Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later

To contact us Click HERE

Pension Fund permitted to credit report of the scene werethe alleged accident occurred made at the time of the event over a descriptionof the scene made two years later
Lang v Kelly, 2012 NY Slip Op 08788, Appellate Division, First Department 
Board of Trustees of Police Pension Fund of Police Dept. of City of New York,by a tie vote, rejected Jean Lang’s application for accidental disabilityretirement benefits.

Supreme Court dismissed Lang’s Article 78 petition challenging the rejection of her application and theAppellate Division affirmed the lower court’s ruling. The Appellate Division held that Lang “failed to demonstrateas a matter of law that her injury was the result of an accident, i.e., asudden, unexpected, out of the ordinary event, rather than a misstep during theroutine performance of her job.”
According to the decision, Lang was injured when she trippedover computer wires extending across the threshold of the doorway between tworooms. In a statement made contemporaneously with the accident, Lang indicatedthat the wires were "exposed."
Two years later, however, Lang submitted a statementindicating that the wires had initially been secured to the floor with ducttape and that the tape was removed on the day she fell.
The Appellate Division held that the Pension Fund wasentitled to credit Lang's contemporaneous account and reject her more recentstatement that the condition of the wires changed on the day of the accident,explaining that the Fund “reasonably inferred that, since the wires had been inplace for several months before [Lang’s] fall, she must have been aware of themand routinely stepped over them.

Another case illustrating the importance of a comprehensive physical description of the scene where the event occurred in the initial accident report is Slagle v McCall, 293 AD2d 923.
John K. Slagle, a firefighter, was injured while respondingto a fire. According to the decision, the incident report and application foraccidental disability retirement filed by Slagle both indicated that as hestepped over a downed chain link fence his boot caught on the fallen fence,causing him to fall.
Slagle, however, testified at his disability hearing beforethe Retirement System that he was unaware of the fallen fence because it washidden in tall grass and weeds. Significantly, said the court, no mention of"tall grass and weeds" was noted in either Slagle's incident reportor his application for accidental disability retirement benefits.
Slagle argued that his encounter with the fence and hissubsequent fall constituted an accident since it was "sudden andunexpected." The Comptroller, however, concluded that Slagle's injury wasthe result of a misstep as he attempted to step over the fallen fence and that,therefore, he did not sustain an accident within the meaning of the Retirementand Social Security Law. The Appellate Division sustained the Comptroller'sdetermination.
The court said that assuming that Slagle's testimony that hewas unaware of the fence was sufficient to demonstrate an accident,"neither the accident report filed by [Slagle] shortly after the injurynor his application for benefits contained any reference to tall grass, weeds orthe hidden nature of the fallen fence."
The court found that incident report and disabilityretirement application form submitted by Slagle provided the substantialevidence necessary to support the Comptroller's finding that "Slagle'sfall was caused by his misstep or miscalculation in attempting to step over thefallen fence while engaged in the performance of his ordinary employmentduties."
Thus, said the court, "there is no basis to disturb theComptroller's conclusion that [Slagle] did not sustain an accident."
Clearly including references to "tall grass andweeds" hiding the downed fence might not have guaranteed approval ofSlagle's application for accidental disability retirement benefits. However,the information he initially supplied in the incident report and in his application forbenefits, despite his somewhat different testimony at the hearing, provedsufficient to allow the Comptroller to base his decision solely on theinformation contained in the incident report and Slagle's disability retirementapplication form.
The Lang decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08788.htm

====================================
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.


====================================