Legal Report

On many prior occasions I have addressed the topic of what constitutes an “accident” so as to qualify for a ¾ (accidental disability) retirement pension. I am reviewing this issue again in light of a truly remarkable determination recently received from the Retirement System.

Section 363 of the Retirement and Social Security Law (RSSL) provides that “A member shall be entitled to an accidental disability retirement allowance if, at the time application therefor is filed, he is: 1. Physically or mentally incapacitated for performance of duty as the natural and proximate result of an ACCIDENT (our emphasis) 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.” Pursuant to this section, my client submitted an application for ¾ accidental disability retirement benefits on February 13, 2007. The application indicated that permanent disability was due to “impairment of the heart caused by accident of 6-10-2006.”

The accident was described as follows: “While on duty and at work, I was aboard Marine 1, when a 40’ sailboat broke loose from its mooring and washed up on Sea Cliff Beach. My partner and I took the sailboat into tow and while attempting to secure it to a mooring, the high seas, heavy winds and wind gusts blew the sailboat towards Marine 1. I was at the helm on the flybridge and I had to respond to the stern to prevent the sailboat from hitting my partner and causing damage to Marine 1. I was attempting to push against the sailboat and keep it away from marine 1 when I suffered chest pain and a heart attack.”

By determination dated July 19, 2007, the Retirement System notified the applicant that “It is hereby found that the incident alleged to have occurred on 06/10/06 does not constitute an ‘accident’ as this term is used in Section 363 of the Retirement and social Security Law.”

The question of whether a line of duty injury qualifies as an “accident” is probably the most litigated issue in this field of law. All the cases involving lawsuits against the New York State Comptroller on this issue are decided by the Appellate division, Third Department. A review of the cases will show that only an extremely small number of applicants manage to win. Consider the case of a warrant and transfer officer, who is subject to the very same rules, regulations and law as is a Nassau County Police Officer when applying for disability retirement.

In this case, the claimant applied for ¾ accidental disability retirement benefits after allegedly sustaining a back injury while lifting his carry-on luggage into the overhead compartment on a plane en route to return a prisoner to New York. The application was denied by the Retirement System on the ground that the applicant did not suffer an “accident” within the meaning of the RSSL. The applicant went through an administrative appeal with a Judicial Hearing Officer, an employee of the Retirement System, who upheld the denial. The applicant then filed an Article 78 action to review the Retirement System’s decision.

The Appellate Division upheld the denial stating that “The tem ‘accident’ . . . has been judicially construed as a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.’ As such, an injury that occurs without an unexpected event, as the result of activity undertaken in the performance of ordinary employment duties (considered in view of the particular employment in question) (emphasis ours) is not an accidental injury within the purview” of the RSSL. “In view of the fact that claimant was often required to travel by airplane in the performance of his employment duties, the event that precipitated his injuries cannot be considered to have been out of the ordinary.”

Using the analysis provided by the court, should the police officer who was pushing the sailboat in high seas and heavy winds prevail on appeal? Should it be found to be an “accident”? What about a police officer on patrol who spots a car parked on a hill suddenly begin to roll backwards, on a long hill with a busy intersection at the bottom of the hill? If the police officer runs and jumps behind the rolling car and attempts to stop it from rolling back further and then has chest pain and a heart attack, would this event qualify as an “accident”? Has he been injured in the performance of ordinary police duties?

How is the police officer in my sailboat scenario able to apply for a ¾ accidental disability pension based on an impairment of the heart when Nassau County police officers, along with all police officers who are members of NYSERS, do not have a ¾ heart bill? Police members of the Retirement System can qualify for a heart related disability, relying on a presumption that the disabling heart condition “was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.” However, this benefit is pursuant to Section 363-a.2. of the RSSL and pays 50% of final average salary (tax free).

The police officer who suffered a heart attack while pushing the sailboat did NOT apply pursuant to the heart impairment presumption set forth in Section 363-a.2. Rather, he applied for a ¾ accidental disability pension. In order to qualify, he has the burden of proving all the elements of that section, the same as any applicant must do for any injury: accident, permanent disability and causal relationship.

The Nassau County Police Department filed an application for performance of duty (POD) disability (50%) on behalf of the police officer with the Retirement System, which it has the right to do. The Retirement System will process the medical evidence on the POD application. Even if the POD application is approved before the accidental issue is resolved, the appeal can move forward. If, ultimately, the police officer is successful with the ¾ accidental disability claim, then the 50 %POD retirement benefit will be converted to a ¾ disability benefit.

If you have any questions concerning disability retirement, Workers’ Compensation, Social Security disability benefits or personal injury lawsuits involving any injury cased by someone else’s negligence, please do not hesitate to call me or email me at 516-496-0400, ext. 4413, or mrada@fbrlaw.com.