A police officer [Petitioner] exited his patrol car and began walking toward the scene of a third accident in the immediate area when he stepped into a pothole that was covered by snow and ice. He lost his balance and fell backwards, seriously injuring himself. Petitioner's application for accidental disability retirement benefits was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.
Following a hearing, this determination was sustained by a Hearing Officer and the State Comptroller adopted the Hearing Officer's finding, whereupon Petitioner commenced a CPLR Article 78 proceeding challenging the Comptroller decision.
The Appellate Division commenced its review of Petitioner's appeal by noting:
1. An applicant for accidental disability retirement benefits bears the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law;
2. The Comptroller's determination in this regard will be upheld if supported by substantial evidence;
3. For purposes of the Retirement and Social Security Law, an accident has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; and
4. To be deemed accidental, the injury must not have been the result of activities undertaken in the ordinary course of one's job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed.
Conceding that at the time of the incident, Petitioner was performing his ordinary job duties of responding to a series of traffic accidents that had occurred during his shift and that falling on a slippery snow- and ice-covered road may be a risk of Petitioner's ordinary job duties, the Appellate Division, in a 4-1 ruling,* found that falling due to a pothole concealed under the snow and ice is not such a risk, explaining that given the circumstances leading to Petitioner's fall set out in the record, his injury was the result of a "sudden and unexpected event that constitutes an accident as matter of law."
Accordingly the court concluded that the Comptroller's determination was not supported by substantial evidence and annulled his decision, remitting the matter to the Retirement System "for further proceedings not inconsistent with this Court's decision."
* Judge Clark said that "[the] Court of Appeals has made clear that, to qualify as an accident within the meaning of the Retirement and Social Security Law, there must have been a precipitating accidental event that caused the injury "which was not a risk of the work performed" and, in her view, a fall resulting from stepping "into a snow- and ice-covered pothole is not a precipitating accidental event "... [a]lthough stepping into the pothole may have been sudden, it was not, on this record, a hazard so out of the ordinary or unexpected under the circumstances so as to qualify as an accident [as Petitioner] ... was equipped with ice cleats to help him traverse the unplowed and unsalted roadway and that, having had ample opportunity to observe and traverse the snow-covered road" while responding to two car accidents at the same location immediately prior to his fall "he was aware of the possibility that road hazards could be concealed."
The decision is posted on the Internet at:
Disability Benefits for fire, police and other public sector personnel
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