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September 12, 2016

Processing an application for accidental disability retirement


Processing an application for accidental disability retirement
Magistro v DiNapoli, 2016 NY Slip Op 05893, Appellate Division, Third Department
Bodenmiller v DiNapoli, 2016 NY Slip Op 05894, Appellate Division, Third Department

Members of the
New York State Policemen's and Firemen's Retirement System injured on the job and and as a result are "physically or mentally incapacitated for performance of duty” may apply for an accidental disability retirement allowance pursuant to §363 of the Retirement and Social Security Law or, where his or her disability did not result from an accident, for a performance of duty disability retirement allowance pursuant to §363-c of the Retirement and Social Security Law.* 

For the purposes of  determining an individual's eligibility for an accidental disability retirement allowance pursuant to §363, in Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010, the Court of Appeals defined the term accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact." Whether a "mischance" is an accident for the purposes of §363 is determined on a case-by-case basis.

The Magistro decision by the Appellate Division illustrates the application of the “accident standard” in determining the nature of the event that resulted in the injury while the Bodenmiller decisions explains the quasi-judicial procedures that are to be followed when considering an application an accidental disability retirement allowance.


The Magistro decision

City of Poughkeepsie police officer David M. Magistro was dispatched to a residence where a burglary had occurred. In the course of his checking the residence for possible entry points and crime scene evidence, he went to inspect a small porch that was connected to the house by wooden stairs. The stairs were partially covered by an overhanging roof. It had rained that morning and when Magistro stepped on the top step he slipped and slid down the handrail before eventually catching himself. As a result of injuries that he sustained, Magistro filed an application for accidental disability retirement benefits.**  

Magistro’s application was initially administratively denied on the ground that the incident did not constitute an accident for the purposes of the Retirement and Social Security Law. He  requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. The Comptroller subsequently adopted the Hearing Officer's findings and Magistro filed a petition pursuant to Article 78 of the CPLR challenging the Comptroller’s determination.

The Appellate Division sustained the Comptroller’s decision noting that “[i]t is well settled that, for purposes of the Retirement and Social Security Law, an accident is a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," the Lichtenstein test. 

The court then explained that the burden is on the party seeking benefits to establish that the injury-producing event was accidental in nature and in order to be deemed accidental, an injury must result from a risk that is not an inherent part of the applicant's regular job duties or from a hazard that cannot be reasonably anticipated by the individual.

The Appellate Division explained that Magistro’s search of the residence following the burglary was a part of his routine duties as a police officer and he acknowledged that it was lightly raining when he conducted the search. Although he did not see water pooling on the stairs, he believed that they were wet and stated that he did not realize that the stairs were slippery until his foot slipped on the top stair.

The Appellate Division held that Magistro “could have reasonably anticipated the slippery condition of the stairs under the circumstances presented.”

Although Magistrotheorized that the stairs were slippery because they had been painted with interior paint and were not constructed in accordance with the relevant building code, the court said that this explanation of the cause of Magisto's injury presented a credibility issue for Comptroller to ultimately resolve. Here, said the Appellate Division, substantial evidences supported the Comptroller’s determination rejecting Magistro’s application for accidental disability retirement benefits and “we decline to disturb it.”


The Bodenmiller decision

Robert Bodenmiller, a police officer with the Suffolk County Police Department, received a call concerning a female patient who had left the grounds of a psychiatric facility. Bodenmiller found the woman at a nearby restaurant and, while he was questioning her, a man, who appeared to be carrying a weapon and was yelling loudly, rushed toward them. Bodenmiller turned toward the man, extended his left arm and fired his weapon twice, striking the man and injured his left shoulder during the incident.

Bodenmiller applied foraccidental disability retirement benefits but his application was administratively denied on on the ground that the incident as described by Bodenmiller did not constitute an accident within the meaning of the Retirement and Social Security Law. Bodenmiller requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. Ultimately the Comptroller accepted the Hearing Officer’s findings and denied Bodenmiller application.

In the course of the Article 78 proceeding that followed, the Comptroller conceded, and the Appellate Division agreed, that the Hearing Officer had applied the incorrect legal standard in rendering her decision.

Specifically, said the court, the Hearing Officer confined her analysis to whether the initial administrative determination was supported by substantial evidence and did not undertake making a re-determination, exercising “the same powers upon such hearing as upon the original application.”

Citing DeMaio v DiNapoli, 137 AD3d 1545, the Appellate Division ruled that such a deficiency constituted an error of law and required annulment of the Comptroller’s determination. The court then remitted the matter to the Comptroller for a new hearing. 

* While §363-c benefits are less generous than §363 benefits, the standard for allowing the benefit is less rigorous as the incident does not have be "accidental in nature." 

N.B. §363-c(h) provides that §363-c benefits are not available to individuals eligible to receive accidental disability retirement benefits pursuant to §363-b, which section applies to sworn officers of the Division of State Police who became disabled prior to July 1, 1974.

**  
Magistro had also filed an application for performance of duty disability retirement benefits, which application was approved.

The Magistro decision is posted on the Internet at:

The Bodenmiller is posted on the Internet at:

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