Legal Report

Whether you call it "Thursday Bloody Thursday" or "Thursday the 13th Massacre", either description is accurate. On Thursday, November 13, 2008, the Appellate Division, 3rd Department decided nine cases requesting review of denials by the New York State Retirement System of claims for disability retirement benefits. In ALL the cases the applicants lost and the Retirement System won! It is getting so insanely difficult to obtain a ¾ disability retirement pension that Assemblyman Peter Abbate has sponsored a bill to amend the Retirement and Social Security law, which would do away with the requirement that an "accident" is needed to qualify for a ¾ disability retirement pension. As Abbate accurately points out, "... the last few years have seen a steady stream of determinations from the [Retirement System] denying applications for the ¾ benefit as a result of the retirement system's exploitation of the ambiguity inherent in the term ‘accident' as it is used in the Retirement and Social Security law". According to Abbate, the legislation that he is sponsoring would fix the problem by making all police officers who are disabled as a result of the performance of their duties eligible for the ¾ disability benefit, regardless of whether an "accident" is involved. Assemblyman Abbate's suggested legislation is long, long overdue.

I am calling it "Black Thursday" because of the slaughter that applicants suffered on that day. In one of the cases, a police sergeant employed by the PANYNJ, investigated a radiation alarm located within the Lincoln Tunnel. He then went up a five-step stairway to inform his supervisor of his findings. Upon descending the stairway, he slipped on the second step, fell down the stairs and was injured. The cop's application for ¾ disability benefits was denied on the basis that the incident in question did not constitute an accident within the meaning of the Retirement and Social Security Law. The cop requested an appeal and following the hearing, the Hearing Officer affirmed the denial.

In its decision the court noted that "... an injury is considered accidental under the Retirement and Social Security Law if it results from a "'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'". Thus, "'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'" Further, the cop bears the burden of proving that such injury was accidental and the Comptroller's determination as to the cause of the injury will be upheld so long as it is supported by substantial evidence

Here the sergeant testified, consistent with the incident report, that while descending the stairs, a function within his ordinary employment duties, he "just lost [his] footing and fell." Although the police sergeant testified that he subsequently learned that the steps were uneven, his testimony failed to establish that any purported defect in the steps caused him to fall. Further, inasmuch as the cop testified that he had traversed the stairway in question on prior occasions and had ascended those same stairs only moments prior to the fall, the Comptroller could rationally conclude that the condition of the steps was not unexpected. The court held that substantial evidence supported the determination that the sergeant's fall was the result of his own misstep, rather than a sudden or unexpected event, notwithstanding the presence of evidence that could have supported a conclusion that an accident had happened.

In another "Black Thursday" decision, the court upheld the Retirement System's denial of accidental disability retirement benefits to a State Trooper who suffered injuries to his neck, back and right knee, after his RMP was struck in the rear while he was parked. The trooper's application was initially denied on the basis that he was not permanently disabled for the performance of his duties; he then requested a hearing.

In support of his claim that he was permanently disabled for the performance of his duties, the trooper presented his medical records as evidence of his incapacitation, which included reports from his treating physician stating that he was unable to perform all the duties of a State Trooper because of "disc herniation in his back and neck". The Retirement System presented the testimony of an independent medical examiner who testified that based on his examination and review of the medical records, the State Trooper was not permanently disabled and "many of his symptoms were fictitious rather than anatomical".

In upholding the decision of the Retirement System, the court's rationale was that "[T]he Comptroller is accorded the exclusive authority to weigh conflicting medical evidence and credit one medical expert's opinion over another. As the independent medical examiner provided an "articulated, rational and fact-based opinion, founded upon a physical examination and review of the relevant medical reports and records, the Comptroller's determination is supported by substantial evidence and we will not disturb it, despite evidence in the record which might support a contrary conclusion".

Three-quarter disability benefits were also denied to a Hempstead cop on the basis that he was not injured as the result of an "accident". The cop was first injured in December 2002 when he was in the process of apprehending a perp who was running from a stolen car. In April 2003, the cop was injured again when apprehending a suspect, when the cop grabbed her as she leapt out of a window and the two fell to the ground amid construction debris. The cop was denied initially and again on appeal on the grounds that his injuries were not the result of "accidents".

In its decision the court notes that "[The cop] bears the burden of proving entitlement to benefits and the Comptroller's decision will be upheld if supported by substantial evidence. The report from [the cop's] December 2002 incident stated that his injury occurred as he fell to the ground attempting to gain control over a suspect who was resisting arrest. Similarly, the report from his April 2003 incident stated that [the cop] fractured his hand as a result of the suspect's resistance. [The cop] testified during the hearing that both reports were prepared on his behalf from information that he had supplied, and notably absent from both reports was any reference to [the cop] slipping on ice during the first incident, or slipping on aluminum siding during the second incident, explanations which he proffered at the hearing. Inasmuch as [the cop's] job duties included ‘making arrests, by forceful means if necessary,' we find that the Comptroller's determination that [the cop's] injuries were not the result of an accident was supported by substantial evidence. Nor do we find the decision to credit the reports over [the cop's] testimony to be error, inasmuch as such inconsistency presented a credibility issue to be resolved by the Comptroller."

In another "Thursday the 13th Massacre" case, a PANYNJ police officer injured his knee at JFK International Airport while helping to set up a training exercise in a garage when he stepped backwards and caught his foot in a sewer grate. He was denied ¾ benefits on the basis that an "accident" had not occurred. The court noted that the cop had testified at his hearing that he was aware on the day of his injury that there was a sewer grate located on the garage floor where he was stepping but that the grate had been covered with a piece of plywood for several years. He further testified that he had not checked behind him before stepping backwards, so he did not know that the plywood had been taken off the grate. According to the court, "Insofar as the injury occurred during the performance of [the cop's] ordinary duties and ‘the hazard presented was one that [the cop] could have reasonably anticipated, even if he did not actually see it until after [sustaining his injury]', the Comptroller's determination is supported by substantial evidence and we will not disturb it."

Rounding out the denials issued by the Appellate Division on Thursday, November 13, 2008, were the cases of two police officers and a firefighter. One of the cops was a City of Yonkers 30-year veteran police officer who was injured when he slipped on an exposed electrical cord placed next to a conduit. The court found this not to be an "accident" based on the fact that the cop had traversed the path between his desk and the outlet 10 or 20 times before he stepped on the cord and fell. It was held that the cop was aware of both the heater and the electrical cord that ran across the open area next to the cop's desk and therefore the event could not constitute an "accident". In another denial, yet another PANYNJ cop slipped and fell on snow and ice that had accumulated on a wooden plank that had been laid down between the sidewalk and street in front of his command post. In finding the event was not an "accident", the court noted that the cop testified at his hearing that he had crossed the wooden plank many times during his shift and that up until the time he fell, the plank was clear of snow and ice. He further testified that no snow had fallen that night and he did not see any dangerous condition on the plank until after he fell and felt black ice underneath him. On the day of the injury, the cop filled out an injury report which sated that he "slipped and fell on snow and ice which was covering [the] plywood" and that "proper snow removal" was necessary to prevent a reoccurrence of the incident. According to the court, "Given that [the cop's] written statement characterized the plank as being covered with snow and ice, with snow removal being necessary to prevent a reoccurrence, the Comptroller's conclusion, that the condition of the plank was a hazard he should have anticipated and his fall, therefore, did not result from an unexpected event constituting an accidental injury, is supported by substantial evidence and will not be disturbed". The last case involves a veteran firefighter who slipped and fell on ice that formed while he was fighting a fire. The court held this was not an "accident" because "an incident does not qualify as an accident justifying the award of ¾ disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties".

Thursday, November 13, 2008 was a terrible day not only for those who were denied their applications for ¾ disability benefits, but for future applicants. Until we get the legislative fix that Assemblyman Peter Abbate is fighting for, many, many more deserving applicants will be denied ¾ disability benefits. By continuing to narrow the definition of "accident," the Retirement System is undermining the intent of the legislature and making it extremely difficult to get a ¾ disability pension.

Assemblyman Peter Abbate, Jr. represents District 49, consisting of the Brooklyn neighborhoods of Borough Park, Bath Beach, Dyker Heights and Bensonhurst. We should do everything we can to support him. He is a real friend of law enforcement and deserves everything we can do for him. Let your friends and relatives in his district know how much you value a vote for Peter Abbate.

On behalf of the entire law firm, I wish you, your family and friends a happy, healthy and prosperous New Year!