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.