By: Sean Patrick Riordan, Esq.
2019 was a relatively slow year for Police Disability pensions, especially when compared to 2018 which brought the groundbreaking Kelly v. DiNapoli decision. The Appellate Division decisions didn’t break new precedential ground, but they did continue to illuminate what is, and will be, considered an “accident” for ¾’s purposes. They also continued to highlight two important areas of every disability application: 1) Contemporaneous Documentation of an injury is vitally important and 2) Officers are not “in service” for disability pension purposes until they start their shift or otherwise are performing their police duties.
Even more importantly, and in keeping with my theory that Kelly v. DiNapoli opened up “slip & fall” to greater ¾’s consideration, the Court found that unseen and unknown hazards that cause a slip and fall injury can be ¾’s eligible.
Accidental Nature of Injuries Cases:
The Appellate Division 3rd Department’s first case of 2019, Buckshaw v. DiNapoli, dealt with multiple accidental issues. The Police Officer testified that while he was restraining an EDP the carpet suddenly shifted under his feet due to poor installation. As a result, he fell and severely injured his leg. However, the officer’s contemporaneous documentation, and that of his fellow officer, told a different story. The incident and injury report noted that the Officer’s legs became entangled with the EDP’s, causing him to fall and become injured. The fellow officer’s report also stated these facts as the cause of his injury. Although the Court interestingly noted that the Officer’s testimony would have constituted an accident, his contemporaneous documentation did not. Instead, the restraint of an unruly individual is an “inherent risk” of a Police Officer’s duties and therefore not an “accident” for ¾’s purposes.
In Selke v. NYS Comptroller a Trooper was found not to have sustained an “accident” when he injured his back while securing a spare tire in the truck of his police vehicle. The Court found, and the Trooper had testified to, that the securing of a tire was a “routine duty” and injury incurred during such duties cannot be considered an “accident.”
In one of the more important cases of the year, Angelino v. NYS Comptroller, the Court found that although the Police Officer did not sustain an “accident” for ¾’s purposes the Retirement System must remand the case because their doctor failed to review all relevant medical testing. This is yet another case where the Officer’s testimony differed from his initial injury reports and the Court found that the Retirement System is free to give more weight to the contemporaneous documentation than the later testimony.
More importantly the Court found that the Retirement System’s Independent Medical Examiner (IME) failed to review an EMG that the Officer had undergone. The Officer’s treating doctor relied on this EMG as a basis for his finding that the Officer is permanently incapacitated. Because the Retirement System can only rely upon the opinion of its IME when such IME performs a physical examination and “reviews all relevant documentation”, the Court found that the IME’s opinion was lacking because he failed to review the single EMG report. This case represents a real procedural victory for Police Officers and will be relied on heavily by attorneys.
In the “slip and fall” case referenced above, Lewis v. NYS Comptroller, an officer reported to a motor vehicle accident after 5 inches of snow had fallen and had yet to be plowed. After his arrival on the scene 2 additional car accidents transpired. While walking over to the site of the 3rd accident applicant stepped into a snow covered pothole, calling and severely injuring himself. The Court found that the pothole represented an unseen and unknown hazard and was therefore an “unexpected and unanticipated” accident.
The State’s attorney also raised the issue of contemporaneous documentation in the Lewis case, noting that the initial injury report did not include any statement of a “pothole.” Importantly, the Court found that additional details regarding an accident are not, in and of themselves, contradictory of initial reports. Only where the additional facts contradict earlier statements does an issue of credibility arise. Further, the Court pointed out that the Officer may not have initially known that he stepped into a pothole since it was covered by snow. In this regard, the Court’s finding is extremely important; an Officer can add additional relevant facts to their disability applications as long as such additional facts do not undermine what was originally written.
“In Service” Cases:
The issue of whether an Officer is “in service” for disability pension cases arises several times a year (believe it or not). Although the rule associated with “in service” is long standing, 2 Appellate Division cases reiterated the point this year, Verille v. Gardner and Rosario v. NYS Comptroller.
In Verille, the Officer testified that he left his office before the end of his shift because he was headed to speak to a Confidential Informant. Further, the Officer alleged that the CI was related to an internal affairs investigation and, as a result, he did not inform anyone where he was going, nor did he complete any reports or write any notes about where he was heading. While heading to this alleged meeting the Officer was involved in an MVA and seriously injured. The Retirement System denied his application stating that the Officer was simply heading home and was no longer “in service” at the time of his injury. The Court upheld the determination, finding that the Officer bears the burden of proof in a disability retirement case and was unable to offer any proof that he was going to meet the CI. The moral of this story is, always let at least one person know where you are going!
In Rosario the Officer alleged that he was injured in the course of his duties while walking on Police Department property. During his testimony the Officer stated that he slipped and fell while walking into the precinct before the start of his shift. The Court upheld the System’s denial on the ground that an officer is not “in service” until they start their tour of duty or are otherwise engaged in police duties. Moral of this case is, if you are inured prior, or after, your tour of duty, make sure you specifically note how and why you should be considered to be engaging in police activity in your initial injury report.
Permanent Incapacity Cases:
Although I do not usually address permanent incapacity cases in these updates because they typically boil down to which doctor the judge believed, the Appellate Division decision in McGowan v. DiNapoli is significant for several reasons.
McGowan was a Deputy Chief of a department who applied for disability retirement and simultaneously took his service retirement. Upon retirement McGowan took a job as a government contractor, conducting back ground checks. The Retirement System’s IME stated that McGowan should be considered disabled from his Deputy Chief position only if such position required hands on police work such as arrests and field work. However, the IME stated that if the Deputy Chief position was largely sedentary, like his government contractor work, then he should not be considered disabled. The Retirement System denied the application, finding that McGowan’s Deputy Chief position was sedentary in nature.
The Court upheld the determination denying disability benefits, agreeing that McGowan’s position could be considered sedentary because he had not engaged in “regular performance of police duties, including arrests, within the year prior to his retirement.”
This case is a bit disturbing as there is no statutory or regulatory basis regarding the “1 year before retirement” that the Court references. It appears that this new standard was created out of thin air.
Just as importantly, and something that I discuss with Officers all the time, what an officer does for employment can affect their disability retirement. Here, the IME clearly found that the post-retirement work being performed by McGowan was to similar (in terms of physical demand) to his prior work. Officers should always consider this if they are planning on starting new employment while their disability pensions are pending.
As always, if you have any questions or concerns regarding your Police Disability Pension, or are injured in the course of your duties, do not hesitate to contact me at (212) 612-3198 or email me at Sean@nycomplaw.com.
Be well and be safe!