Proving that a work-connected injury suffered as the result of an unexpected or unforeseeable event is critical to the approval of an application for accidental disability retirement benefits

Proving that a work-connected injury suffered as the result of an unexpected or unforeseeable event is critical to the approval of an application for accidental disability retirement benefits
Suppa v DiNapoli, 2012 NY Slip Op 08622, Appellate Division, Third Department

Frank J. Suppa, a police detective, suffered a back and knee injury when, in the course of his conducting a surveillance of a suspect, stones on the retaining wall on which he was standing shifted causing him to fall. 

Contending that he was permanently disabled from performing his duties as a detective as the result of his fall, Suppa filed an application with the New York Employees' Retirement System for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.

The Retirement System found that Suppa was permanently disabled from performing his duties as a police detective as a result of his injuries and his application for performance of duty retirement benefits was approved.

As to Suppa’s application for accidental disability retirement benefits, the System denied that application, ruling that the incident leading to his disability “did not constitute an accident within the meaning of the Retirement and Social Security Law.”

The Appellate Division agreed, noting that the applicant ”bears the burden of proving that his [or her] injury was accidental” and the Retirement System’s determination to the contrary will be sustained “if supported by substantial evidence."

An accident within the meaning of the Retirement and Social Security Law, explained the court, is "a sudden, fortuitous mischance which is unexpected and out of the ordinary.”

Further, said the Appellate Division, "an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

Suppa had testified that he was performing a routine job duty when he was injured and that he was aware that the stone wall that he climbed upon was made up of "large loose boulders" that were merely piled on top of each other, without anything holding the boulders together.

Under these circumstances, said the court, the possibility that one of the boulders would come loose under Suppa's weight as he was standing on it was a foreseeable event. 

Accordingly, substantial evidence supported System's determination that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08622.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Backward-looking right of access claims

"Backward-looking" right of access claims

Sousa v Marquez, US Court of Appeals, Second Circuit, Docket No. 12-403-cv

The Supreme Court has categorized right-of-access claims as either forward-looking or backward-looking.

In the forward-looking category "are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time" (see Christopher v. Harbury, 536 US 403). In “forward-looking” claims, official action is presently denying an opportunity to litigate.

“Backward-looking” right of access claims involve claims not in aid of a class of suits yet to be litigated but of specific cases that cannot now be tried (or tried with all material evidence) no matter what official action may be in the future. To prevail in a backward-looking claims action, the plaintiff must show that the defendants caused the plaintiff to lose a meritorious claim or a chance to sue on a meritorious claim.

Bryan Sousa, a former employee at the Connecticut Department of Environmental Protection, sued Devin Marquez, a staff attorney at the Connecticut Department of Administrative Services, in an action characterized by the Second Circuit as a “backward- looking” right of access claim. Sousa contended that he did not win his earlier employment-related suit because of false statements and deliberate omissions in an investigative report issued by Marquez.

The Second Circuit rejected Sousa’s appeal from an adverse district court ruling, explaining that:

[1] “Even assuming that so-called ‘backward looking’ right-of-access claims are viable in this Circuit, such claims cannot proceed if the plaintiff, asserting that the government concealed or manipulated relevant facts, was aware of the key facts at issue at the time of the earlier lawsuit. In other words, “A plaintiff with knowledge of the crucial facts and an opportunity to rebut opposing evidence does have adequate access to a judicial remedy” available to him or to her in the course of that litigation.

[2] The District Court’s opinion in the prior suit demonstrates that the Court did not rely on statements or omissions in Marquez’s report and, therefore, Sousa has not shown that Marquez’s purported actions caused or resulted in a violation of his rights.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/doc/12-403_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/hilite/

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
Giudi v New Paltz Fire Dept., 2012 NY Slip Op 08621, Appellate Division, Third Department

The genesis of this appeal was volunteer firefighter Jason Giudi's claim that he had suffered a head injury in the line of duty that adversely affected his ability to continue to work in his job in his regular capacity which resulted in a reduction in his income.

The Workers' Compensation Board ultimately found that the Giudi was permanently disabled and had been deprived of more than 75% of his earning capacity. Accordingly, the Board awarded Guidi benefits pursuant to Volunteer Firefighters' Benefit Law §10(1).*

Several years later the case was reopened by the Workers’ Compensation Board to address the New Paltz Fire Department's contention that Giudi 's condition had changed within the meaning of Volunteer Firefighters' Benefit Law §13** and thus Giudi’s entitlement to benefits should be reconsidered.

The Board sustained its earlier determination that Giudi was, and continued to be, permanently disabled. The Fire Department then challenged the Board’s decision but the Appellate Division dismissed its appeal.

Noting that substantial evidence supports the Board's finding that Giudi "remains unable to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute,” the Appellate Division affirmed the Board’s decision.

According to the ruling, Giudi testified that his work as a chef required substantial amounts of education and training and he has been forced to perform less mentally demanding work since his injury.

Noting that a clinical neuropsychologist who examined Giudi had opined that Giudi's “cognitive impairments continued to prevent him from working as a chef or military police officer,” the court said that the Board was free to credit this evidence --  “which provided ample justification for its finding that [Giudi] continues to suffer from a disability that deprives him of more than 75% of his earning capacity.”

* §10 of the Volunteer Firefighters Benefit Law provides for the payment of benefits in the event a volunteer firefighter suffers a permanent partial disability benefits as a result of his or her suffering an injury in the line of duty.

** §13 of the Volunteer Firefighters Benefit Law provides for the reclassification of a disability upon proof that there has been a change in the claimant’s condition

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08621.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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