Legal Report

Applicants filing for disability are not happy with the amount of time it is taking the Retirement System to process cases. Applicants are not happy that after being sent to a state doctor who submits a report to the Retirement System fully supporting the claim, the Retirement System sends that applicant to yet a second state doctor with no explanation as to why this second examination is necessary. Applicants are really unhappy with how the term "accident" has been so whittled down so that it appears that you need a 300 pound safe to fly through the air and hit you in the head in order to qualify for an "accidental" pension. Of course, if you are anywhere near a safe manufacturing company, the Retirement System might say it is "an inherent risk" of being in that location.

Despite these very valid criticisms pointing out very serious shortcomings, the Retirement System did get it right in the technology sphere. Recently the Retirement System began posting Hearing Officer decisions on its website. This is really good, and I anticipate that it will get better. You can find the hearing officer decisions posted at https://nyosc9.osc.state.ny.us/product/ihod.nsf. The posted hearing decisions appear to cover the period June 2, 2006 through June 22, 2009. Not every hearing decision during this period has been posted. You can search for hearing decisions by hearing case #, decision date, a drop down menu for hearing officer names and a drop down menu for topics, such as accident types – inherent risk/foreseeable event, misstep/slip, lifting, training exercise, general, etc. Reading these decisions will give you some idea of what you are up against if you need to request a hearing and redetermination following a denial of your application by the Retirement System.

For those of you not familiar with the process, after you file your application the Retirement System will verify information you have provided, including your employer, dates of employment, dates of accident(s), location of accident(s), description of accident(s), nature of injuries, dates on restricted duty, amount of overtime worked while on restricted duty and review of medical records. Assuming your application is not denied on the basis that your injury is not an "accident", the Retirement System will then set up an appointment for you to be examined by a doctor of its choosing. This is an extremely important step in the process because the Retirement System usually gives dispositive weight to the opinion of its medical expert. Following a denial of your application for disability retirement benefits, you have the right to a hearing. By reading the posted hearing decisions, you can gain some insight into the nature of these hearings and what you are up against.

On November 12, 2009, the Appellate Division, Third Department came down with a decision dealing with a police officer's application for ¾ in a context that is familiar to all of you. A Suffolk County cop was injured when an emotionally disturbed man that he was escorting suddenly lunged at him. The cop filed an application for ¾ that was denied and he requested a hearing. The Hearing Officer decided that the manner of the cop's injury was not an "accident" within the meaning of the Retirement and Social Security Law and also denied the claim. The cop turned to the Appellate Division for relief.

The court describes the record in this way: "The record reflects that [the police officer] and his partner escorted a reportedly suicidal man from the man's home to the psychiatric ward of a hospital. [The cop] had previously participated in similar escort duties, and his partner testified that sometimes the subjects in such escort cases were calm, and sometimes they were not. This man did not act in an aggressive manner and did not resist when the officers handcuffed his arms behind his back before transporting him to the hospital. At the hospital, the man remained under the officers' control in a small police waiting room when, still in handcuffs, he suddenly ran across the small room and lunged at [the police officer], causing [the police officer] to fall and sustain injuries. [The police officer's] partner and hospital security guards quickly pulled the man off of [the police officer]. The entire incident lasted a minute or less. No charges were brought against the emotionally disturbed man."

The court upheld the Retirement System's rejection of the police officer's position that he was entitled to ¾ because he was injured as the result of an assault as opposed to physical contact in the course of restraining a disruptive individual. The court found that as a police officer, he was expected to control and restrain potentially violent and psychotic patients. Of particular significance, the court noted that "Although there is evidence in the record that would support a conclusion that [the police officer] was injured as the result of an assault, the mere presence of such evidence does not undermine the Comptroller’s determination that [the police officer] was injured by physical contact of the sort inherent in the routine performance of [the police officer's] duties."

The lessons from this case are clear: the Retirement System does not like and is not finding that an "accident" occurred in these kinds of escort cases, even when there is evidence of an assault on the cop; and, do not count on the Appellate Division to overturn the Retirement System's denial of disability retirement benefits, particularly when the injury results from a mental aided who starts going wild.

Governor Patterson has recently signed corrective legislation that re-opens the filing period for lawsuits against New York City for injuries sustained during the rescue, recovery and clean-up following the World Trade Center terrorist attack on September 11, 2001. There is only a one year window to do this, and the clock has already begun to run. If you have any questions, please call us at 1-800-416-5454, ext. 4455 to schedule an appointment.

On behalf of the entire firm, we extend best wishes for a very happy and safe holiday season to all of you and your families.