Legal Report

If a police officer is injured in the line of duty and as a result becomes permanently disabled and unable to perform the duties of a police officer, whether he qualifies for a ¾ accidental disability benefit or a ½ performance of duty benefit, depends on how he was injured. Was the injury the result of an “accident” as the Retirement System defines this term, or an “incident”? If it was an “incident” then no matter how serious the injury, the cop will qualify only for the ½ performance of duty benefit, but Workers’ Compensation benefits may be payable in addition to this benefit.

Just how difficult is it to show that the injury stems from an “accident”? Just how narrowly are the Retirement System and Appellate Division 3rd Dept. defining the term “accident”? The recent case of Melendez v. New York State Comptroller, decided on September 18, 2008, provides some guidance.

Melendez is a police officer who was working for the Village of Freeport Police Department when he was injured in February 2004 after he tripped over a snow bank while chasing two suspects. Officer Melendez was also injured in October 2004, again while chasing two individuals, this time while scaling a fence. He climbed to the top of the fence and, as he tried to jump to the ground, his foot hit the top of an unseen second fence built adjacent to the fence he had climbed, causing him to fall onto a concrete patio. He suffered very serious injuries: two broken elbows and he also injured his back. After it became apparent that he would not be able to return to the full duties of a police officer, Officer Melendez filed an application for ¾ accidental disability retirement benefits. The Retirement System denied the application for ¾ accidental disability retirement benefits on the ground that the two events which caused Melendez’s injuries were not accidents within the meaning of the Retirement and Social Security law Sec. 363. Melendez then requested a hearing and redetermination, after which a Hearing Officer also denied the application on the same basis, i.e. that the trip over the snow bank and the fall from the fence were not accidents. Melendez then filed a CPLR Article 78 action to review the determination of the Comptroller denying his ¾ application.

The Appellate Division 3rd Department, not surprisingly but very unfortunately, agreed with the Comptroller and found that both events were not accidents. The Court writes, “Petitioner [Melendez] must prove that an injury was accidental and the Comptroller’s determination with regard to this issue will be upheld if supported by substantial evidence (citations omitted). ‘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) is not an accidental injury’. Clearly, pursuit of suspects is an ordinary employment duty of a police officer. Moreover, [Melendez] testified that such pursuits often involved him having to climb fences. Inasmuch as [Melendez’s] tripping over a snow bank and falling from a fence while chasing suspects are inherent risks of his employment and not the result of unexpected events, even without seeing the actual hazard that caused him to fall, the Comptroller’s decision is supported by substantial evidence and will not be disturbed”.

In prior Legal Reports I have quoted decisions of the Appellate Division that have rationalized the finding of no “accident” on this basis: “The case law makes clear that in order to qualify as an accident within the meaning of Retirement and Social Security Law § 363, the event precipitating the injury must have been a sudden, fortuitous mischance that is unexpected, out of the ordinary and injurious in impact (see Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]”. In the Melendez decision, the Court is moving away from the Lichtenstein rationale and adopting a reasoning that is much more severe and will result in many, many more denials of no “accident”.

I was in consultation with a police officer after the Melendez decision came down, which was extremely relevant as my potential client also suffered his injury when he slipped and fell on ice/snow. After reading Melendez he asked me, “So who will qualify for ¾, the cop who is injured when the ceiling falls down on top of him”? We did handle a claim for a cop who was injured when a ceiling tile fell and hit the cop on the head/neck. The cop was awarded a ¾ accidental disability retirement benefit.

AIf you have any questions, comments or criticisms, please do not hesitate to let me know. Also, if you need to discuss any claim for Workers’ Compensation, Social Security Disability, Accidental Disability Retirement, Performance of Duty Disability Retirement, Veterans’ Disability Benefits or personal injury matters, please contact me at 516-496-0400, ext. 4413 or at mrada@fbrlaw.com.

Enjoy your Thanksgiving holiday!