Legal Report

In a recent filing for ¾ disability benefits, a cop indicated on his application that he was injured when, "While on duty and at work, while walking up the steps, back inside steps of the precinct located just inside the door leading to the outside, I slipped on sand that was on the steps and fell, hitting my left knee, causing my injury". The application was filed on October 9, 2007.

The Retirement System denied the claim by determination dated April 3, 2008, stating that "the incident alleged to have occurred on 11/16/2005 does not constitute an 'accident' as this term is used in Section 363 of the Retirement and Social Security Law". In determining the rationale for the Retirement System's decision in this case, you need to know that on the PDCN 206, the sergeant completing the form wrote, "PO suffered injury to left knee after tripping on stair and striking it on riser". On the PO's Incident/Accident Statement, the PO wrote, "At 0800 hours on 11/16/2005 I was walking up the back stairs of the precinct. As I reached the mid level of the stairs I tripped and fell forward, hitting my left knee on the metal steps. As I attempted to get up I felt a pain in my knee".

It is extremely important to identify the cause of a trip and fall on the very first incident/accident report that is written as the Retirement System gives this report the most weight. Where a disability application indicates a reason for a fall that does not appear on the original accident report, the Retirement System invariably gives greater weight to the reports that were made closest in time to the accident.

In another recent filing for ¾ disability benefits, the cop's application describes the accident as follows: "While on duty and at work, responding to an alarm call at a private residence, I was inspecting the residence to make sure it was secure. I checked the front door, having come up the steps to the stoop, using the steps directly in front of the door. After determining that the front door was secure, I turned to walk down the stairs, using the steps closest to the rear yard to inspect the rear of the residence, when I suddenly slipped on ice not visible to me and fell, resulting in my injuries and disability". This application was filed on January 18, 2008. The Retirement System issued a determination in this case on April 18, 2008, finding that the injury "does not constitute an 'accident' as this term is used in Section 363 of the Retirement and Social Security Law". Denials based on no accident do not take long because the medical evidence is not developed or evaluated. The applicant is not sent for a medical examination with a Retirement System selected doctor. In this case, the no accident denial took only three months. It would be wonderful if medical evaluation cases also took only three months. By way of comparison, the New York City Employees' Retirement System manages to decide its medical cases in three months, and sometimes even less.

The Retirement System has made it progressively more difficult to show an "accident" so as to qualify for ¾ disability benefits. Consider the case of Detective Kenny, who was employed by the City of Rye Police Department (Matter of Kenny v. DiNapoli, 2008 NY Slip Op 03563, Decided April 24, 2008, Appellate Division, Third Department).

Detective Kenny jarred his left knee in May 2003, when he was exiting a local deli with two of his coworkers. The Retirement System denied Kenny's application for ¾ on the grounds that the May 2003 event did not constitute an accident within the meaning of Retirement and Social Security Law Sec. 363. Det. Kenny appealed the initial determination of the Retirement System and had a hearing. The Hearing Officer also found that the manner in which Kenny was injured did not amount to an accident and affirmed the initial denial.

In confirming the denial on the basis of no accident, the Appellate Division writes, "The case law makes clear that in order to qualify as an accident within the meaning of Retirement and Social Security Law Sec. 363, the event precipitating the injury must have been a sudden, fortuitous mischance that is unexpected, out of the ordinary and injurious in impact. Hence, 'an injury that occurs without an unexpected event, as the result of activity undertaken in the performance of ordinary employment duties . . . is not an accidental injury'.

At his hearing, Det. Kenny testified that as he exited the deli via a sloping ramp that he had traversed on many prior occasions, he slipped, then caught himself and jarred his left knee. The court notes that, "Although [Det. Kenny] makes much of the fact that he previously did not have occasion to use the ramp on a wet, rainy day, he nevertheless testified that he knew it was raining before he arrived at the deli and recognized that the ground was still wet when he and his coworkers finished their lunch, exited the deli and started to walk to their vehicle. In our view, the hazard posed by a wet, sloping ramp hardly may be characterized as unexpected or out of the ordinary; thus, [the Retirement System] rationally concluded that [Det. Kenny's] injury did not result from an accident".

If there is no hazard posed by a wet, sloping ramp on a rainy day, is there a hazard posed by a slippery driveway on a day that it is snowing? What about slipping on ice and falling off a stoop at a private house? Would it make any difference if the cop had never been to that house before? Is there any hazard posed to a cop chasing a suspect by wet, slippery pavers around a pool? What if the cop had never been there before?

It is clear from the decisions being made that the Retirement System is interpreting the term "accident" progressively more narrowly and more strictly, causing more and more applicants to be ineligible for ¾, but nevertheless entitled to a ½ Performance of Duty disability pension. While we are on the topic of interpretations made by the Retirement System, I am involved in a situation with a client where the definition of a "year" is crucial. Do you know the definition of a "year"? You may be surprised by how the Retirement System is handling my case.

As you know, it is crucial for an applicant to file a disability application BEFORE "being continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits was filed with the Comptroller". If the application is filed after the applicant has been on restricted duty for two years, the Retirement System will make its decision on whether or not the cop is disabled on the basis of the restricted duty assignment. It is very difficult to prove that you cannot do restricted duty if you are working RA successfully.

When is an application timely filed within the two year time frame? Consider the facts of this pending claim: the cop was injured in the line of duty on March 13, 2002. Following the accident, the cop was out of work for about two weeks and then returned to work on RA for a few weeks. The cop then returned to work full duty and had several periods of sick leave, but returned to full duty after each period of sick leave until April 8, 2004, when the cop again went on RA, where he remained. On April 7, 2006, the Police Department filed applications for ¾ and ½ disability retirement on behalf of the cop. Although it is now more than two years since the applications have been filed, the Retirement System has yet to make an initial determination. The cop already saw the state doctor who wrote a medical narrative report to the Retirement System dated October 22, 2007 and date stamped received by the Retirement System on December 06, 2007. The state doctor advised the Retirement System that the cop "is left with low back pain and it is my impression that the patient's low back condition is causally related to the accident that occurred on the job. He is totally and permanent[ly] disabled to perform the duties required of a police officer. He can only perform sedentary type of work. It is my opinion that no further surgical intervention will completely alleviate his low back pain, which is expected to be permanent".

This police officer has not yet received a favorable determination from the Retirement System because the Retirement System is considering using a restricted duty assignment to evaluate disability. I made several calls to Ms. Kathy Nowak, Director of Disability Processing of the Retirement System. She explained that this is a case of first impression for the Retirement System in that, on the basis of her calculations, the applications were filed on exactly the last day of the two year period. According to my calculations, I told Ms. Nowak that the applications were filed before the expiration of the two year window since the cop began restricted assignment on April 8, 2004 and the applications were filed on April 7, 2006 - beating the two year limitation period by one day! To my utter amazement, Ms. Nowak informed me that the Retirement System calculates a year as having 12 months, 30 days to the month. This means a Retirement System year has 360 days! I have not yet been able to locate where the Retirement System has its definition of a year written. When found, I will advise you.

Please be extra cautious about filing your disability applications to avoid the Retirement System being able to use a restricted duty assignment to decide your claim. File before you have been on RA for two years and beware of overtime. If you do more than 100 hours OT while on RA in any 12 month period after your accident and before you file, the RS will use a restricted duty assignment standard to evaluate your entitlement to either ¾ or ½ disability retirement benefits. Remember also that any time on sick leave following being place on RA does count towards calculating the two year time period.

Have a safe and wonderful summer! I hope you are able to travel to exciting, beautiful, exotic and adventurous places. In the event we can assist you with any legal matters, please contact me or my extremely able paralegal, Carol Venezia, at 516-496-0400, ext 4413.