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January 2017 Legal Report

Legal Report by Milan Rada, Esq. with John Hewson, Esq. At the start of the New Year, we feel it is beneficial to stress the importance of certain fundamental requirements as they relate to line of duty injuries: 1) Per the Department Manual, you MUST report your injury to the Department within seven (7) days of the injury, even if you consider it to be a minor event of no significance. Even if the injury truly appears to be a minor one, at the very least complete a “non-recordable” report of your injury, again within seven (7) days of the injury. The “non-recordable” report will suffice as proper and timely notice of your accident to the Police Department. 2) Make sure your PBA delegate and/or trustee is fully aware of your accident as soon as possible. 3) If you are out sick for three (3) or more days, you must present a Physician’s note to the Department documenting your illness or injury. Be aware that to the Department a “physician” is a medical doctor, an M.D., and unfortunately, not a chiropractor, not a podiatrist, not a physician’s assistant and not a nurse practitioner.

Thursday, November 17, 2016, was not a good day for four (4) applicants who appealed denials of their disability applications to the Appellate Division, Third Department. All four (4) applicants lost: two (2) police officers, one (1) firefighter and (1) correction officer were all denied their applications for a tax-free accidental disability retirement benefit (3/4).

In the first case, Matter of Rosenbergen v. DiNapoli, Police Officer Rosenbergen filed an application for accidental disability retirement benefits (3/4) on the basis of injuries she sustained in a slip and fall on December 12, 2010. After she walking out of a residence towards her police vehicle,  to which she had responded to a domestic aided call, she fell on the street.

The circumstances surrounding her fall were: it was 2:30 a.m. and the roads were icy and “treacherous;” she observed freezing rain and saw that the roads were “icing up” and were “very bad;” and, at the home, she responded to, the driveway was icy. When she left the house, about an hour later, it was no longer raining. She walked to the bottom of the driveway where she fell on unseen ice.

The Court held that this was not an accident within the meaning of RSSL Sec. 363 because it happened “while she was performing the routine duties of her employment and that the precipitating event, the condition of the road in subfreezing conditions, could have reasonably been anticipated” (emphasis added).

In describing the definition of an “accident” for ¾ purposes, the Court said it must be “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” Further, the Court noted that “to be deemed accidental, any 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,” noting that “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.”

In the second of the police cases denied by the Appellate Division on November 17, 2016, Matter of Buono v. DiNapoli, police officer Buono was injured when, while placing a handcuffed suspect into the rear seat of the RMP, the suspect pulled away causing Officer Buono to be pulled toward the vehicle. The cop was injured when he hit his neck and right shoulder on the door jamb.

In finding that Officer Buono was not injured as the result of an “accidental” injury, the Court noted that Buono was performing a routine duty of his job when he responded to his fellow officer’s request for assistance in placing the suspect under arrest. According to the Court, “He [Buono] had a hold of the suspect and was in the process of guiding him into the back seat of the patrol vehicle, an activity that he had performed before and for which he had a specific protocol when the suspect pulled away.” Notably, the Court went on to write that, “considering that the suspect had violently resisted arrest and was clearly agitated, it could be reasonably expected that he would not be cooperative in getting into the vehicle. The Court concluded that Buono’s injury arose from an inherent risk of his job.

In finding that the cause of Buono’s injuries was not an “accident,” the Court’s reasoning was as follows: an “accident” is “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; 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.”

The third of the four denials of November 17, 2016, involved a firefighter, Timothy Powers, who was injured in March 2012, when while moving heavy firefighting equipment he tripped and fell causing injuries to his head and back. Essentially, Firefighter Powers was transferring heavy equipment from a disabled fire truck on to a reserve truck, when he slipped over a one-foot long crack in the pavement that was broken into one to one-half inch fragments that he had not seen before he fell.

According to the Court, “. . . under the circumstances presented here, the incident occurred during [the firefighter’s] performance of routine and regular duties as a firefighter, which he had performed numerous times, and the hazard encountered by [the firefighter] was readily observable and one that could have been reasonably anticipated.” The Court concluded that Powers’ “fall resulted from his own inattention and misstep and that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law.” [NOTE: (1) Our law firm did NOT represent any of the applicants for disability whose cases are discussed in this Legal Report. (2) Firefighters must meet the same definition of “accident” as police officers].

The last of the four denials of November 17, 2016, involved a correction officer. Since the standard for a ¾ disability for a correction officer is different from a police officer, there is no need for any discussion of this case, except to point out that correction officers also have a very tough time when appealing to the Appellate Division, Third Department.

If there are any questions, comments or criticisms about this or any past Legal Report, please contact Milan Rada, Esq. at 516-941-4403 or by email at mrada@fbrlaw.com. Fusco, Brandenstein & Rada, P.C., has been the PBA’s officially designated disability counsel since 1988, representing injured police officers, their families, and friends, in matters of Disability Retirement Benefits, Social Security Disability Insurance Benefits, Workers’ Compensation Benefits, Medical Review, GML Sect. 207-c Benefits and Personal Injury lawsuits. We, of course, welcome referrals of your family, friends, and neighbors.

On behalf of the entire staff of Fusco, Brandenstein & Rada, P.C., we extend our sincerest wishes to all our readers for a very Happy New Year, filled with love, peace, happiness, good health and prosperity. Be safe.

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