Correction Officers' 3/4's Disability

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

By: Sean Patrick Riordan, Esq.

Although there were only three cases involving Correction Officers’ ¾’s disability rights decided by the state’s highest courts in 2019, it was an important and impactful year. 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.

Conclusion:

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!

 

NY's Raise the Age Law Crossroads Detention Center

NY’s Raise the Age Law Creates Obstacles

NY’s Raise the Age Law progressed to its’ next phase on October 1st by raising the age of adult criminal responsibility to 18 years old. This means that the juvenile detention system will be taking on 17 year olds who have potentially committed dangerous crimes.

Previously, 16 and 17 year olds facing felony charges were tried at criminal court and were sent to Rikers. With this new law they will be processed through family court and new youth courts and be sent to Crossroads detention center run by the Administration for Children’s Services (ACS) or the Horizon juvenile center, run by the Correction Department.

After the first phase of Raise the Age centers saw a rise of assault on staff members and more than 25% rise in contraband, including weapons and illegal substances. David Hansell, ACS chief believes that the rise in contraband is in part due to their increased supervision in hopes to avoid violent situations that could occur due to weapons and illegal drugs.

ACS has plans to implement a new behavior management plan that rewards good behavior with perks such as more phone time. The Administration for Children’s Services will also be assuming management over the Horizon juvenile center, with plans to implement these new behavior tactics.

Another issue, one not expected, was overcrowding at ACS’s Nicholas Scoppetta Children’s Center as teens were sent there for housing needs and not detention as their families refused to take them back in.

Officials have been preparing for a year for this shift but still worry about potentially violent 16 & 17 year olds in less-restrictive environments and what that could mean for the safety of staff and other children in the facilities.

Sean Riordan Honored by NYCD Emerald Society

Sean Riordan Honored by NYCD Emerald Society

MDASR Partner Sean Riordan was honored by the New York City Correction Department Emerald Society as 2019 Honorary Member of the Year. Sean is an outspoken advocate for First Responders, having joined with advocacy groups and Congressional leaders to help pass legislation that affords greater health care and benefits to men and women that respond to emergency situations. Mr. Riordan is also very involved in the Irish-American community. As Past-President of the Nassau County Brehon Law Society, Board Member of the NYC Brehon Law Society and a member of The Society of the Friendly Sons of St. Patrick of Long Island, Sean has been an advocate for human and civil rights in Northern Ireland and a proponent of the continued peace process. We are proud of Sean’s commitment to fighting for the rights of injured workers in need.

NYC COBA Newsletter Features MDASR

MDASR featured in COBA NYC's April 2019 Newsletter

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP is happy to report our recent successful Workers' Compensation and Pension Disability cases representing New York City Correction Officers (NYC COBA) MDASR works closely with the NYC Correction Officers' Benevolent Association and its' Officers. We are proud to be featured in their April 2019 Newsletter. The attorneys at MDASR are committed to providing their expert experience to advocate for injured and disabled workers and receive the best possible outcome for our clients.

Closing Rikers Island would be at the expense of CO, Borough, inmate safety

One of Rikers Islands nine correctional facilities will close this summer, beginning with the George Motchan Detention Center (GMDC). In a statement from our partner, Sean Riordan, Esq., “In the Mayor’s continual attempt to close Rikers Island he has announced the pending closure of GMDC. This closure can only be viewed as creating a greater risk to the personal safety of Correction Officers throughout Rikers Island. As attacks on officers have risen drastically in 2017, further crowding of existing facilities will create untold dangers for officers in 2018 and beyond. ‘The “re-thinking’ of the city’s jail system should not be done at the expense of officer safety.”

There are more than a couple of reasons why closing the Correction Facility would not do corrections officers, inmates, or the Boroughs any good:

1) Several Borough officials and waves of community members have come out in opposition against jails being built in the boroughs. An article linked below in The Queens Gazette notes that there was potential for a new jail that would be built within proximity to several schools in the Bronx.

2) With the expanse of over 400 acres and 9 buildings that is Rikers Island, many are saying that the proposed replacement buildings in the Boroughs could not house anywhere close to the reduction goal of 5,000 inmates. An alternative is to renovate the facilities. These same renovations were cited as reasons to close the jails, as proposed in the past by NYS Chief Justice Jonathan Lippman.

3) Downsizing has already been positively correlated to spikes in violence, according to statistics from 2017. This has to lead one to ask, what would even further downsizing do?

In the article on qgazzete.com, “Former New York State Chief Justice Jonathan Lippman led a study performed by the Independent Commission on New York City Criminal Justice and Incarceration Reform Commissioners that determined the reasons for closing Rikers Island are as follows: dilapidated buildings; lack of visitor access to the facility for inmates’ family members; significant time and resources needed to ferry individuals to and from the courts; and the lack of private, safe spaces to provide detainees with effective on-site programming.” These are all things that could take place without the displacement of inmates and Corrections Officers and the raising of new jails throughout boroughs.

With the staggering budget needed to rehouse inmates and rebuild new jails, renovations could take place, as Queens Councilmen Bob Holden suggested after a tour of Rikers according to the Queens Gazette. As cited on QNS.com, “…the combined capacity of the borough jails is estimated to be 2,300, so Holden believes the nearly $11 billion cost of renovating and expanding them would be too high.” That combined capacity is less than half of the Mayor’s reduction goal. Keeping that same budget within Rikers Island to update it would be a significantly more productive, and by all accounts safer, allocation of money and time.

An article on NY Post notes that most recently, Mayor de Blasio is suing Governor Cuomo over an order that forces an expedited closure of the Robert N. Donovan Detention Center (RNDC). Housing primarily teenagers, closing RNDC could displace them into facilities with adults, removing them from classroom settings within the RNDC. These same programs have had a proven, positive effect on inmates. Shortly after that information was released, another CO was slashed in the face; this comes just a few weeks after the orchestrated attack on Officer Jean Souffrant.

Links

NYC to Close One Jail on Rikers Island This Summer

First Rikers Island jail to close in summer as part of city’s 10-year plan to shut down the complex

Rikers Island Shutdown Meeting Draws Large Crowd

‘There are no advantages’ to closing Rikers Island, two Queens officials say at prison panel

De Blasio sues to block Cuomo from closing Rikers facility

Correction officer slashed by inmate at Rikers hours after public hearing about violence against employees

Mayor to close GMDC at Rikers

NYC to Close One Jail on Rikers Island This Summer

First Rikers Island jail to close in summer as part of city’s 10-year plan to shut down the complex

Mayor de Blasio’s plan to close Rikers Island will break ground this summer at the George Motchan Detention Center. Officials working with Mayor said GMDC was chosen as the first due to structural reasons.

The Rikers Island jail population takes up the lion’s share of the citywide jail population-roughly 7,000 to the city’s almost 9,000. The Mayor had little to say about how a large spike in violence in 2017 ran concurrent to the downsizing. Closing the jail would create astronomical problems for inmates and CO’s alike, and already has.

In a statement from our partner, Sean Riordan, Esq., “In the Mayor’s continual attempt to close Rikers Island he has announced the pending closure of GMDC. This closure can only be viewed as creating a greater risk to the personal safety of Correction Officers throughout Rikers Island. As attacks on officers have risen drastically in 2017, further crowding of existing facilities will create untold dangers for officers in 2018 and beyond. The “re-thinking” of the city’s jail system should not be done at the expense of officer safety.”

“With vicious assaults on correction officers occurring nearly every week, along with a near 30% increase in inmate-on-inmate slashings and stabbings department-wide, we had hoped Mayor de Blasio would have announced a plan today to make the jails safer,” said Correction Officers’ Benevolent Association President Elias Husamudeen.”, quoted from NY Daily News.