ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

July 18, 2014

If a preexisting dormant disease is aggravated by an accident, resulting in a disability that did not previously exist, the accident is responsible for the ensuing disability


If a preexisting dormant disease is aggravated by an accident, resulting in a disability that did not previously exist, the accident is responsible for the ensuing disability
2014 NY Slip Op 05007, Appellate Division, Third Department

A lieutenant with the Port Authority of New York and New Jersey [Lieutenant], applied for performance of duty and accidental disability retirement benefits in 2009, claiming that he was permanently incapacitated due to injuries to his back and right shoulder sustained as the result of a 2009 accident.

As to Lieutenant’s medical condition, his neurologist concluded that he suffered from a progressive narrowing of the spinal canal and, due to the 2009 accident, disc herniation was causing nerve root compression. In contrast, the Retirement Systems orthopedic surgeon concluded that the disc herniation and shoulder injury were degenerative in nature and caused by the early injuries and surgeries, rather than the 2009 accident, which had caused only a temporary exacerbation of Lieutenant's underlying arthritic condition.

The Hearing Officer recommended that Lieutenant 's applications be denied on the ground that he did not prove that his conceded disability resulted from the 2009 accident. Adopting the hearing officer’s findings and recommendation, the Comptroller denied Lieutenant’s application and he appealed.

The Appellate Division annulled the Comptroller’s determination, explaining that it has repeatedly held that "'when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability”

Although the Retirement System's expert speculated that Lieutenant had suffered a number of injuries prior to 2009, “It is undisputed that he returned to full duty” after those events and thereafter after he suffered an job-related injury in 2009.  As a result of the 2009 incident, in which Lieutenant suffered a torn rotator cuff in his right shoulder and pain in his right low back and right hip, he lost the ability to walk, and he never returned to work.

The Appellate Division noted that although Lieutenant’s previous injuries may have had resulted in some low level symptoms that he had learned to manage, there is no dispute that Lieutenant was not incapacitated prior to the 2009 incident. Although the System’s expert characterized the exacerbation of Lieutenant's underlying conditions after that point as temporary, he could not explain why Lieutenant's conceded disability had not resolved as of the date of the hearing, 3½ years after the accident.

Under these circumstances, said the court, the Comptroller's determination is not supported by substantial evidence and must be annulled.
_____________________


General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html
   _____________________  
.

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. AGAIN, 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, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com