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April 17, 2014

Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly



Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly
Anonymous v Kelly, 2014 NY Slip Op 02141, Appellate Division, First Department

Rejection of Anonymous’ application for accidental disability retirement benefits was affirmed by Appellate Division, vacating a ruling by Supreme Court remanding the matter to the Retirement System’s Board of Trustees.

The court said that Supreme Court “incorrectly found that [Anonymous] was entitled to the presumption of General Municipal Law §207-p, thereby improperly shifting the burden of proof as to causation to the employer.

General Municipal Law §207-p provides, in pertinent part, that "any paid member of a . . . police department . . . who successfully passed a physical examination upon entry into the service of such department who contracts HIV [parenthetical omitted], tuberculosis or hepatitis, will be presumed to have contracted such disease as a natural or proximate result of an accidental injury received in the performance and discharge of his or her duties . . ., unless the contrary be provided by competent evidence."

Although Anonymous did not suffer from any of the three diseases named in the statute, Supreme Court found that his "illness was the type that the 207-p presumption was intended to cover."

However, said the Appellate Division, “the plain language of the statute makes it clear that the presumption is only applicable to the three named diseases.” Accordingly, said the court, it was Anonymous' burden to prove that his condition was caused by an accidental line-of-duty injury, not the employer’s burden to demonstrate that his condition was not caused by an accidental line-of-duty injury.

The decision is posted on the Internet at:

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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