February 15, 2018

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law
Kelly v DiNapoli, 2018 NY Slip Op 01016, Court of Appeals
Kowal v DiNapoli, 2018 NY Slip Op 01019, Court of Appeals

In these appeals, the Court of Appeals was asked to determine whether petitioners, both first responders, respectively established entitlement to accidental disability retirement benefits by demonstrating that they were incapacitated "as the natural and proximate result of an accident . . . sustained in . . . service" within the meaning of Retirement and Social Security Law §363[a][1].

Finding that neither of these two first responders had demonstrated that their respective injuries were caused by "sudden, unexpected events that were not risks inherent in their ordinary job duties," the Court of Appeals ruled that neither Kelly nor Kowal had established entitlement to the benefits that they, respectively, sought and affirmed the Appellate Division's decision in Matter of Kelly v DiNapoli, 137 AD3d 1470, and reverse the Appellate Division's decision in Matter of Sica v DiNapoli, 141 AD3d 799.

In Kelly the court concluded that he was expected to assist injured persons, and that responding to emergencies is among the ordinary duties of police officers. While it was not disputed that Kelly was acting within the scope of his job duties when he responded to that emergency call.

Although noting that under the circumstances a different result would not have been unreasonable, the Court of Appeals ruled that "there was substantial evidence in the record to support the determination that Kelly's actions in assisting the injured residents of the house during life-threatening conditions fell within his job duties, and that his injuries did not result from a sudden, unexpected event that was not a risk inherent in his duties as a police officer"

With respect to Sica, the court indicated that "the alleged accident was exposure to toxic fumes in the supermarket, leading to a disabling heart condition" but then observed that "Sica was fulfilling his regular duties as a firefighter in responding to [a] 911 call."

Noting that the Comptroller had found that Sica "exposure to toxic chemicals was a risk for which Sica had been trained, that he had responded to a gas leak in the past, and that his job duties specifically required 'working with exposure to . . . fumes, explosives, toxic materials, chemicals and corrosives,'" the Court of Appeals concluded that "it is not unexpected that a firefighter whose job duties required him to respond to emergency medical calls would be exposed to toxic fumes in responding to a call for difficulty breathing."

Thus, said the court, the Comptroller "rationally concluded that Sica's injuries were the result of a risk inherent in his ordinary duties as a firefighter."

Matter of Kelly v DiNapoli is posted on the Internet at:

Matter of Kowal v DiNapoli is posted on the Internet at:

Disability Benefits for fire, police and other public sector personnel 
NYPPL's e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on  http://booklocker.com/books/3916.html



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