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.

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Disability Benefits for fire, police and other public sector personnel - an 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 about this e-book click HERE(requires Adobe Reader).  

 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 19, 2022

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 19, 2022

Click on text highlighted in color  to access the full report

Handling of unemployment insurance during the COVID-19 pandemic. State Comptroller DiNapoli released an examination of the NYS Department of Labor's (DOL) handling of unemployment insurance during the COVID-19 pandemic. His audit found that DOL’s outdated system left the State’s unemployment insurance program vulnerable to fraud and ultimately contributed to an estimated billions of dollars in improper payments. In light of the audit’s findings, Comptroller DiNapoli called on the department to recoup fraudulent payments and correct its mistakes.

Attrition outpaces hiring among New York City’s municipal workforce, which could have an impact on critical City services and programs, according to a report released by State Comptroller DiNapoli. The report shows the City’s full-time workforce declined by 19,113 employees over the last two years, the largest decline in staffing since the Great Recession of 2008. Despite the City hiring over 40,000 new employees in the last fiscal year, City job vacancies stand at more than 21,000.

Halfmoon Resident Allegedly Stole Deceased Mother's Pension Payments State Comptroller DiNapoli, Saratoga County District Attorney Karen A. Heggen, the New York State Police and the New York State Department of Motor Vehicles announced Christmas Fish of Halfmoon, N.Y. has been charged with grand larceny for allegedly stealing nearly $13,000 of her deceased mother’s pension benefits.

Local Sales Tax Collections Grew by 14% in October Local sales tax collections in New York state increased by 14.1% in October compared to the same month in 2021, according to an analysis released by State Comptroller DiNapoli. Overall, local collections totaled $1.75 billion, up $217 million compared to the same time last year.

Statement on New York City's November Budget Update State Comptroller DiNapoli said, “The release of the City’s November 2022 Financial Plan update raises concerns about the City’s outyear budget gaps at a time of continued uncertainty. New sources of spending and revenue pressure highlight the missed opportunity to set aside additional monies in its Revenue Stabilization Fund in Fiscal Year 2022 when revenues significantly exceeded projections. A systematic approach to setting funds aside is critical." Read more

Retirement System Medical Board may rely on its own expertise to determine an applicant's eligiblility for benefits

The Appellate Division sustained the New York City's Retirement System's Medical Board's [Board] determination that a New York City Police Officer [Applicant] was not permanently disabled from the performance of Applicant's duties as a police officer as a result of his "obstructive sleep apnea". The court had concluding that the Board's decision was not arbitrary and capricious." 

Citing Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the court said that the Medical Board "properly based its conclusion on its examination" of the Applicant and his medical records, which provided some credible evidence to support its findings. 

Further, the court opined that the New York Police Department's Medical Division's finding that Applicant's obstructive sleep apnea adversely affected the Applicant's performance of his duties as a police officer was not binding on the Board.*

Further, noted the Appellate Division, Applicant had not undergone available treatment options to alleviate his symptoms. 

* N. B. A Social Security Administration’s disability determination is not binding on a New York State public retirement system [See https://www.nycourts.gov/reporter/3dseries/2016/2016_00782.htm].

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

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Disability Benefits for fire, police and other public sector personnel - an 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 about this e-book click HERE.

 

In an article published by STAT, a journal about health, medicine, and the life sciences, captioned Replace the failure of Medicare Advantage with ‘Medicare Part F’,  Steve Cohen, an attorney at Pollock Cohen, a litigation-oriented law firm based in New York City, opines "The shortcomings of the current Medicare system must be addressed ASAP. A good place to start is recognizing what hasn’t worked — and why — in order to develop a revamped system of medical care that both effectively and economically serves the growing senior population."

Click the URL set out below to access the article posted on the Internet:

https://www.statnews.com/2022/11/15/replace-medicare-advantage-failure-with-medicare-part-f/

Concerning Medicare and Medicare Advantage

In an article published by STAT, a journal focusing on health, medicine, and the life sciences, captioned Replace the failure of Medicare Advantage with ‘Medicare Part F’,  Steve Cohen, an attorney at Pollock Cohen, a litigation-oriented law firm based in New York City, opines "The shortcomings of the current Medicare system must be addressed ASAP. A good place to start is recognizing what hasn’t worked — and why — in order to develop a revamped system of medical care that both effectively and economically serves the growing senior population."

Click the URL set out below to access this STAT article posted on the Internet:

https://www.statnews.com/2022/11/15/replace-medicare-advantage-failure-with-medicare-part-f/

 

Recovering attorneys' fees and costs incurred in a New York State's Freedom of Information Law CPLR Article 78 action

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain them.*

In this action the Appellate Division, citing Matter of Dioso Faustino Freedom of Info. Law Request v City of New York, 191 AD3d 504, ruled that where the custodian of the records [Custodian] had "no reasonable basis for denying access" to the records sought pursuant to FOIL, it was undisputed that Petitioner substantially prevailed" as Custodian, during the pendency of this proceeding, "disclosed the records sought in the FOIL request with limited redactions."

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law [FOIL] may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain the documents or records demanded.

Significantly, the court opined "the voluntariness of [the] disclosure is irrelevant to the issue of whether [Petitioner] substantially prevailed".

As Custodian had conceded the issue of whether it had a reasonable basis for denying access in a prior FOIL proceeding between the same parties before "this court", which was limited to one of the documents at issue here, a medical screening manual, the Appellate Division remanded the matter to Supreme Court for a determination of Petitioner's attorneys' fees and other litigation costs.

* Public Officers Law §89[4][c][ii].

Click HEREto access the decision of the Appellate Division posted on the Internet.

An administrative regulation, or an amendment to such regulation, will be sustained if not arbitrary or irrational

The Independent Insurance Agents and Brokers of New York, Inc., et al., [Petitioners], challenged the validity of the recently amended Insurance Regulation 187 (11 NYCRR 224), which provides protections to consumers engaging in life insurance and annuity transactions. 

The Court of Appeals held that "[b]ecause the Department of Financial Services [DFS] appropriately exercised its authority to create a carefully considered and clear regulation, it found no basis to invalidate the regulation." 

The court explained that: 

1. An administrative regulation will be upheld only if it has a rational basis, and is not unreasonable, arbitrary or capricious, citing New York StateAssn. of Counties v Axelrod, 78 NY2d at 166. 

2. "If a regulation is to be nullified, the challenger must establish that it is so lacking in reason for its promulgation that it is essentially arbitrary", citing Kuppersmith v Dowling, 93 NY2d 90.

3. "So long as the regulation is 'genuine[ly] reasonable and rational' it should be upheld—courts should not scrutinize the 'policy considerations underlying the' regulation”, citing New York StateAssn. of Counties v Axelrod, 78 NY2d 158.

The Court of Appeals then opined "The goal of the amendment is straightforward and supported by the administrative record, and the amendment is plainly tailored to achieve those objectives [and] DFS reasonably concluded that the 'best interest' framework was needed to protect consumers, and [Petitioners] cannot show that the amended regulation is 'essentially arbitrary'".

In the words of the court, "[e]ach of [Petitioners] arguments for invalidating the regulation is unavailing. Petitioners have fallen woefully short of their burden to sustain a facial due process challenge on vagueness grounds, and the extensive administrative record supporting the amended regulation refutes their alternative challenges."

Click on the URL shown below to access the text of the decision of the Court of Appeals.

 https://www.nycourts.gov/reporter/3dseries/2022/2022_05917.htm