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Thursday, July 21, 2016

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit


Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit
Caetano v DiNapoli, 2016 NY Slip Op 05222, Appellate Division, Third Department

Sharon Caetano, an employee of the Erie County Board of Elections, experienced a “slip and fall” while at work. Ultimately she filed an application for disability retirement benefits with New York State and Local Employees' Retirement System [ERS] alleging that she was permanently incapacitated from performing her job duties due to injuries she suffered as the result of the fall she experienced while at work.

ERS denied Caetano’s application on the grounds that [1] she had less than 10 years of member service credit in ERS and [2] that she had not established that her falling while at work constituted an accident within the meaning of the Retirement and Social Security Law [RSSL].

Caetano then appealed ERS' denial of her application for disability retirement. Following an administrative hearing, the Hearing Officer upheld ERS’ denial of Caetano’s application for disability retirement benefits. The Comptroller adopted the Hearing Officer's decision, and Caetano filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division affirmed the Comptroller’s ruling, explaining that RSSL §605[b][1]) provides that a member of ERS is eligible for disability retirement benefits where the disability was not job related if the member has "at least [10] years of total service credit."

In contrast, RSSL §605[b][3] provides that a member of ERS with less than 10 years of members service credit is eligible for accidental disability retirement benefits if the member can show that his or her disability was "the natural and proximate result of an accident not caused by his [or her] own willful negligence sustained in the performance of his [or her] duties."

Although Caetano alleged that the Comptroller erred in calculating her member service credit, the court said that "The Comptroller is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence." Further, said the Appellate Division, Caetano has the burden of establishing an entitlement to any additional member service credit she may claim greater than that determined by the Comptroller.

While the Comptroller ruled that Caetano had only attained 9.95 years of member service credit, Caetano contended that her yearly “service credits in her records” were inaccurate. She claimed that the Comptroller did not “take into account time that she was out of work and being paid workers' compensation benefits” in lieu of her salary based her belief that Erie County credited her with that time for retirement purposes.*

However, said the court, Erie County employment records do not reflect such “credit” and she failed to present any authority supporting her contention.

Considering Caetano’s employment records, the Appellate Division concluded that the Comptroller's determination that she had not attained 10 years of member service credit at the time she applied for disability retirement was rational and supported by substantial evidence. Further, said the court, Caetano did not satisfy her burden of establishing that she was entitled to additional service credit.

To be eligible for accidental disability retirement benefits, Caetano was required to demonstrate that her disability was the natural and proximate result of a work-related accident. For purposes of the RSSL, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and "[A]n injury is not accidental in nature if it occurs as the result of an applicant's routine employment duties and does not involve an unexpected event."

Based on the record, the Comptroller determined that Caetano’s injuries were sustained as the result of her own misstep or inattention, and not because of an accident within the meaning of the RSSL. As that determination was supported by substantial evidence, the Appellate Division declined to disturb it. 

* Typically an employee on workers' compensation leave pursuant to Civil Service Law §71 earns sick leave and similar credits only while the individual remains "on the payroll" of the employer as the result of the employee electing to use available leave credits, overtime credits or similar accruals to do so [see Andrews v State of New York, 138 AD3d 1297, summarized on NYPPL at: http://publicpersonnellaw.blogspot.com/2016/04/accruing-vacation-and-sick-leave.html ].

The decision is posted on the Internet at:

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/

A Reasonable Penalty Under The Circumstances 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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