November 20, 2018

Light duty assignments


Light duty assignments
Paeno v McCall, 235 A.D.2d 766

In Paeno the Appellate Division considered the impact of light duty assignments on an application for accidental disability retirement.

In December 1990 firefighter Joseph J. Paeno was injured at work. In 1992 Paeno was ordered back to work and given a "light duty" assignment. In November 1992 he filed for both accidental and performance of duty disability retirement, contending that he was unable to perform even light duty work. Both applications were rejected.

The significant issue in this decision relates to the standard to be used by the Comptroller in evaluating an application for disability retirement.

Here the Court decided that the Comptroller was not required to determine if Paeno was physically incapacitated from performing his normal duties. Rather the Comptroller was free to [and correctly] determine that the evidence failed to establish that Paeno could not perform the light duty assignments required.

The Appellate Division commented that new regulations of the Comptroller setting out new standards for evaluating disability applications were not in effect at the time the Comptroller made his determination. The Court also pointed out that the regulations were not applicable retroactively.

These  new regulations are found in 2 NYCRR 364. They provide the criteria to be used by the Retirement System insofar as the Systems considering the demands of the position in processing  an application for accidental or duty disability retirement.

Under the regulations, the System may require the employer to provide a written statement that accurately describes the actual duties performed by the applicant, together with a description of the relevant physical and, or, psychological requirements of the position. Significantly, §364.2 provides that the employer is not simply to provide the official Civil Service job description for the title of individuals if the applicant's duties and the applicant's  actual duties and the relevant job requirements are not accurately recited in the official Civil Service job description. [2 NYCRR 364.2]

Another element in the evaluation is that §364.3(a) of the regulations provides that if the applicant has been performing light, limited or restricted duties for less than two years prior to the date of his or her application for disability retirement benefits, the Retirement System will evaluate the applicant's ability to perform the job requirements of his or her regular, full duty assignment performed immediately prior the light duty assignment.

In contrast, if the applicant has been continuously assigned to light, limited or restricted duties for at least two years prior to the date of his or her application for disability retirement benefits, the evaluation is to be based on the written description of the duties and/or physical or psychological job requirements provided by the employer describing the light duty assignment.

Where, however, the applicant has performed at least 100 hours of paid overtime while on light duty during any twelve month period within the two year period prior to the filing of his or her application for disability retirement, the Retirement System will make its determination concerning on the issue of permanent incapacity on the basis of the applicant's ability to perform his or her light duty assignment.

What is the bottom line?

Under the regulations, where an individual is performing a light duty assignment at the time he or she applies for accidental or duty disability retirement benefits, the Retirement System will determine the issue of permanent disability based on:

 a. the individual's full duties of his or her position where the applicant has performed light duty for less than two years; or

b. if the applicant has performed a light duty assignment for more than two years, the issue of permanent disability will be resolved in consideration of the applicant's  actual light duty assignment.


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