July 18, 2016

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits 
Sica v DiNapoli, 2016 NY Slip Op 05420, Appellate Division, Third Department

An accident, for the purposes of the Retirement and Social Security Law [RSSL], is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”* that “must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties.”**

Pat Sica, a firefighter with the City of Yonkers Fire Department for approximately 17 years, was injured when he was exposed to and inhaled carbon monoxide and cyanogen chloride, both colorless and odorless gases, while responding to an emergency at a supermarket. Subsequently Sica filed an application for accidental disability retirement benefits based upon, among other things, the supermarket incident.

The Retirement System denied Sica’s application on the ground that the supermarket incident did not constitute an accident within the meaning of RSSL§363. Sica appealed the System's decision and at the administrative hearing that followed he testified that in the course of his responding the medical emergency call from a local supermarket reporting an individual experiencing difficulty with breathing:

[1] he was directed to the walk-in freezer located at the back of the supermarket where he discovered two unconscious individuals:

[2] he provided cardiopulmonary resuscitation and breathing assistance to the unconscious victim inside the freezer until an ambulance crew arrived to assist;

[3] he had not smelled, heard, or saw anything that might have indicated that chemical gases or fumes were involved in the medical emergency; and

[4] he did not learn that chemical gases were present at the scene until he himself was transported to a hospital for medical evaluation.

The Hearing Officer concluded that the incident was an accident within the meaning of the RSSL as "[t]he combination of unforeseeable and exigent circumstances made it virtually impossible for [Sica] to recognize the danger." The Comptroller, however, ultimately sustained the initial denial of Sica's application for accidental disability retirement. Sica then commenced an Article 78 proceeding challenging the Comptroller's determination.

In analyzing Sica’s appeal of the Comptroller’s decision, the Appellate Division said:

[1] An applicant for accidental disability retirement benefits has the burden of establishing that the event producing the injury was an accident; and 

[2] The Comptroller's decision denying the application for accidental disability retirement benefits will be upheld where it is supported by substantial evidence. 

Here, however, the Appellate Division found that the Comptroller’s determination that the incident was not an accident for the purposes of eligibility for accidental disability retirement benefits was not supported by substantial evidence in the record before it.  

The court explained that it has "held that exposure to toxic fumes while fighting firesis an inherent risk of a firefighter's regular duties." In Sica’s situation, however, unlike its consideration of prior cases involving exposure to toxic gases or smoke, the Appellate Division noted that Sica was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases.

The record indicates that Sica “was neither aware that the air within the supermarket contained toxic chemical gases … nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket.” 

In contrast, the Comptroller, in reversing the Hearing Officer’s determination, relied upon the job description for Sica’s position, which indicated that he was required to respond to medical emergencies and to be exposed to hazardous conditions such as fumes and toxic materials.

Relying on such a job description, said the court, “may wholly eviscerate accidental disability retirement protection for emergency responders in rescue situations,” explaining that “if a broadly written job description that requires the rescue of individuals in hazardous situations is allowed to replace a factual analysis of the particular circumstances of each incident, those who put themselves in harm's way may be left without recourse.”

Accordingly, the court opined, “Whether an incident is so ‘sudden, fortuitous . . ., unexpected [and] out of the ordinary’ … that it qualifies as an accident within the meaning of the [RSSL] remains a factual issue that should not be determined merely by reference to job descriptions.” 

Clearly the mischief in merely considering the job description is that emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of their injury may be. This, said the court,  “cannot have been the Legislature's intent in establishing the accidental disability retirement program for rescue workers.”

The Appellate Division concluded that the Comptroller’s determination that Sica’s disability resulting from his exposure to carbon monoxide and cyanogen chloride while responding to a “medical emergency” did not constitute an accident within the meaning of Retirement and Social Security Law §363 was unsupported by substantial evidence in the record.

As the review of the administrative hearing and determination of Comptroller was limited to the question of whether substantial evidence in the record support such determination, the Appellate Division “declined to address in the first instance [the Comptroller’s] arguments regarding the presumption set forth by [the RSSL] §363-a or the issue of causation.”

The court, Justices McCarthy and Devine dissenting, annulled the Comptroller’s decision and remitted the matter to him “for further proceedings not inconsistent with this Court's decision.”

* See Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010

The decision is posted on the Internet at:

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