When is a Disability "Accidental"?
CAPTAINS ENDOWMENT ASSOCIATION BULLETIN -MARCH 2010
The official publication of the Captains Endowment Association, Police Department, City of New York
"Managing the FINEST"
By Robert Ungaro & Nicholas Cifuni, Esqs.
As disability counsel to the CEA, we frequently receive questions regarding whether a member’s injury is “accidental” within the limited meaning of the Administrative Code § 13-252 – the section that governs retirement for accident disability for members of the Police Pension Fund.
Members are often surprised to learn that merely documenting an injury as having occurred in the line of duty may not necessarily qualify the injury as an “accident.” Injuries sustained during routine acts, even if they are performed in the furtherance of an arrest or during the performance of police duties, do not qualify as an accident. The accidental nature of an injury must be clearly documented.
In determining whether an accident has occurred, the Courts have adopted the common sense definition of a “sudden, fortuitous mischance, out of the ordinary and injurious on impact.” The courts hold that an injury is not accidental if it occurs without an unexpected event, such as the result of activities undertaken in the performance of ordinary employment duties. A precedent setting case denied a police officer who was injured while leaning over to place ticket on a windshield. His injury was exertional and sustained during the routine performance of duty, resulting in his disability not qualifying for a three quarter retirement under the Code.
SUDDEN, AND INJURIOUS ON IMPACT. The precipitating cause of the injury must not be the result of a mere exertional strain, gradual degeneration or worsening.
FORTUITOUS MISCHANCE, OUT OF THE ORDINARY. A qualifying injury must not be sustained as part of member’s routine and ordinary duties nor a normal foreseeable risk of the work he or she performed as a police officer.
WILLFUL NEGLIGENCE. It cannot be held that the member’s own willful negligence caused his disabling injury.
The accidental designation of an injury can result in a member receiving a retirement allowance which is substantially greater than an ordinary disability or service retirement and therefore any report should be prepared with great care. Injury Reports can wait until after medical treatment, or when you can devote attention to insure that the accidental details of the event are documented accurately. It is critical that injury reports specifically list the “accidental” nature of injuries at the time at the time they are prepared. For example, a report that merely states “injured knee exiting rmp” will, at worst, result in a later determination of a non accident. At best, the member will need to file amendments which will be viewed with great scrutiny later on. However, a report of the same occurrence which carefully details the accidental nature of the injury, will likely result in that injury being designated an “accident.” The following example contains the essential elements necessary to sustain an accidental designation under law and significantly elevate the likelihood of a finding of accident under the Code. “While responding to a 10-30 in progress, I sustained an injury exiting RMP as the result of an unexpected slip on an unseen oily substance which caused me to twist my right knee, fall and strike the ground, causing immediate pain to my right knee.”
As a service to CEA members, the firm of Ungaro and Cifuni are available to assist CEA members with the proper preparation of injury reports or to help with other related disability issues. We may be reached at 212 766-5800 our website address is http://nycdisabilitylaw.com
This information is not meant to cover every situation, it is, instead a general statement of one aspect of disability law and procedures. It is not to be used as a substitute for specific legal advice from an attorney.