Wednesday, November 13, 2013

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related


Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related
2013 NY Slip Op 07254, Appellate Division, First Department

A number of statutes providing disability retirement include a rebuttable presumption that the claimed disability was incurred in the performance of the applicant’s official duties. For example, General Municipal Law §207-kk provides that with respect to a disability “caused by cancer” by certain firefighters constitutes “presumptive evidence that [the cancer] was   incurred in the performance and discharge of duty unless the contrary be   proved by competent evidence.”

In this appeal a New York City police officer, [Applicant] challenged the denial of her application for World Trade Center [WTC] accidental disability retirement benefits based on her claim to have suffered the disability as defined by Retirement and Social Security Law §2(36) as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site.

One of arguments advanced by Applicant was that Supreme Court “improperly” shifted the burden of proof to her.

The Appellate Division ruled that the lower court had not shifted the burden of proof to her, explaining that Applicant “was not entitled to the statutory WTC presumption that her condition or impairment of health was incurred in the performance and discharge of duty” because, she failed to demonstrate that she was present at the WTC site and she failed to demonstrate a qualifying WTC condition as defined by Retirement and Social Security Law.*

The Appellate Division said that there was credible evidence that Applicant “was not present at the World Trade Center (WTC) site during the requisite time period” in that the appointing authority had shown that ”there were no contemporaneous records, roll call or command logs, records of the Medical Division, or exposure logs, indicating that [Applicant] was present at the WTC site.”

* Further, §13-252.1 of New York City’s Administrative Code was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "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 decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_07254.htm
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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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