Friday, July 17, 2015

Using the job description of the individual assigned to light, limited or restricted duty in determining eligibility for disability retirement benefits


Using the job description of the individual assigned to light, limited or restricted duty in determining eligibility for disability retirement benefits
2015 NY Slip Op 04557, Appellate Division, Third Department

The Comptroller denied a retirement system member’s [Member] petitioner's for disability retirement benefits. Member had sustained multiple injuries in a 2008 motor vehicle accident and, upon his return to work on July 30, 2008, was placed on limited-duty assignment. Member, a detective, had not returned to his full duties and was absent on multiple occasions for varying periods due to his injuries.

In November 2010, Member applied for accidental disability retirement benefits. The Comptroller, ruling that the light duty standard set out in 2 NYCRR 364.3(b)*was applicable, found that Member was not permanently incapacitated from the performance of his duties and denied his application.

Member then initiated a CPLR Article 78 proceeding challenging the Comptroller’s decision.

Member contended that because he was not continuously assigned to light duty work for a period of two years given that the employer placed him on "no duty" assignment during the periods that he was absent from work the Comptroller improperly measured his application against the light duty standard rather than his "full duties" as a detective. The Appellate Division disagreed.

The court explained that where an applicant "'has been continuously assigned to light, limited or restricted duties for at least two years prior to the date [of his or her] application, the determination of permanent incapacity is to be based upon 'such light, limited or restricted duty assignment' rather than full duties." Continuously assigned, in this context does not mean continuous performance and is not interrupted by absence from work [due to the injuries], which, said the court, is a rational, reasonable reading of the regulation.

Noting that the record establishes that Member's absences from work were due to his injuries and not as the result of any reassignment of duties by the employer, the Appellate Division sustained the Comptroller’s application of the regulation.

* Subdivision (b) of NYCRR §364.3, Job descriptions for individuals assigned to light, limited or restricted duty, provides that “In the case of an applicant who, in connection with an alleged illness, disease, disability or physical limitation, has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits was filed with the Comptroller (whether or not the assignment was made pursuant to an organized light duty or restricted duty program) the employer shall provide a written description of the duties and/or physical or psychological job requirements which have been applicable to the applicant since such reassignment to light, limited or restricted duties. With respect to such applicants, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

The decision is posted on the Internet at:


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

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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