ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

March 31, 2011

Smoke breaks ruled off-duty activity

Smoke breaks ruled off-duty activity
Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756

Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties.

In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits.

Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked.

ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS’ determination.

Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS’ conclusion that Eckerson’s representation that he went to the smoking area to conduct official business was not creditable.

The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a “slip and fall” on their employer’s premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where:

1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779];

2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and

3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756].

The Appellate Division said that it found nothing irrational in ERS’ applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time.

On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence.

In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS’s discretion to evaluate the differing medical opinions and resolve the conflict against the applicant.

The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson’s case.
.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com