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A 35-year old police woman was appointed to the uniformed force

A 35-year old police woman was appointed to the uniformed force of the New York Police District in 1991 and, during the course of her career, ascended to the rank of sergeant. She was a member of, and a contributor to, the NYPD’s pension fund until her retirement in 2010. Sometime in March 2008, while she was on duty and on the way to respond to a police radio call, she tripped and fell over exposed wires that were strung across the floor of the doorway from the bathroom to the locker room. She sustained serious personal injuries as a result of the trip and fall accident. The Medical Board found that the policewoman was disabled as a result of those injuries, and recommended she be granted an accident disability retirement.

The Board of Trustees adopted the Medical Board’s findings that the policewoman was disabled as a result of the fall but the Board determined that the policewoman had not established that the fall constituted an “accident” for disability retirement purposes. Accordingly, the policewoman was retired on ordinary disability retirement instead of ADR.

The policewoman asked for the annulment of the determination and sought for a remand of the proceedings. She asserted that her trip and fallover the wires of the computer equipment in their precinct meets the definition of an “accident” for person purposes, thereby entitling her to an ADR.

A police officer is entitled to ADR, which pays a greater benefit than an ODR if she sustained an on-duty disabling injury as a result of an “accident” within the meaning of the Administrative Code of the City of New York, provided the disability is not the result of the officer’s willful negligence. “Accident” is not defined in the Administrative Code, but the Court of Appeals adopted the common sense definition of a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.”

In this case, the court found that it is undisputed that the policewoman suffered a disabling injury in the line of duty, and the only issue is whether the Board properly refused her an ADR.

Ordinarily, to overturn the Board’s determination, a reviewing court must find that the Board’s factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious. But, where the denial of ADR is the result of a six-to-six vote of the Board, the determination can be set aside upon judicial review only if the court concludes that the retiree is entitled to greater benefits as a matter of law.

The court, in this case, determined that the policewoman is entitled to a remand because the Board’s submissions indicate that, as a matter of law, the Board used an improper standard for determining whether the incident that resulted in the policewoman’s disability was an accident.

The Board, citing a prior case law, stressed that that case law’s definition relating to “sudden” and “unexpected” circumstances, urging that there can be no accident if the hazard which caused the injury did not suddenly and unexpectedly appear. The court pointed out that there is case law from lower courts supporting the Board’s argument. In one prior case, an appellate court affirmed a decision that denied a request to vacate the Board’s determination which refused ADR to an officer who tripped over wires in his office, because it could not be said as a matter of law that his injury was the result of an accident and not his own.

Thus, the court granted the policewoman’s petition to the extent that the matter is remanded to the Board for further determination.

Being involved in a personal injury lawsuit arising from negligent acts of someone else is difficult. Stephen Bilkis & Associates and our Trip and Fall Attorneys will make sure you and your rights are protected at all stages in the case. Our offices are conveniently located throughout the NY Metropolitan area.

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