Legal Report

Based on a review of the accidental disability retirement (¾).cases the firm has handled, it appears that a great majority of the cases involve slips, trips and falls as the causes of injury. So, how likely is it that you will be awarded a ¾ disability pension if you suffer a career ending injury as the result of a slip, trip or fall?

In a November 2008 case, the Appellate Division, Third Department denied ¾ benefits to a police officer who injured himself when he slipped and fell on snow and ice that had accumulated on a wooden plank that had been laid down between the sidewalk and the street in front of his command post. The cop's accident occurred in January. The court took note of the fact that the cop had walked across the wooden plank numerous times during his tour and that, up until the time he fell, the plank was clear of snow and ice. The cop testified at the hearing held in connection with the appeal of the denial of his ¾ application that no snow fell that night and he did not see any dangerous condition on the plank until after he had fallen and felt ice underneath him.

The court stated the applicable law: "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."

Another November 2008 case involved a firefighter, who must meet the very same requirements as a Nassau County Police Officer in order to qualify for a ¾ accidental disability retirement. In this case, the firefighter, Robert K. Campbell, testified that there was no ice on the street when he hooked up a first line. He did describe several possible sources of water leaks on the day of the incident, including off spray from hose connections, imperfect seals in the hydrant/line connection and water dripping from the engine block and/or the down spout on the cooling system. The court took note of the fact that such leaks are routine. In his testimony, Campbell also acknowledged that it was sufficiently cold on the day of his injury to freeze water from these sources within a one-hour period and said that his fall happened about 45 minutes after he connected the first line. According to the court, "Simply put, [Campbell] slipped and fell on ice that formed while he was fighting a fire in sub-freezing temperatures."

According to the court, "The case law makes clear that 'an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

Another slip and fall case involves a county correction officer who also must meet the same requirements as a Nassau County Police Officer in order to qualify for accidental disability retirement benefits. In this case the correction officer, Terry L. Welch, slipped and fell on ice in the parking lot as she walked from the annex compound to her car in order to retrieve her cell phone so that a fellow correction officer could use it to make a personal call.

Although this case does not deal with the issue of whether an "accident" occurred, the court did deal with whether Welch was injured while "in service," and this is a requirement that cops must meet also. According to the court, "The law is settled that [the comptroller] is 'vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld.'" The court further noted that "Although [Welch] testified that she was on duty and authorized to be in the area where she fell, the record is clear that she ‘was engaged in a personal activity rather than performing work duties' at the time when the incident occurred."

Yet another slip and fall case where the applicant was denied accidental disability retirement benefits involves a school custodian who also has the same burden of proof as cops in establishing entitlement to ¾ accidental disability retirement benefits. In this case, Francis J. Flynn, who worked as a custodian for the Deer Park School District, was called into work early to help shovel walkways following a severe snowstorm. Because of the large amount of snow that had fallen, a heavy construction vehicle was used to partially clear the walkways. The construction vehicle pushed down and compacted the snow at ground level, creating a slippery condition. When Flynn began to shovel the walkway, he slipped and fell on the compacted snow, injuring his neck, back and shoulder. In finding that this injury was not an accident, the court reasoned that "For purposes of the Retirement and Social security Law, an accident is 'a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.' In determining whether an accidental injury has been sustained, 'the focus must be on the 'precipitating cause of injury' and not on [Flynn's] job assignment. Indeed, 'it is critical to the determination … that there was a precipitating accidental event … which was not a risk of the work performed."

The court took note of particular facts in this case: Flynn had shoveled snow on many occasions, he knew the snow was slippery and he actually saw the construction vehicle that compacted the snow and ice on which he subsequently slipped. These facts persuaded the court that Flynn's injury was not an accident.

In another slip and fall case, a police officer suffered a disabling knee injury when he slipped and fell on wet grass while chasing a suspect. In deciding that the injury did not warrant an award of a ¾ accidental disability retirement pension, the court noted that "Crucial to the finding of an accident in cases of this nature is 'a precipitating accidental event … which was not a risk of the work performed.' Thus, 'unless the injury results from an event that would not ordinarily be anticipated in the context of the worker's employment, it cannot be defined as an 'accidental’ injury.' In chasing a suspect, [the police officer] was certainly engaged in police work and, in the performance of this work, exposure to a variety of conditions, including wet grass, was an inherent risk that would ordinarily be anticipated. Accordingly, [the comptroller] could rationally conclude that the [police officer's] slip and fall on the wet grass encountered during the chase was a risk of the work performed."

These cases illustrate that slipping and falling, no matter how severe the resulting injury, may turn out to be a very hard way to achieve a ¾ accidental disability retirement. Of course, when suffering a disabling injury in the line of duty due to a slip, trip or fall, even if it is not an "accident" it may be possible to qualify for ½ performance of duty disability retirement plus Workers' Compensation payments.

You should also keep in mind that you must file your applications for ¾ accidental disability retirement and ½ performance of duty disability retirement within two (2) years of being assigned to restricted assignment. If you file after the two (2) year mark, your disability will be measured against the duties of your restricted assignment instead of against the duties of a full duty police officer. Please also be aware that any time out on sick leave counts to the two (2) year time limit.

Overtime can also affect your ¾ accidental or ½ performance of duty disability retirement benefit. If you work more than 100 hours of overtime in any 12 month period following your disabling injury and while assigned to restricted duty, your disability will be measured against your ability to do restricted duty, as opposed to being measured against the full duties of a police officer.

Stay safe! However, if you are injured and need assistance with Workers' Compensation, Social Security Disability, ¾ Accidental Disability, ½ Performance of Duty Disability, Personal Injury Lawsuits, or any other medical/legal matter, do not hesitate to contact me at 516-496-0400 ext 4413.