Determining the disability benefits due a firefighter as the result of a work-related injury can be complex
McKay, however, was latter found eligible for such GML §207-a(1) benefits but, prior to that determination being promulgated, McKay commenced receiving performance of duty disability retirement benefits from the New York State and Local Police and Fire Retirement System. As a result, McKay was no longer eligible for GML §207-a(1) disability benefits.
In 2012, Supreme Court granted McKay’s petition in part and directed the Village to pay McKay GML §207-a(2) benefits retroactive to the effective date of his performance of duty disability retirement in 2010, "pending a determination consistent with due process" as to whether GML §207-a(2) supplemental benefits should be terminated.
In February 2014 Supreme Court issued a judgment that awarded McKay $67,830.69 in retroactive benefits, interest and costs. The Village appealed the Supreme Court’s 2014 ruling.
The Appellate Division agreed with the Village's contention that the lower court had erred in calculating "retroactive benefit," holding that “the award of retroactive benefits cannot stand.”
The court explained that although the Village was not required to pay McKay his full salary as of the date that he was granted performance of duty disability retirement benefits, he was entitled to the difference between the amounts received as his retirement allowance and the amount of his regular salary or wages that he would have otherwise received had he not retired from the Village "until such time as he shall have attained the mandatory service retirement age applicable to him or shall have attained the age or performed the period of service specified by applicable law for the termination of his service."
The Appellate Division also said that Supreme Court’s 2012 judgment, and its affirming thereof, “make clear that [McKay] was entitled to receive the benefits afforded by GML §207-a(2) until a due process hearing could be conducted to determine whether those benefits should be terminated.”