Legal Report

The 2009 Holiday Season ended with no gifts to applicants for ¾’s from the Appellate Division, 3^rd department, which continued to uphold the Retirement System’s denial of ¾ claims on the basis that an “accident” had not occurred or that the medical evidence is insufficient. As the devoted readers of the Legal Report know, there is no ¾ award if an “accident” has not occurred.

In the case of Napoli v. DiNapoli (2009 NY Slip Op 0028), decided December 31, 2009, the Appellate Division, 3rd department, dealt with a detective who was a CSI specialist for the City of Newburgh Police Department and was injured in 1997 when he fell from an eight foot high ledge. (I doubt that you would ever see Horatio do this!). He was on a ledge processing latent fingerprints outside a second story window of a house that had just been burglarized.

As a factual basis for its finding that no “accident” had occurred, the court noted that “The detective’s job duties included investigating, searching for, documenting, protecting and evaluating evidence. To that extent, in addition to dusting the window for fingerprints, [the detective] was on the ledge looking for any evidence that the burglar may have left behind, such as tools, cigarettes, gum, footprints, hair or other DNA evidence. [The detective] described the ledge – which he had been on for approximately 10 minutes prior to his fall – as three feet wide, easily accessible from the back of the house and covered in a tar-like, rubbery substance. Despite realizing after he fell that there was moisture on the surface of the ledge where he slipped [the detective] also testified [at the hearing held as part of the administrative appeals process and after the application was denied] that the incident occurred on a warm, sunny day and the ledge appeared to be dry as he was moving across it. Accordingly, inasmuch as the foregoing suggests the inference that [the detective’s] injuries were the result of his own misstep or inattention while he was engaged in the performance of his ordinary employment duties [the comptroller’s] decision is supported by substantial evidence” and the decision of the comptroller was upheld.

In terms of the law, the court stated that “A "petitioner [the detective in the scenario above] bears the burden of proving that his [or her] injury was accidental and [respondent's] [the comptroller’s] determination in that regard will be upheld if supported by substantial evidence." Moreover, "[a]n accident within the meaning of the Retirement and Social Security Law is a sudden and extraordinary event that is unrelated to the ordinary risks of employment" and "injuries that arise out of an employee's own misstep or inattention will not merit an accidental disability determination.”

This is yet another example of the Retirement System shrinking the definition of “accident”, to the point that slips, trips and falls will more likely than not be seen as “missteps” as opposed to “accidents”.

In another interesting case, this one denying benefits on a medical basis, that the applicant was not permanently disabled for full duties, a police officer filed for ¾ and performance of duty disability benefits (50%) because he suffered from a psychiatric disability. According to the police officer, his coworkers had become aware that he had been involved in a homosexual relationship and subjected him to a “pattern of sexual harassment, homophobic slurs and death threats” (Weeks v. NYS Comptroller, 2009 NY Slip Op 09361, decided December 17, 2009).

After the applications were denied, the police officer requested a hearing and redetermination. As required, the police officer, attempting to prove his case, offered the testimony of his treating licensed psychologist, who testified that the cop suffers from chronic posttraumatic stress disorder and is "unfit for duty . . . in law enforcement in any capacity." The psychologist also testified that the cop "is a very capable man" whose inability to perform the duties of a police officer was strictly the result of the environment in which he was forced to work, i.e. the cop could not work at that job. The court went on to note the opinion of Marc Grusensky, M.D., a board-certified psychiatrist who examined the cop and testified on behalf of the Retirement System. According to Dr. Grusensky the police officer was not permanently disabled from working as a police officer and that, provided the behavior of his coworkers was addressed and rectified, the cop could return to his job at the police department.

The court’s rationale for deciding the claim in favor of the Retirement System is that, when faced with conflicting medical opinions, it is “well within the discretion of the Comptroller to credit the testimony of one expert over that of another.” When deciding whether the opinion of the Comptroller’s expert medical witness can overcome the testimony of a treating source, all the Appellate Division looks for is a “rational” report, that it be “fact based” and that the expert examined the applicant. That’s it. Neither the Comptroller nor the Appellate Division gives any extra weight to the opinion of a treating source, even if the treating relationship has lasted for years and the Retirement System’s expert has seen the applicant only for one examination.

The Court did note that the cop’s civil rights lawsuit was resolved in his favor and that because the disability claim was denied on medical grounds, there was no reason to decide whether this was an accident or not.

What do you think? Does a “campaign of harassment” constitute an “accident” for purposes of qualifying for a ¾ disability pension? Remember that the courts have repeatedly stated that an “accident” is an injury that is extraordinary, unexpected, unforeseen and not an inherent risk of the job’s ordinary duties.