2019 Correction Officers’ 3/4’s Disability Pensions: Year-in-Review

By: Sean Patrick Riordan, Esq.

The Court of Appeals (the highest court in New York State) decision in Walsh v. DiNapoli expanded the Comptroller’s interpretation of “act of an inmate” and, therefore, expanded the disability coverage provided to Correction Officers when they are injured in the course of their duties. Contra-positively, The Appellate Division 3rd Department’s decisions in Echevarria v. DiNapoli and Elrodt v. DiNapoli affirm some of the more difficult procedural hurdles faced by Correction Officer’s attempting to prove their cases for Correction Officers’ 3/4’s Disability benefits.

Walsh v. DiNapoli:

Certainly the most important case of the year, the Court of Appeals decision in Walsh v. DiNapoli has clearly expanded the disability rights of Correction Officers. Admittedly, I was very concerned about this case and its potential outcome, but am ecstatic about the Court’s final, and proper, decision.

To understand the Court’s decision one must understand the language of the ¾’s statute itself. The Performance of Duty Disability (“POD”) statutes call for payment of a ¾’s disability benefit to a correction officer who becomes “permanently incapacitated by, or as the natural and proximate result of any act of any inmate or any person confined in an institution under the jurisdiction of the” Department of Corrections. Prior to 2016 the Comptroller interpreted the term “act” to require that an inmate intend to harm a Correction Officer with their “act.” In Traxler v. DiNapoli the 3rd Department found that the Comptroller’s interpretation was unreasonable and that as long as the inmates act itself was “volitional”, the resulting harm to the Correction Officer did not need to be intended. In other words, as long as the inmate intended to perform “an act” they did not need to intend to hurt the Officer. The question that was raised in Walsh v. DiNapoli was: What if the inmate’s “act” itself was not intended? Can an Officer obtain disability benefits if they are injured by an inmate’s non-intentional actions?

In Walsh an inmate was removed from a courthouse by a Correction Officer transport team due to the inmate’s unruly, and likely substance induced, behavior. Officer’s observed the inmate to be unsteady on her feet when they walked her out of the courthouse and loaded her into the transport van. Upon arriving at the correctional facility Officers instructed the inmate to exit the van. Following “one or two” steps the inmate tripped and fell out of the bus, landing on Officer Walsh and causing substantial injury to her back, neck and shoulder. Upon filing for disability benefits from the Retirement System, the Comptroller denied her claim with a finding that the occurrence described was not the “act of an inmate” because the inmate’s actions were “non-volitional.” Said another way, because the inmate did not mean to fall no inmate “act” was performed.

On appeal the Appellate Division upheld the determination denying benefits, finding that the legislative intent of the Correction Officer’s ¾’s bills was to provide disability benefits to Officer’s due to their daily interactions with violent and anti-social inmates. Therefore, if an inmate does not “intend” to perform their “act” they are acting neither violently nor anti-socially and benefits don’t apply. This is the thought process that the Court of Appeals overturned.

The Court found that the “plain meaning” of the word “act” encompasses both voluntary and involuntary actions. Where unambiguous words are used by the legislature, the courts will, and must, apply their plain meaning. Therefore, the plain meaning of the statute calls for coverage even when the inmate did not mean to perform the act. In Walsh, the inmate did not intend to fall, but her “act” of falling still affords disability coverage to Officer Walsh.

Further, and probably even more important for future appeals, the Court took issue with the Appellate Division’s interpretation regarding legislative intent. The Court notes that the legislature used broad terms such as “any act” when it wrote the ¾’s statutes. Further, the legislature was intentionally expanding disability coverage for Correction Officers when they wrote the statutes; a reading of the statute in a manner that limits that intent would undermine what the legislature was purposely doing.

While the vast majority of Correction Officers’ injuries are incurred by volitional inmate actions and not un-intended inmate actions, the Walsh decision is an excellent decision for Officers state wide. In addition to the expansion of coverage for “involuntary actions” I plan on using the language of the decision to attack other Comptroller interpretations of the Correction Officers’ 3/4’s Disability statutes. Stay tuned.

Elldrodt v. DiNapoli:

A short and to the point decision regarding the Correction Officer’s “Heart Bill”, the case is a good reminder of a basic premise of the law that applies to all disability bills. In 2013 Officer Elldrodt applied for ¾’s Heart Bill alleging disability due to a heart impairment. Later in 2013 the Retirement System sent the Officer for an examination with its Independent Medical Examiner (“IME”). The IME found that the Officer did not have a permanently disabling heart condition and could return to work as a CO. On appeal, the Officer (and his attorney) relied on his treating cardiologist’s opinion that he is disabled from Correction Officer work. However, such cardiologist did not start treating the Officer until 2016 and admitted in his testimony that he could not state that the Officer was disabled at the time he filed his application in 2013.

The Court points to this basic fact in its decision and re-affirms the legal point that an applicant for disability must prove that they are disabled at, and from, the date that they submit their application for disability benefits. In other words, at the moment an Officer submits their claim for disability benefits they are asserting that they are disabled and have the burden of proof to establish this point. If you can’t prove that you are disabled from your full duties from the date you submit your application, you are not entitled to disability benefits pursuant to regulation.

This often arises with officers that come in for initial consultation and are frustrated by my opinion that their case is not yet ready to file, despite the officer’s “feeling” that they will never again be able to perform their full duties. While the officers’ feelings may well be warranted and prove to be true, it is extremely important that we be able to prove that the disability is “permanent” and that the officer has undergone all remedial measures at the moment of filing. The timing of a filing is extremely important and should never be underestimated.

Echevarria v. DiNapoli:

The Echevarria decision is one that I hesitate to discuss simply because its finding is as confusing and poorly explained as any I have seen in recent memory. In short, Echevarria claimed to be permanently incapacitated due to a knee injury incurred during inmate relate occurrences in 2001, 2006, 2007 and 2010. Prior to becoming a CO the Officer had reconstructive surgery to the same knee in 1995. The Officer’s treating orthopedist testified that the inmate related occurrences were the cause of Echevarria’s disabling knee condition and that each occurrence had aggravated or exacerbated an underlying, pre-existing knee condition.

Although the System’s IME stated that Echevarria is disabled, he placed the cause of such disability on the 1995, pre-employment, surgery. He opined that the 1995 surgery caused osteoarthritic development in the knee and such osteoarthritis is the cause of the Officer’s current disability.

The reason that I question this decision is that the Court points out that the IME testified on cross-examination that the subsequent inmate related injuries “aggravated or exacerbated” the underlying condition, and in fact stated that each of the inmate related events were a “contributing factor” in Echevarria’s disability. This testimony mirrored the testimony of Echevarria’s treating doctor.

This goes to the heart of a long-standing legal rule that when “an injury permanently aggravates or exacerbates an underlying pre-existing, asymptomatic, condition, the injury is the legal cause of the permanent disability.” Essentially, if you have a pre-existing condition but such condition is not causing any symptoms, and then an injury occurs which causes permanent symptoms to exist, the injury is the cause of the disability.

The Hearing Officer disregarded the findings of both doctors that the inmate related events aggravated or exacerbated the underlying osteoarthritis and found that the disabling knee condition was entirely due to the 1995 surgery. The Appellate Division upheld such decision as rational. The Court grounds such rationality in the Hearing Officer’s finding that Echevarria was able to keep working for another 9 years after his first inmate related occurrence and that osteoarthritis is a progressive condition.

Because the Hearing Officer found that there was no aggravation or exacerbation caused by the subsequent inmate related injuries, the case can’t be read as directly attacking the previously explained legal rule of “permanent aggravation or exacerbation” but it certainly raises some serious concerns. First, how is the Hearing Officer’s decision grounded in “substantial evidence” if both doctors agree that the inmate related occurrences “aggravated or exacerbated” the underlying osteoarthritis? Is the Court saying that a Hearing Officer can simply disregard the opinions of medical experts and insert his own, un-trained, medical opinion into the decision? Further, what legal difference does it make that Echevarria kept working for another 9 years post the first inmate related occurrence if he sustained other inmate related occurrences, especially one in the last year he worked?

While the decision of Echevarria v. DiNapoli clearly raises some genuine concern, I am choosing to read this decision (perhaps optimistically) as simply a poor recitation of the testimonial evidence. Although I have never seen the hearing transcripts in this case, and the Court never says this, I have a sneaking suspicion that the IME actually testified that the inmate related events only “temporarily” aggravated the underlying knee condition, not causing permanent damage. If the aggravation or exacerbation is not “permanent” then the legal rule does not apply. I certainly hope that this proves to be an accurate hunch, otherwise the Echevarria decision may be as important to Correction Officers’ 3/4’s Disability cases as the Walsh decision.


As always, if you have any questions about your disability rights don’t hesitate to call me at (212)612-3198 or email me at Sean@nycomplaw.com.

Have a healthy and safe 2020!