Legal Report

In the December 2008 edition of the PBA NEWSLETTER, I asked readers whether they might be able to send me PBA cards for the years 1988 and 1989 to complete a collection of cards representing all the years we have been official PBA disability counsel. Dave Sailor, retired, was kind enough to respond and send me a card for 1988. Also, Victor Dolgo helped me out by giving me PBA cards for 1988 and 1989. Gene Markey, 1st precinct retired, sent me an email offering the cards also. William Roden of Summer Shade, KY sent me PBA cards for 1988 and 1989, with a very kind note: “Dear Mr. Rada. I am retired from April 20, 1981. You have helped the PBA in untold ways. Any time we can help you even in a small way we should and be thankful for it. Here are two PBA cards from 1988 and 1989. Thanks again. William Roden.” And when I accompanied Det. Mike Lella to his appointment with the New York State Retirement System’s medical expert for an IME, Dr. Richard Parker, Mike offered me the cards also. I learned something: I have at least five readers! Thanks very much to all of you for your kindness – very much appreciated.

Last month the Legal Report was very dark and pessimistic because I described a particularly bad day when the Appellate Division, 3rd Dept. issued 9 decisions which all denied disability retirement benefits, most of them on the basis that an “accident” had not occurred. Just to lighten the mood a little, I am now listing 13 injuries which were all considered by the Retirement System and found to be accidents for ¾ purposes.

• “Officer was driving a police car during a storm and struck a tree limb that had fallen. Officer called work next day and complained of back pain.”
• “While on duty and at work, walking toward ramp area, my right foot became entangled in a protruding coil of hose, causing me to trip and injure my back” (PANYNJ cop).
• “While on duty and at work, walking toward the side rear door of Bldg 269 I accidentally slipped on black ice causing me to fall, resulting in injury to my neck, left shoulder and additional injuries to my back” (PANYNJ cop).
• “While on duty and at work, operating an unmarked police car, I was stopped at a red light when another vehicle, hit in the rear by another car, crashed into the rear of the stopped unmarked police car, causing my injuries and disability”.
• “While on duty and at work, I responded to a working fire. Upon arriving at the fire, I saw people in the windows screaming for help. I ran out of my RMP and jumped over a 3ft picket fence. I ran 2 to 3 steps, running on cedar chips which covered a black slippery and slick plastic which I could not see. I slipped on the plastic and twisted my knee and had immediate pain”.
• “While on duty and at work, I responded to a domestic call at which the defendant struck me under the chin with an upward, forward open handed motion; the defendant also applied a steady hold and squeeze to my face, jaw and chin, resulting in my injury and disability”.
• “While on duty and at work, providing aid to a pedestrian who was struck by a car, with the car being driven through a store front plate glass window, suddenly and unexpectedly the glass fell out of the store’s window and severed 5 tendons in my right hand”.
• “While on duty and at work, driving a marked police car, I was proceeding through an intersection with the green light in my favor; the other vehicle then made a right on red turn, causing the collision between that car and the RMP, causing my injury and disability”.
• “While on duty and at work, during a VTL investigation of a tractor trailer during the Republican Convention in NYC, I fell into an uncovered manhole, not visible to me because it was dark and there was no lighting. The manhole I fell into was 1 foot in diameter and 4 ½ to 5 feet deep. I injured my left elbow and left hip. The accident happened shortly after 9:00 PM”.
• “While on duty, as a member of the motorcycle unit of Highway Patrol, I was participating in a funeral escort. While operating my motorcycle with emergency lights on, a vehicle made a left turn in front of my motorcycle and stopped his vehicle. To avoid hitting the vehicle that turned in front of me, I braked suddenly and hard, causing the motorcycle to go into a skid. The subsequent collision between my motorcycle and the other vehicle and ejection from the motorcycle resulted in my injuries and disability. The vehicle that made the left hand turn was issued a summons for failure to yield the right of way”.
• “While on duty and at work, driving a marked police car without lights or sirens on, I entered an intersection with a green light; the other vehicle failed to stop at his red light and I struck that vehicle as it entered the intersection against the light. The other driver was arrested for DWI. I injured my back”.
• “Officer while on duty working at the precinct at the desk tripped and fell over an open desk drawer. He fell and sustained a laceration to left leg; chipped bone on right knee and sprained right knee also sustained lower back pain”.
• “While on duty and at work, attempting to place a subject under arrest, he failed to comply and became violent. In my attempt to gain control over him, we both went to the ground at which point he punched, hit and kicked me until I was able to handcuff him. In this violent struggle, I injured my back, right shoulder and left hand”.

It is extremely rare for a denial of ¾ retirement benefits to reach the NYS Court of Appeals. However, on December 18, 2008, the highest court in New York State did decide an “accident” case. In the case of In the Matter of Paul G. Kenny, Appellant v. Thomas P. DiNapoli, as New York State Comptroller, Respondent, the court noted “In the context of accidental disability retirement benefits, we have defined an accident as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and we have indicated that "an injury which 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" (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 this case, the Comptroller denied the application for accidental disability retirement benefits because petitioner, who slipped on a wet ramp while exiting a restaurant, knew that the ramp was wet and therefore knew of the hazard that led to his injury before the incident occurred. In other words, the Comptroller was not persuaded that the incident involved an "unexpected event." Because the Comptroller's conclusion is supported by substantial evidence in the record, the determination was properly confirmed”. Kenny is a police officer.

As an exercise to keep you up at night self inflicting some torture, determine how each of the listed injuries falls within the definition of “accident” as cited by Court of Appeals. Keep this definition in mind when you evaluate your own injury following a mishap at work.

If you need us for assistance with claims for Workers’ Compensation, Social Security Disability, Personal Injury and Accidents, Veterans Disability (VA), Disability Retirement or 207-c issues, please call us at 516-496-0400, ext. 4403 or email at mrada@fbrlaw.com. Until the next Legal Report, stay safe out there!