Performing light duty may impact on eligibility for disability retirement

Performing light duty may impact on eligibility for disability retirement
Perez-Dunham v McCall, 279 AD2d 884

In June 1996, police officer Magarita Perez-Dunham applied for performance of duty disability retirement benefits based upon an injury sustained in November 1993.

The application was rejected on the ground that although Perez-Dunham's disability prevented her from performing the full duties of a police officer, she was not disabled from performing the light duties that she had been performing for more than two years prior to her application.

The Appellate Division pointed out that in the event an applicant for disability retirement benefits is serving in a light-duty assignment, the application must be determined on the basis of the applicant's ability to perform a full-duty assignment unless the applicant has served in a light-duty assignment for two years or more prior to the date on which the application was filed.

If the applicant has performed light duty for two or more years, his or her application must be reviewed on the basis of his or her ability to perform the light-duty assignment.

The Appellate Division ruled that the testimony of the police surgeon that Perez-Dunham was assigned to light duty following her injury provided substantial evidence to support the conclusion that she performed light duties for more than two years prior to her filing her application. While the surgeon conceded that petitioner might have returned to full duty briefly, this was consistent with Perez-Dunham testimony that before being assigned to light duty, she returned to full duty for about six months.

Finding that Perez-Dunham had been assigned and performed light duty for two or more years, the Appellate Division dismissed her appeal from the Comptroller's determination.