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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

January 13, 2011

Determining eligibility for an accidental disability retirement allowance

Determining eligibility for an accidental disability retirement allowance
Matter of McCabe v Hevesi, 38 A.D.3d 1035
Matter of Wise v New York State Comptroller, 38 A.D.3d 1032
Matter of Stack v Board of Trustees of the N. Y. City Fire Dept., Art. I-B pension fund, 38 A.D.3d 562

The McCabe, Wise and Stack decisions consider the question of what constitutes an accident for the purpose of qualifying for accidental disability retirement benefits.

The courts have viewed the term “accident” for the purpose of qualifying for an accidental disability retirement allowance to mean a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” and “the precipitating event must emanate from a risk that is not an inherent element of the applicant's regular employment duties.”

1. In the McCabe case, the applicant, a police officer said that he had injured his back when he stumbled in a stairway while searching for a possible intruder. McCabe said that "I started to walk into the basement and caught [my] right foot on short step landing."* However, McCabe also testified that in the performance of his routine duties over the years, he had encountered thousands of stairways, many of which were substandard or defective. In this instance, the court said it found that substantial evidence in the record supports the retirement system’s determination that McCabe was injured by his own misstep, and did not suffer an accident within the meaning of the Retirement and Social Security Law.

2. Wise worked as a senior court officer and his regular job duties entailed, among other things, escorting criminal defendants in the courtroom and physically restraining unruly individuals. A prisoner suffered “unexpected seizure” while being escorted by Wise, who was injured as a result. The Appellate Division said that neither the “unexpected seizure” nor being injured while restraining a “combative defendant” constitute being injured as the result of an accident within the meaning of the Retirement and Social Security Law.

3. In Stack’s case, a somewhat different issue was addressed. Stack’s application for accidental disability retirement and his application of ordinary disability retirement were both rejected. Although the Appellate Division ruled that medical findings supported the determination of the Medical Board that Stack was not entitled to accidental disability retirement benefits, it found that the Board’s determination concerning Stack’s parallel application for ordinary disability retirement benefits was not supported by anything in the record. Accordingly, the court remanded the case to the Medical Board for it to reconsider its determination with respect to Stack’s application for ordinary disability retirement benefits.

For the full text of these decisions, go to:

McCabe v Hevesi
http://nypublicpersonnellawarchives.blogspot.com/2007/03/accidental-disability-retirement-what.html

Matter of Wise v New York State Comptroller
http://nypublicpersonnellawarchives.blogspot.com/2007/03/injury-involving-risk-that-is-inherent.html

Matter of Stack v Board of Trustees of the N. Y. City Fire Dept
http://nypublicpersonnellawarchives.blogspot.com/2007/03/applications-for-disability-retirement.html

* In his workers' compensation claim he reported that he "tripped [and] fell on [a] faulty interior stairway."


Public Personnel Law E-books

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A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on http://booklocker.com/books/3916.html