Legal Report

A recent decision handed down by the Appellate Division 3rd Dept. illustrates the importance of accurate report writing when describing how an injury occurred. In order to qualify for a ¾ accidental disability retirement benefit, an injured police officer must show that he is permanently incapacitated due to a physical or mental impairment, or combination of the two, as the result of an "accident" sustained in the line of duty. The term "accident" is not defined in the law providing for a ¾ disability benefit. Rather, the definition of an "accident" has evolved from a large number of court decisions. In one such case, the Appellate Division wrote, "It is axiomatic that an 'accident' within the meaning of the Retirement and Social Security Law 'contemplates a sudden fortuitous mischance which is out of the ordinary and injurious in impact'" and "an injury which occurs without an unexpected event as the result of an act undertaken in the performance of ordinary employment duties is not an accidental injury."

Because of the need to meet a very narrow, very strict and very inflexible definition of the term "accident," a ¾ disability claim can rise or fall on the written description of how an injury occurred, particularly on those accident reports and forms that are completed at the time of the accident. Following is a reprint of a decision involving a ¾ claim for a registered nurse, who has to meet the same criteria to qualify for a ¾ disability benefit as police officers must. Make sure you read this decision carefully and heed the warning contained therein.

"Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application for accidental disability retirement benefits.

Petitioner, a registered professional nurse employed by the Kingston City School District in Ulster County, sustained a fractured hip when she fell down a flight of stairs while attending a job-related conference. After her application for accidental disability retirement benefits was denied, petitioner requested a hearing and redetermination. The Hearing Officer ultimately denied her application, finding that she had not sustained an accident within the meaning of the Retirement and Social Security Law. Respondent Comptroller adopted the Hearing Officer's findings, prompting this CPLR article 78 proceeding.

An accident under the Retirement and Social Security Law is characterized as "a 'sudden fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'" (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], quoting Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]; see Matter of Pryor v Hevesi, 14 AD3d 776, 776 [2005]). To be considered an accident, it must be deemed that "the event precipitating the injury was not a risk of the work performed" (Matter of Lucian v McCall, 7 AD3d 905, 906 [2004]; see Matter of Pommerville v McCall, 6 AD3d 1025, 1026 [2004]).

Here, petitioner testified that it had been "dreary and raining all day" and, as she attempted to walk down the flight of stairs, she "slipped on the wet floor and went airborne," causing her to fall to the bottom. In denying petitioner's application, the Comptroller found that she failed to make any reference to wet stairs prior to testifying at the hearing. The Comptroller, noting that the accident report and application for accidental disability retirement benefits were silent with regard to any allegation of the stairs being wet, concluded that petitioner "fell by reason of her misstep" and therefore did not suffer an accidental injury. It is well settled that any apparent inconsistency between a petitioner's sworn testimony and written documents presents a credibility issue for resolution by the finder of fact (see Matter of Callanan v McCall, 301 AD2d 780, 781 [2003]; Matter of Slagle v McCall, 293 AD2d 923, 924 [2002]; Matter of Arcuri v New York State & Local Retirement Sys., 291 AD2d 621, 622 [2002]. Resolving the credibility issue, the Comptroller concluded that the precipitating cause of her fall was a misstep which does not constitute an accidental injury (see Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, supra at 1012). Inasmuch as the Comptroller's conclusion that petitioner failed to demonstrate that she suffered an accident within the meaning of the Retirement and Social Security Law was essentially premised upon a credibility determination, we find it to be supported by substantial evidence notwithstanding that the acceptance of petitioner's hearing testimony could support a different conclusion (cf. Matter of Lawrence v McCall, 305 AD2d 960 [2003]).

When you complete your incident/accident reports, when you complete your C-3 form for Workers' Compensation benefits, and when you complete your application for disability retirement benefits, make sure that the description of the accident is complete and thorough. If you slip and fall, you must indicate what caused you to slip and fall, as for example, "While carrying the aided on a trundle, I slipped and fell on the aided's blood, which had just dripped to the floor." Failure to do so will result in a denial of ¾ benefits on the theory that your slip and fall was the result of your own misstep and not the required "'sudden fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" event required for an "accident." If you are involved in a use of force arrest, and you are punched, kicked or struck with any object, make sure your reports state that clearly. Do not say only that "I was injured while affecting an arrest." Under some circumstances injuries in the line of duty while making an arrest will be accidents and under other circumstances they will be deemed "incidents," qualifying the injured officer for only 50% disability while incurred in the performance of duty benefits.

Every report you fill out may very well wind up being an exhibit in your disability case. Take your time: be thorough, be complete and be accurate. Do not get denied a well deserved ¾ disability benefit because you did not take the time to correctly complete paperwork.

Once again I attended the Police Memorial in Washington, D.C. It is a very dramatic and solemn memorial that pays very dignified tribute to law enforcement officers who have perished in the line of duty. You can see some pictures from the 2006 Police Memorial at the firm's website, www.fbrlaw.com.

I hope all of you have a safe and wonderful summer and that you travel to beautiful and exotic places. As always, if you have any questions concerning disability retirement claims, Workers' Compensation claims, Social Security disability claims, Medical Review or personal injury lawsuits, please do not hesitate to call me at 516-496-0400, ext. 4413. My very able paralegal, Carol Venezia, is always ready to schedule appointments at any of our offices. You can also reach me at mrada@fbrlaw.com.