Arbitrating disputes involving General Municipal Law §207-a benefits pursuant to an arbitration clause in the collective bargaining agreement.

 Posted on the Internet at https://www.nycourts.gov/reporter/3dseries/2022/2022_07095.htm

Determining if an injury experienced in a training situation constitutes an accident for the purposes of RSSL §363

A firefighter [Petitioner] filed an application for accidental disability retirement benefits claiming that he was permanently disabled as a result of an injury to his left eye that was sustained during a mandatory firefighter training exercise.

The New York State and Local Police and Fire Retirement System denied Petitioner's application holding that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363 and Plaintiff was awarded performance of duty retirement benefits.

Ultimately an administrative hearing was conducted and the Hearing Officer denied Petitioner's application based on the Hearing Officer's finding that the underlying incident was not an accident as it occurred during the course of Petitioner's routine employment duties and was a risk inherent in the performance of such duties.

The Comptroller [Respondent] sustained the Hearing Officer's decision, prompting the Petitioner to commence the instant CPLR Article 78 proceeding to challenge Respondent's determination.

Citing Matter of Bohack v DiNapoli, 197 AD3d 1384, the Appellate Division noted that Petitioner "bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law"* and Respondent's determination in this regard will be sustained "if supported by substantial evidence." 

The Appellate Division explained "an injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental".

According to the accident report prepared the day of the incident by the deputy chief to whom Petitioner reported the incident, which Petitioner signed, Petitioner indicated that he was injured in a "collision with fellow firefighters" during the live-fire training exercises. Petitioner acknowledged during the hearing and confirmed "it was normal to bump into things during such zero-visibility exercises."**

In the words of the Appellate Division:

1. "Petitioner provided various explanations for describing the incident shortly after it occurred as the result of a collision rather than kicking;" BS

2. The Hearing Officer credited — "as 'more reliable, credible and plausible' — [Petitioner's] more contemporaneous account of the incident reflected in the accident report, over his subsequent, inconsistent testimony, which was found to be 'unsubstantiated,' in concluding that the incident did not constitute an accident."***

The Appellate Division opined than under settled law, "an incident is not an accident within the meaning of the Retirement and Social Security Law where the underlying injuries result from an expected or foreseeable event arising during the performance of routine employment duties or occur during the course of a training program constituting an ordinary part of the employee's job duties and the normal risks arising therefrom." citing Matter of O'Mahony v DiNapoli, 157 AD3d 1107,

As the record reflected that the training exercise program "arose from, and was a required part of, [Petitioner's] routine duties as a firefighter and given that the attendant risks of that training", the Appellate Division found that "substantial evidence supports the determination denying Petitioner's application for accidental disability retirement benefits."

* The Retirement and Social Security Law defines an "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" [See Matter of Kenny v DiNapoli, 11 NY3d 873]

** Petitioner testified that, as part of his standard duties as a firefighter, he engaged in training exercises at the training center several times a year that included live-fire search and rescue operation drills where controlled fires were set, reducing visibility to zero. 

*** The conflict in Petitioner's accounts presented a credibility issue for the Hearing Officer and, ultimately, the Comptroller to resolve. 

Click HEREto access the Appellate Division's decision posted on the Internet.

New York City Office of Administrative Trials and Hearing Administrative Law Judge Ingrid M. Addison recommended termination of employment of a sanitation worker for posting racially insensitive images and commentary on social media while identifying himself as a New York City employee and for violating the agency’s sick leave policy.

Click on the text highlighted in color to access the material cited posted on the Internet.

https://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-1320.pdf

Read more about Dep’t of Sanitation v. J. L. and other personnel cases

Summaries of legal actions or "squibs" of selected decisions posted on the Internet during the month of December 2022

In law the term "squib" refers to a very brief review of a single case or a single point of law from a case [Squib^©Copyright 1997-2022 airSlate Legal Forms, Inc. d/b/a USLegal].

Applicant for performance of duty disability retirement benefits "bore the burden of proving that [s]he was 'physically or mentally incapacitated from performance of duty as the natural and proximate result of a disability sustained in such service'".

Click the following URL to access this decision posted on the Internet at:  https://www.nycourts.gov/reporter/3dseries/2022/2022_06968.htm