February 2018 Legal Report

Legal Report by Milan Rada, Esq. with John Hewson, Esq. When a police officer or firefighter, who is a member of the New York State Police and Fire Retirement System, suffers a line of duty career-ending injury, (s)he may be entitled to a disability retirement pension. There are two line of duty disability pensions that are available: an accidental disability retirement pension that pays 75% of final average salary tax-free or a performance of duty disability retirement pension that pays 50% of final average salary, also tax-free. What separates entitlement to one or the other is: WHETHER OR NOT THE INJURY IS THE RESULT OF AN “ACCIDENT” within the meaning of the Retirement and Social Security law. Line of duty injuries will also qualify the injured police officer for Workers’ Compensation benefits, however, the finding that a Workers’ Compensation injury is the result of an “accident” has no bearing on a claim for accidental disability retirement (75%) benefits.

The issue of whether an injury results from an “accident”, as opposed to an “incident”, continues to plague applicants for accidental disability retirement benefits as the following three (3) recent decisions of the Appellate Division, Third Department illustrate.  In the first case the applicant, a police officer, was involved in a situation that many of you have experienced or may become involved in many times in the course of your career.

The applicant responded to a call with a fellow officer concerning an emotionally disturbed person (EDP) who was in a coffee shop. The EDP became unruly and fought against being handcuffed by the police officer. After the EDP was handcuffed, her boyfriend charged at the officers and the officer shot the boyfriend because he believed the boyfriend was carrying a gun.

The applicant later applied for accidental disability retirement benefits on the basis that he was permanently disabled from performing his full police duties because of an injury to his left shoulder resulting from the interaction with the EDP.

In finding that the event was not an accident, the court set forth its reasoning:  The “[Applicant] bears the burden of demonstrating that his disability arose out of an accident as defined by the Retirement and Social Security Law . . . . In order to be deemed accidental, an injury must not have been the result of activities undertaken in the ordinary course of one’s job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed. Notably, ‘[t]he risk of injury resulting from restraining emotionally disturbed individuals is an inherent risk of a police officer’s duties.’” Hence, no “accident” and disability benefits are limited to 50% performance of duty benefits. [NOTE: We did not represent this applicant in any phase of his claim. In fact, this applicant handled his claim pro se].

In the second case a NYS trooper filed applications for accidental disability retirement benefits (75%) alleging two (2) injuries to his right knee: In November 2012 while playing basketball and in July 2013 when he tripped on a tile and fell at work. The court found that neither event was an “accident” within the meaning of the Retirement and Social Security Law. The court explained: “There is no doubt that ‘an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury.’ As a result, ‘injuries incurred due to conditions that are readily observable and could be reasonably anticipated, or attributable to an employee’s own misstep or inattention, do not constitute accidents.’” 000

Applying this reasoning to applicant’s injuries, he was hurt when he “lost [his] footing” while playing basketball at a job-related training academy, “either because his leg buckled while running or because he slipped on a patch of sweat or water.” The court went on to point out, “even assuming that this voluntary activity was undertaken as part of his work duties, [the applicant] admitted that he had played basketball before and was aware of the conditions that could be found on the basketball court.” Therefore, the court concluded “. . . the incident did not constitute an accident, as it resulted from risks of the game that could have been reasonably anticipated.” The court skated around the issue of whether this injury occurred while the applicant was “in service” as is required by law, disposing of the matter by simply finding no “accident.”

Concerning applicant’s July 2013 incident, he “was working at a dimly lit dispatch call center when he tripped on a tile covering an air conditioning duct on the floor. [He] admitted [that he knew] that other workers covered the air conditioning ducts with tiles in order to block the cold air and, in fact, had previously seen the ducts covered in that manner. [Further] he knew where the air ducts were in the room and had walked past the air duct in question earlier that day.” Accordingly, the court stated that the applicant “could have reasonably anticipated the presence of the tile and that the ensuing trip and fall was not an accident.” [NOTE: We did not represent this applicant in any phase of his case either].

The third case involves a firefighter whose injury also was found not to be the result of an “accident” thus making him ineligible for an accidental disability retirement benefit (75%).  Firefighters must meet the exact same, rigid standards as police officers in order to qualify for accidental disability retirement benefits.

In this case a 14 ½ year veteran of the City of Yonkers Fire Department injured his back while he was practicing an emergency rappelling maneuver at the fire department’s training facility; he sustained his back injury when he came down too quickly, landed feet first on the safety net and then fell back onto his back while wearing his oxygen pack.

The rationale employed by the court for denying the accidental disability retirement benefit was: “It is well settled that for purposes of the Retirement and Social Security Law, an accident is defined as a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact. Notably, an incident is not an accident within the meaning of the Retirement and Social Security Law where the underlying injuries result from an expected or foreseeable event arising during the performance of routine employment duties  . . . or occur during the course of a training program constituting an ordinary part of the employee’s job duties and the normal risks arising therefrom.”

At the appeal hearing, the applicant testified that he had been previously trained in rappelling techniques when he first became a firefighter. On the day he was injured, training consisted of becoming proficient in the use of a new emergency escape system that gave firefighters a quick escape from a fire in a building by rappelling through a window.  Actual training consisted of watching a video and then deploying and using the emergency escape system; each attempted use of the system became progressively more challenging to simulate conditions that firefighters might encounter in an actual emergency escape situation. In attempting to fit the training exercise into the definition of an “accident,” the firefighter testified that the individual operating his belay line accidentally allowed the firefighter to descent much too quickly, which caused his injury. This particular information was not on any of the accident reports that were completed at the time of the injury.

The court handled this testimony as follows: “Inasmuch as the record reflects that the training exercise program arose from, and was a required part of, [the applicant’s] routine duties as a firefighter and given that the attendant risks of that training exercise program arose from, and was a required part of, [the applicant’s] routine duties as a firefighter and given that the attendant risks of that training exercise were reasonably foreseeable, [the court found] that substantial evidence supports the determination denying [the firefighter’s] application for accidental disability retirement benefits” (75%).

This reasoning illustrates what makes injuries suffered during training exercises so profoundly difficult to prove that they are the result of an “accident.” However, training exercise injuries may qualify for performance of duty disability retirement benefits (50%) as well as Workers’ Compensation benefits, which are payable in addition to the performance of duty disability pension.

Just today I met with a police recruit who was injured in a training exercise in the academy when she was thrown onto a mat and sustained a torn ACL of the left knee. Assuming this injury is career ending, it is not an “accident” as per the reasoning of the court cited above but is an “incident” that happened in the line of duty making the recruit eligible for a performance of duty disability pension (50%) as well as Workers’ Compensation benefits.

However, if a police officer is injured during training because of defective equipment, i.e., if the belay line broke apart, or the protective padding of a FIST suit fell off and the instructor was struck on the knee, these would constitute “accidents.” [NOTE: We did not represent this applicant in any phase of his claim either].

Every time we deal with the subject of “accident” versus “incident” we hope you have greater clarity on this sometimes very confusing and counter-intuitive subject. In terms of practical advice, don’t slip and fall on black ice in the winter, don’t trip in a pothole in the street and don’t trip over a well worn rug in the stationhouse that was in place for a some time; pay attention to what you’re doing, watch where you are going and stay safe.

If there any questions or concerns regarding disability retirement pensions, Workers’ Compensation, Social Security disability benefits, Veterans’ Administration disability benefits Zadroga claims or personal injury lawsuits, do not hesitate to contact us at 516-941-4403 or at mrada@fbrlaw.com. As PBA members you are entitled to a substantially reduced fee on disability retirement cases. With respect to Workers’ Compensation benefits, we represent members in all issues and disputes, even if the case will not generate a fee to the law firm. Should you find yourself scheduled for a 207-c hearing, you are entitled to legal counsel at no fee to the firm.

We welcome your referrals of family and friends.

Leave a Comment