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October 2019 Legal Report

By: Milan Rada, Esq. with John Hewson, Esq. 

As we have written over the past several years, the laws and circumstances surrounding Accidental Disability Pensions have changed dramatically over the years, and they have definitely not changed for the better.  The Retirement System appears to have made a concerted effort over the past two decades to narrow the definition of what is and what is not an “accident” to such an extent that, following the decision of the Court of Appeals this past spring in Matter of Kelly, you might be led to believe that nearly nothing will be an “accident” in the  going forward.  While there is certainly cause for alarm, we also firmly believe that this is a time to re-evaluate why certain cases have been denied over the past several years, and to once again, remind everyone of the importance of accident reports, descriptions of events, and the impact that the initial documents in a matter will have over the ultimate outcome of that claim. 

In Kelly, the Court of Appeals took up the situation of an Orangetown police officer who was injured while performing incredibly heroic, lifesaving rescues when a tree collapsed onto and into a house during the height of Superstorm Sandy.  A tree landed onto the house, partially collapsed the structure, and impaled one of the homeowners driving the person into the basement of the house where other family members also became trapped.  As he passed the house, the officer sprung into action with the help of another passing officer.  Together they ran into the home in order to rescue the remaining members of the household.  The police officer held up falling beams and debris in the house as the other officer helped pull people from the debris until the fire department arrived to complete the rescue.  As a result, the police officer suffered career ending injuries to his shoulder and neck. 

Clearly, under those circumstances, we can all agree that this police officer should be entitled to Accidental Disability benefits.  In fact, at a different level in the claim, the hearing officer for the Retirement System also agreed, but the Comptroller overruled the Hearing Officer and denied the “accident”.  No one would dispute that these events would constitute something “unexpected, out of the ordinary, and injurious in impact” as required under the case law that every court cites to in these cases.  However, this officer was denied his 3/4 Accidental Disability benefit by the Court of Appeals.  How could this possibly happen? 

The Court of Appeals attempted to address this issue and draw comparisons to past cases where it had denied “accidents.”  The Court stated that the officer must have been injured as a result of a precipitating accidental event that was not a risk of the work performed, and that the officer was acting within the scope of his ordinary job duties.  Further, the Court believed that the standard on “accident” cases for the future would be whatever those ordinary job duties are for a given job title. Based on this logic almost nothing would be an “accident” for a police officer. With Kelly, the Court stated that responding to emergencies is an “ordinary duty of a police officer” and being directed to respond to life-threatening emergencies is a part of such ordinary police duties. Interestingly however, the majority decision also notes that the opposite outcome finding this to be an accident would also have been a reasonable, and thus logical, conclusion.  As we noted in a prior article after this case was decided, there was a lengthy and articulate dissent in the case as well.  The dissent quite pointedly called out past decisions as essentially arbitrary and seeming to operate in a “Wild West” environment. They are not wrong. 

As your disability counsel, decisions such as Kelly always resonate and cause us to have major internal discussions as to how we can best protect the members of the PBA going forward.  Unless there are significant changes to the way an “accident” is defined under the statute, we unfortunately must operate on these cases in a landscape where the Kelly decision looms.  But, we do believe there are major lessons that need to be taken away from the Kelly decision, and most of those lessons are ones that we have shared in the past and topics on which we have lectured for a long time. 

Quite frankly, despite our position that what occurred should very often be considered accidental, we respectfully believe that many of the problems that occur on cases such as Kelly start initially with the accident report and description of the events.  As we have written for years, documentation and accurate, detailed descriptions of injuries are the heart of any of these cases.  A poorly drafted accident report can easily turn a viable 3/4 claim into one that leads to a 50% Performance of Duty claim instead.  That is the exact reason why, when a member is injured, we continually remind you of the fact that the Department Manual provides you with seven days to file your accident report.  Regardless of how much pressure is placed upon you by a supervisor, it is very rarely in your best interest to file a report right away after the event in question.  If that report is rushed, it is very easy to overlook many of the important details that might make the injury the result of an “accidental” event as opposed to being determined to result from an “ordinary job duty” incident.  Without knowing the inner workings of the Orangetown Police Department and its accident reporting procedures, it would not surprise us to find out that the accident report filed by Officer Kelly was done quickly and without much review by Officer Kelly, his delegate, or their legal counsel.  While not every event is going to constitute an “accident”, a better drafted accident report might have led to a different result.  If the report was drafted simply with the extreme, exigent circumstances as the backdrop to Officer Kelly’s injuries, but he was hurt while lifting debris and holding up rafters in the house, then the actions that caused his injury are exactly the same as a Nassau Officer that might be injured lifting a trundle.  And as we know, lifting a trundle is not an “accident”.  However, if Officer Kelly was really injured as a result of being struck by falling beams and debris, or the house collapsing around him caused further aggravation of his injuries, not only should those facts be in the accident report, but, if true, would most likely have led to a different outcome. 

As you can see, we are incredibly passionate about the fact that the accident report is most likely the single most important piece of information that goes into an accidental disability claim.  Please do not allow a simple oversight to be the reason that you do not protect your ability to get a 3/4 disability benefit after an injury.  Speak to your trustees or delegates when you are injured so reports are drafted timely, accurately and comprehensively.  And, of course, we are always available to trustees, delegates and injured members to assist in any way, particularly if you’re not able to reach PBA officers. 

If you have any questions about this article, or any other disability related topic, please never hesitate to call us at 516-941-4403 or by e-mail at mrada@fbrlaw.com.  It is always our honor to represent the brave, hard working members of the Nassau PBA.  Please stay safe because we much rather see you at holiday parties as opposed to in our office following an injury. 

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