Legal Report

The Appellate Division, Third Department, handed down a decision on June 22, 2006 that does not bode well for injured police officers who plan on filing for accidental disability retirement benefits (3/4's). As the dedicated readers of the Legal Report know, it is an "accident" that separates a ¾ disability pension from a ½ performance of duty disability pension. The Appellate Division's ruling in the case of Matter of Coon v. New York State Comptroller illustrates the extent to which the Retirement System and the court have narrowed and circumscribed the definition of an "accident," making it very difficult for an injured police officer to meet the legal standard of an "accident."

Because I consider this decision significant, I am quoting it verbatim, except for the legal citations to other cases: "Petitioner was a police officer employed by the Suffolk County Police Department and was directing traffic at a congested intersection. The undisputed evidence established that while petitioner was guiding a large tractor trailer through the intersection, he stepped backward into a pothole and fell. Petitioner sustained allegedly disabling injuries to his lower back and coccyx, and applied for accidental disability retirement benefits. His application was denied on the ground that the incident that caused his injury was not an 'accident' within the meaning of Retirement and Social Security Law Sec. 363. Following a hearing and redetermination, a Hearing Officer denied his application on the same ground, which determination was accepted by respondent Comptroller. Petitioner now seeks judicial review.

"We confirm. An accident within the meaning of the Retirement and Social Security Law is a 'sudden, fortuitous mischance,d unexpected, out of the ordinary, and injurious in impact" (citations omitted). An accident will not be found when the event precipitating the injury is a risk of the applicant's ordinary employment duties (emphasis added; citations omitted). Stepping into a pothole while directing traffic is clearly a risk of the work performed by police officers (citations omitted), even if petitioner was unaware of the hazard that caused his fall (citations omitted). As the Comptroller's decision is supported by substantial evidence in the record, it will remain undisturbed."

According to the Nassau County Civil Service Commission, a police officer's "general duties are described as follows: "Performs general law enforcement duties, and patrols an assigned area for the protection of lives and property and the enforcement of laws and ordinances over which the Police Department has jurisdiction performs related duties as required." As to the complexity of duties, the job description sates that, "Under general supervision, the duties involve an element of personal danger, and stress, and require the exercise of considerable judgment and physical ability in detecting and preventing crime, arresting offenders, and preserving the public peace." As to "typical duties" of a police officer, such duties include: "Locates, pursues if necessary, and arrests persons wanted on warrants or court orders, or as a result of observation, or crime in progress, using forceful arrest methods and/or deadly physical force, as required; Rescues individuals at accidents, emergencies, and disasters, which may involve climbing and/or jumping up, down, or over obstacles, entering confined areas, and balancing on narrow surfaces, as required."

As an example of how this concept of "inherent risk" is applied by the Retirement System and the Appellate Division, consider the following: On December 16, 2004, the Appellate Division, 3rd Department decided the case of Matter of Barbara Ammann v. New York State Comptroller. The law that applies to police officers with respect to disability retirement claims is the same for court officers. Ammann, "a court officer, applied for accidental disability retirement benefits after she was injured during an altercation with an unruly criminal defendant. Ammann's initial application for benefits was denied, whereupon she requested a hearing and redetermination. Ultimately, a hearing Officer concluded that Ammann had not sustained an accident within the meaning of the Retirement and Social Security Law and denied her application. The Comptroller upheld that decision, prompting Ammann to commence this proceeding pursuant to CPLR article 78 to challenge the Comptroller's determination.

"The record reflects that the Comptroller draws a distinction between injuries received by a court officer as the result of an assault and injuries received as the result of an attempt to restrain a disruptive individual while performing the duties of a court officer. According to the Comptroller, the former constitutes a compensable accident, while the latter constitutes a risk inherent in the course of the court officer's employment. Here, both the Hearing Officer and Comptroller concluded, based upon the testimony adduced at Ammann's administrative hearing, that Ammann was injured during the course of restraining a criminal defendant and, hence, she did not sustain a compensable accident."

The lesson from this case is clear. If a police officer suffers an injury during an arrest, the Retirement System will scrutinize the facts to determine exactly how the injury occurred, because only an injury resulting from activity NOT an inherent risk of the job will qualify as an "accident." If, while making an arrest, you are kicked or punched or pushed or pulled to the ground, or into some object, such as the side of the RMP, make sure your initial accident reports reflect this accurately. Make sure you identify the part of your body that took the hit, i.e. "I was punched in the back.'

A few editions ago, I wrote an article about a police officer who suffered a heart attack just after chasing some bad guys. Remarkably, the Police Surgeon's Office denied this cop line of duty status for the heart attack. I am happy to advise you that the cop went through the Medical Review process and it was determined that the heart attack was incurred in the line of duty. What I am not happy to report is that just a few weeks ago one of our Marine Bureau cops was denied line of duty status for a heart attack he suffered while pushing a sailboat that was threatening to hit at the stern of the Marine Bureau vessel. The sailboat had broken free of its mooring in very heavy wind and very heavy sea conditions. The cop had the heart attack while attempting to protect his partner, who was at the back of the Marine Bureau vessel and the Marine Bureau vessel itself, by attempting to push the sailboat away.

Even more remarkably, the Police Surgeon denied this police officer line of duty status! I would have thought that the Police Surgeon would have learned something from the case of the cop who had a heart attack while running after some preps. Our Marine Bureau cop is being treated by two physicians: an internist and a cardiologist. After the denial of line of duty status, a request for Medical Review was submitted, pursuant to the Memorandum of Understanding of March 25, 1993. The cop indicated that he was designating his internist on his behalf. The Memorandum of Understanding specifically provides that the cop seeking Medical Review designates the doctor who will consult with the Police Surgeon on behalf of the cop. The Police Surgeon was not satisfied with the cop's designation of his internist, preferring that the cardiologist be designated. The Police Surgeon requested that the cop designate his cardiologist instead.

Please be aware that in Medical Review situations, you have the right to designate the doctor you want the Police Surgeon to contact regarding your claim. The Police Surgeon has no right and no authority to request that you designate another physician. So, if you have an orthopedic impairment, and you are being treated by an orthopedist and a neurologist and perhaps a physiatrist and perhaps a pain management specialist, you select the doctor that the police surgeon must then contact. If the Police Surgeon contacts you and asks that you change the doctor you have picked for Medical Review, please get in touch with your PBA delegate, trustee and/or Kevin Tobin, 2nd V. P. Since such action by the Police Surgeon is contrary to the provisions of the Memorandum, it must be brought to the attention of the PBA right away for appropriate union action.

As a reminder, the deadline for filing notice with the Retirement System for 9-11 presumption claims is June 14, 2007. If you have not filed this notice yet, please take care of this as soon as you can.

If you have any questions, or need assistance with claims for Workers' Compensation, Social Security Disability, Accidental Disability Retirement, Performance of Duty Disability Retirement, 9-11 Accidental Disability Presumption Claims, Personal Injury Claims, or Long Term Disability Claims, please contact me at 516-496-0400, ext 4413 or mrada@fbrlaw.com.