other police officers arrived to assist Rogello and were able to arrest the subject, who was charged and convicted of assault on Police Officer Rogello. The assault on Rogello resulted in injury to his left knee, left shoulder and right foot, resulting in his disability.

Officer Rogello's most recent injury happened when, while he was on duty and at work, in the process of administering a breath test, he advised the subject that he would not be able to leave police headquarters because his BAC was .17. The subject became enraged, violent and combative – he began to fight and wrestle with Officer Rogello in the testing area. With the assistance of other police officers, the subject was finally brought under control and he was taken to the waiting bench. At the waiting bench, the subject began to bang his head against the wall, screaming that he wanted to kill himself. Officer Rogello assisted the arresting officer to attempt to regain control over the subject. The subject kicked Rogello in the left knee causing the left knee to very painfully and forcefully twist. Rogello fell into the waiting bench and onto the floor striking his left knee on the floor, causing yet further pain to his left knee, resulting in injury and disability to Rogello's left knee.

Officer Rogello was injured when he mixed it up with some very bad guys. Not every injury resulting from a use of force will be considered an "accident" by the Retirement System. In these types of events, the case of Matter of Barbara Ammann v. New York State Comptroller (2004 NY Slip Op 09352) is very instructive. Ammann was a court officer (the same rules, regulations and definitions apply for court officers and Nassau County cops) who applied for ¾ after she was injured during an altercation with an unruly criminal defendant. The application was denied on the basis of no "accident" and she appealed. Following a hearing, the Judicial Hearing Officer determined that the event was not an "accident" and affirmed the Comptroller's determination. She then brought an Article 78 action, which was decided by the Appellate Division, Third Department.

The court held that, "The record reflects that the Comptroller draws a distinction between injuries received by a court officer [and a Nassau County cop] as the result of an ASSAULT and injuries received as the result of an attempt to RESTRAIN a disruptive individual while performing the duties of a court officer [or a Nassau County cop]. According to the Comptroller, the former constitutes a compensable accident, while the latter constitutes a risk inherent in the course of the court officer's [or the employment of a Nassau County cop] (emphasis ours). So, if the Retirement System determines there was no assault on the cop, and the injury results from merely restraining the bad guy, there is no ¾ accident.

In Ammann’s case, the court also noted, “To be sure, there is evidence in the record from which one could conclude that [the court officer] was injured during the course of an assault. There mere presence of such proof, however, simply does not negate the Comptroller’s finding that [the court officer] was injured while restraining a combative criminal defendant. The record as a whole plainly contains evidence to support the Comptroller’s conclusion, including [the court officer’s] description of the underlying incident both on her application for benefits and at the administrative hearing, and, as such, the underlying determination will not be disturbed.”

Police Officer Rogello’s attorney wrote to the Retirement System protesting the denial on the basis of the Ammann decision, pointing out that Rogello’s injuries were the result of assaults, hoping to avoid the delay and expense of an appeal. The Retirement System did agree that the Rogello’s last injury was an assault and voided its denial that it was not an “accident.” However, Rogello will have to prosecute his appeal and go through the lengthy and expensive appeals process because the Retirement System did not budge on the other two injuries.

If you need help with claims for accidental disability, performance of duty disability, Workers’ Compensation (please note there is a new WC law in effect), World Trade Center disability, Medical Review, Social Security Disability or personal injury lawsuits, please contact me at 516-496-0400, ext. 4413, or at mrada@fbrlaw.com. The Legal Report for the months of May and June did not appear in the Newsletter. However, they are available for you to read on the firm’s website, www.fbrlaw.com. (Police Officer Aidan David Rogello is a fictitious character, and any resemblance to any member of the Nassau County Police Department is entirely coincidental and fortuitous).