Petitioner, a police officer, applied for accidental disability retirement benefits claiming that she was permanently incapacitated from performing her job duties due to injuries sustained in three incidents while "on the job".
At the hearing Petitioner conceded in her post hearing brief that the one incident, Incident #1, did not constitute an accident.*
The Hearing Officer then found that the other two incidents reported did not constitute accidents within the meaning of the Retirement and Social Security Law. The Comptroller affirmed the Hearing Officer's determinations and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.
The Appellate Division sustained the Comptroller's ruling, explaining:
1. The applicant for accidental disability retirement bears the burden of establishing that the disability arose from an accident within the meaning of the Retirement and Social Security Law;
2. The Comptroller's determination will be sustained if supported by substantial evidence, citing Matter of McDermott v Gardner, 215 AD3d 1206];
3. For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"; and
4. An injury that results from "the performance of ordinary employment duties and is a risk inherent in such job duties" is not considered accidental, noting the Appellate Division's decision in Matter of Walsh v DiNapoli, 214 AD3d 1282.
Referencing Matter of Bodenmiller v DiNapoli, 215 AD3d 96, the Appellate Division opined: "precipitating events that arise out of a risk inherent in the petitioner's ordinary job duties, i.e., the work performed ... can never be considered accidents because, by definition, they are not unexpected and therefore cannot be the basis for an accidental disability pension ...".
* During the administrative hearing Petitioner's had counsel conceded that Incident #1 was not an accident and did not cause Petitioner's permanent disabilities but subsequently retreated from that concession. In her post administrative hearing brief Petitioner argued that Incident #1 was, indeed, an accident. The Hearing Officer found that the concession that Incident #1 was not an accident apparently was a mistake and proceeded to rule on the issue, affirmatively finding that Incident #1 was not an accident. Under the circumstances, the Appellate Division said given "the confusion" and the fact that Petitioner raised the issue concerning Incident #1 in her petition, and in her appeal brief, it elected to address Incident #1 "on the merits".
Click HERE to access the Appellate Division's decision posted on the Internet.
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