Tuesday, July 12, 2011

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance
Matter of Jetter, 288 A.D.2d 591 [see also Jetter v. McCall, 241 A.D.2d 746; Jetter v. Hevesi, 5 A.D.3d 941]

The Jetter case points out that although an applicant for disability retirement benefits has the burden of demonstrating his or her eligibility for such benefits, there must be substantial evidence in the record to support the Retirement System's rejection of the application.

New York State Trooper Roy P. Jetter discovered that he was awarded in-service disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] Section 363-b (b) (2) (b), rather than pursuant to RSSL Section 363-b (b) (2) (a). Benefits received pursuant to Section 363-b (b) (a) apparently are treated more favorably for Federal personal income tax purposes.*

Jetter asked the Retirement System to reconsider its determination. The System decided that although Jetter's disability indeed was casually related to the October 1992 incident, such incident did not occur while he was “in service” and, therefore, he was not entitled to in-service benefits. Jetter appealed.

The Appellate Division noted that to be eligible to receive benefits under Section 363-b (b) (2) (a), Jetter had to establish that he sustained an in-service disability. Jetter's attorney, however, elected to object to the System's interjection of the in-service issue instead of offering proof concerning the issue. This tactical decision, said the court, does not entitle Jetter to a new hearing.

Notwithstanding this, the Appellate Division concluded that the System's “underlying determination is not supported by substantial evidence” and thus Jetter was entitled to a re-hearing because of this.

The only evidence presented on the in-service issue came from (1) Jetter's application for benefits, in which the then Superintendent of the State Police indicated that his injury was sustained while Jetter was “on-duty”; and (2) Jetter's hearing testimony during which he stated that “[w]ith the police department and the use of the [government] vehicle[s], you are on duty when you leave your house and begin to drive.”

While the System was free to reject any or all of Jetter's testimony on this point, its determination “must still be supported by substantial evidence in the record, which would include evidentiary facts and inferences which could fairly be drawn therefrom.”

As the record did not contain any evidence concerning Jetter's regular work schedule or assigned duties, his specific schedule and assigned tour on the day of the incident or whether he engaged in any work-related activities while he was en route to his office, the System's finding that Jetter's injury occurred “before [he] was scheduled to begin his tour” cannot stand.

Significantly, the court said that although Jetter had not entered his place of employment prior to sustaining the disabling injury, that fact, standing alone, does not constitute substantial evidence to support the underlying determination, and cross-examination of Jetter did not result in the elicitation additional facts from which it could be inferred that Jetter was not in service at the time he was injured.

The court's conclusion: Since the record made before the Retirement System did not have sufficient evidence to make a reasoned determination concerning whether or not Jetter had been injured “while in-service,” this case had to be returned to the Retirement System “for a further hearing on that limited point.”

* RSSL retirement benefits are not subject to New York State personal income tax.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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. 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 DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

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 in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.