Legal Report

I was at a luncheon recently with my partners, Richard Brandenstein, Esq. and Victor Fusco, Esq. and a colleague who is a very renowned practitioner in the disability retirement field. Naturally the topics we discussed included the Retirement System’s vice grip on the definition of “accident”, growing ever tighter so as to choke off an unprecedented number of ¾ claims for serious and career ending injuries on the basis that an “accident” had not occurred. What struck me most interesting was when my colleague observed that no one knows what an “accident” really is. And he turned to me, saying, “I know you don’t know what an accident is because I read your column.”

Digesting that comment, it has occurred to me that more often that not, in this Legal Report, I identify cases where first the Retirement System and then the Appellate Division 3rd Dept., find that an injury is not an accident as opposed to identifying accidents. The reason for this is obvious. Once the Retirement System finds that an injury is not an accident, the Appellate Division, 3rd Dept. virtually every time supports the Retirement System and agrees that an accident has not occurred. So, I have identified 3rd Department cases which give us great guidance on what an “accident” is not, as opposed to what an accident is, other than citing boilerplate definitions which attempt to rationalize the outcome. It is as if the Appellate Division does not want to take on the Retirement System. Certainly the state’s economy, being in the terrible shape that it is in, favors the award of a less expensive benefit, than a more expensive one.

So, what is an “accident” in order to qualify for a ¾ benefit? The decisions, whether from the Judicial Hearing Officers at the administrative level, or the Appellate Division, will cite the Lichtenstein definition: to constitute an accident, an incident must involve a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact. Further, this definition has been expanded to include the requirement that if an injury is the result of an inherent risk of one’s duties, then it is not an “accident.”

The following has been accepted by the Retirement System as an accident: “While on duty and at work, driving a marked police car, I was involved in a head on collision when the defendant purposely drove his car into the police vehicle.” (This case is on appeal due to a medical denial). The following event was also accepted by the Retirement System to be an accident: “While on duty and at work, in the process of administering a breath test, I advised the subject that he would not be able to leave police headquarters because his BAC was .17. The subject became enraged and violent - he began to fight and wrestle with me in the testing area. With the assistance of other police officers, we finally gained control over the subject and brought him to the waiting bench. At the waiting bench, the subject began to bang his head against the wall, stating that he wanted to kill himself. I assisted the arresting officer in attempting to gain control over the subject again; he kicked me in the left knee causing my left knee to twist and causing pain. I fell into the waiting bench and then fell onto the floor striking my left knee on the floor, causing further pain at my left knee and resulting in the injury and disability to my left knee.” (This case is also on appeal due to a medical denial. It should also be noted that initially the Retirement System took the position that this was not an accident; however, counsel intervened and pointed out the differences between a non-accident “restraint” case and the assault in this case and fortunately, the Retirement System was persuaded and then just denied the claim on medical grounds).

I don’t know if the matter is any clearer now, but I am certain beyond any doubt that I will be re-visiting this issue in future editions of the Legal Report. Moving on to another topic, I received an email from a reader asking me for the names of the doctors who make up the New York State Retirement System’s Medical Board. They are: 1) Kevin Barron, MD, who practices neurology in Albany and graduated with his MD 58 years ago; he is Board certified in neurology; 2) James Sullivan, MD, who practices internal medicine with a specialty in oncology and graduated from Albany Medical College in 1963; 3) James Castleman, MD, who is an internist with a specialty in hematology and graduated NY Medical College @ Valhalla in 1960; 4) Carl Wirth, MD, who is a Board certified orthopedist; 5) Andrea Lefton, MD, who practices pediatric psychiatry and psychiatry, received her MD degree 26 years ago; and, 6) Neil David Colman, who was licensed to practice medicine in February 1972, graduating from Tufts University Medical Scholl and is Board certified in orthopedic surgery.

The names of the Medical Board members were graciously supplied to me by Joseph Lennon, Secretary to the Medical Board of the NYS and Local Retirement System. I collected the individual information on each doctor from the Medical Directory of New York State and google. I sent my collected information to Mr. Lennon for verification, or to distribute to each doctor for verification. Mr. Lennon replied that he was “too busy to do my work” and the doctors would be working on cases while being paid, as opposed to going over this information. I suppose you can expect to get your determinations much quicker now that Mr. Lennon has confirmed how little time he and the Medical Board have to devote to other matters of concern to members.

If you need any assistance with your disability claims, Workers’ Compensation claims, social security disability insurance claims or personal injury lawsuits, please contact me by telephone at 516.496.0400, ext 4403 or email at HYPERLINK "mailto:mrada@fbrlaw.com" mrada@fbrlaw.com.