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Tuesday, July 19, 2011

Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)


Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)
Tortorello v McCall, App. Div., 286 AD2d 841, Motion for leave to appeal denied, 97 NY2d 607

Roni Tortorello's husband, who was employed as a lieutenant in the Rockland County Sheriff's Department, collapsed at home after jogging earlier in the day and was pronounced dead at a hospital emergency room. The cause of death was listed as coronary occlusion due to coronary arteriosclerosis and thrombosis, with a prior myocardial infarction listed as a contributing condition.

The New York State Employees' Retirement System [ERS], concluding that Lt. Tortorello had not sustained an accident in service on the date of his death, rejected his widow's application for an accidental death benefit. ERS determined that Lt. Tortorello's death occurred at home on his day-off after jogging and thus was not the result of an accident sustained while in service.

Tortorello's widow sued, claiming that she was entitled to accidental death benefits because Section 557 of the Retirement and Social Security Law provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence”.

The Appellate Division disagreed with this theory, noting that the relevant statutory “heart presumption” clause provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence.” Accordingly, the “heart presumption” is a rebuttable presumption.

Here there was no medical evidence identifying any particular work-related incident as a possible cause of Lt. Tortorello coronary occlusion. Under these circumstances, and because it is not necessary that all possible accidental causes be disproved in order to rebut the statutory presumption, ERS could rationally focus on the day of Lt. Tortorello fatal cardiac event as the date of the presumptive accident. In effect, the court concluded that under the facts in this case, ERS had “rebutted the presumption.”

The court ruled that since the day on which he suffered the heart attack was a scheduled day off for Lt. Tortorello and as there was no evidence that he actually performed any of his police duties that day, ERS could rationally conclude that decedent did not sustain an accident in service on that day.

The Appellate Division commented that ERS has interpreted the “in service” requirement for an accidental death benefit as the equivalent of the “in service” requirement for accidental disability benefits ... and that it saw no basis to disturb that interpretation.

The court's conclusion: Tortorello's claim that the stress of late husband's duties caused or contributed to his disease of the heart and resulting coronary occlusion is unsupported by any medical evidence in the record. Further, risks inherent in her late husband's routine police duties are not accidental in nature.

In identical language, Retirement and Social Security Law Section 363-a(1) provides a “heart presumption” for firefighters. Presumably the court's rationale in deciding the Tortorello case would be applied in a similar situation involving a firefighter.

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/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

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

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

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