September 2021 Legal Report


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

The Legal Report has often covered the requirements of obtaining a ¾ Accidental Disability Retirement pension versus a ½ Performance of Duty Disability pension. In order to qualify for either of these disability retirement benefits the applicant must prove he or she is permanently incapacitated for the performance of the full duties of a police officer, that the disability is causally related to the injury or injuries being claimed, that the injury was suffered in the line of duty and that the injury is the result of an “accident” as this term is used in the Retirement and Social Security Law (RSSL), or the result of an incident. What separates one benefit from the other is whether the injury is the result of an “accident.” If not, the applicant will be limited to a ½ Performance of Duty Disability pension.

As we have written many times, within the meaning of the RSSL explanations of what constitutes an “accident” comes from case law. “For purposes of the Retirement and Social Law, an accident has been defined as a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.’ “The Courts have emphasized that “in order for any injury to be considered accidental, it ‘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.”

In June 2021, the Appellate Division, Third Department handed down a somewhat different type of a ¾ Accidental Disability Retirement pension decision in that it dealt with an allegation that the disabling injury was a mental one diagnosed as posttraumatic stress disorder, manic depression and anxiety, by the applicant’s physicians and deemed by them to be unable to return to work. The applicant was a State Police Officer.

While we have written a great deal about ¾ Accidental Disability Retirement claims based on physical impairments, such as injuries to the back or knee or shoulder, we have not written frequently about mental impairments causing a disability, if at all. Connecting this State Police Officer’s mental injury to an “accident” within the meaning of the RSSL is necessary in order to qualify for a ¾ Accidental Disability Pension.

The Officer worked as a trooper for a time and then as an investigator. While working as an investigator he worked as an undercover narcotics detective, both here and abroad. He spent much of his time in Columbia working with informants “in an effort to infiltrate drug cartels and curtail the supply of drugs coming into the United States. This work entailed interacting with dangerous individuals and exposed [the officer] to a number of traumatic events, including losing informants who were killed and having to identify their bodies.” Sometime after returning from a mission, the officer suffered a panic attack in his office. Subsequently, he received the diagnoses of: post traumatic stress disorder, manic depression and anxiety. The officer filed an application for a ¾ Accidental Disability Retirement pension on the basis of his diagnosis, which the Officer claimed was a result of his work with drug cartels. The Retirement System denied his application on the basis that the event which the Officer cited to be the cause of his mental injury was not an “accident” within the meaning of the RSSL.

The Court noted that “Initially, the burden is on the party seeking accidental disability retirement benefits to demonstrate that his or her disability arose from an “accident”t within the meaning of the RSSL, and the Comptroller’s determination in this regard will be upheld if supported by substantial evidence.” After going through an analysis and considering all the requirements for an event to qualify as an “accident” as listed above, the Court decided that the cause of the Officer’s injury was not an “accident” within the meaning of the RSSL. The Court wrote “Here, [the Officer’s] mental injuries were a direct result of the stress that he was under while working undercover and interacting with informants and members of dangerous drug cartels. This dangerous undercover work was part and parcel of his regular duties as a narcotics investigator and was specifically set forth in [the Officer’s] job description. Inasmuch as the stress that produced [the officer’s] mental injuries was an inherent part of his job and was not unexpected” the event causing the mental injuries was not an accident.

Interestingly, the Court observed that this case does not benefit from the presumption that benefits first responders to the World Trade Center terrorist attacks on 9/11. This 9/11 presumption provides that mental impairments suffered as the result of the 9/11 attacks are presumed to be the result of an accident.

As always we hope that you stay safe and healthy. If you have any questions, concerns or suggestions please email mrada@fbrlaw.com or jhewson@fbrlaw.com. You can reach us by phone at 516-496-0400.

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