Wednesday, December 21, 2011

Firefighter injured in an altercation with another firefighter during a New Year’s party at the firehouse denied accidental disability retirement benefits


Firefighter injured in an altercation with another firefighter during a New Year’s party at the firehouse denied accidental disability retirement benefits
Matter of Matter of Walsh v Scoppetta, 2011 NY Slip Op 09160, Court of Appeals

A New York City Fire Department firefighter got into a "loud and heated" argument with a fellow firefighter in the kitchen of the firehouse in the course of a New Year’s Eve party. Their dispute, as characterized by the Court of Appeals was ”fueled by the prohibited consumption of alcohol [and] escalated from mutual taunting and provocative insults to assault when the other firefighter hit Walsh over the head from behind with a metal chair, knocking him to the floor.”

Walsh was subsequently diagnosed with a postconcussional disorder, entailing "sensory nerve dysfunction on his face and leg, headaches, and memory, concentration and sleep disturbance" and the New York City Fire Commissioner ultimately filed an application for ordinary disability retirement* on his behalf. Walsh, however, filed an application for accidental disability retirement,** which provides greater benefits than ordinary disability retirement.

The Medical Board recommended that the New York City Fire Department Pension Fund’s Board of Trustees grant Walsh ordinary disability retirement benefits rather than accidental disability retirement benefits.

As the Board deadlocked on the question of approving Walsh’s application for accidental disability retirement, he was retired with ordinary disability retirement benefits.
 
Walsh then filed an Article 78 petition seeking to annul Board's denying him a line-of-duty accidental disability retirement. Supreme Court dismissed Walsh’s petition, which ruling was affirmed by the Appellate Division (see 73 AD3d 1192).

The Court of Appeals affirmed the lower courts’ rulings, explaining that “We may not set aside the Board of Trustees' denial of accidental retirement on the basis of a tie vote "[u]nless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident.”

Noting that Walsh’s injuries resulted solely from an altercation with a fellow firefighter rather than his performance of any job duties, the Court said that it need not consider and did not decide whether, or under what circumstances, injuries caused by the intentional act of a third party are accidental within the meaning of §13-353 of the New York City Administrative Code.

* §13-352 of the New York City Administrative Code, Retirement for ordinary disability, is posted on the Internet at:


** §13-353 of the New York City Administrative Code, Retirement for accident disability, is posted on the Internet at: http://codes.lp.findlaw.com/nycode/ADC/13/3/2/13-353

The decisions is posted on the Internet at:


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/

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