Processing an application for accidental disability retirement
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 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.
* 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.