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COURT OF APPEALS AFFIRMS DENIAL OF ACCIDENTAL DISABILITY RETIREMENT UNDER RSSL SECTION 363


Under the Retirement and Social Security Law, a member of the police and firefighters’ retirement system may be entitled to an accidental disability retirement if s/he has been physically or mentally incapacitated from the performance of duty because of an accident that is NOT caused by his/her own negligence. However, the definition of what constitutes an accident has been inconsistent over the years.

Most recently, in October of 2022, the Court of Appeals issued a decision finding that an accident is defined as “sudden, fortuitous mischance, unexpected, out of the ordinary and injurious on impact.” The Court further found that an injury without an unexpected event does not constitute an accidental injury for the purposes of an Accidentally Disability Retirement application.

In the case decided, the plaintiff was a police officer that sustained a crush injury to her hand when a gust of wind blew an 80 to 100-pound door shut. There was no dispute that the injury sustained resulted in a permanent inability to perform her full duty work. However, the Court determined that since the plaintiff knew that the heavy metal door would slam shut automatically, it was not an “unexpected event.” The Court denied the plaintiff’s application for Accidental Disability Retirement, stating that “while a known condition may be a risk of the work site, it cannot be the cause of an accident compensable under the Retirement and Social Security Law Section 363.

In a lengthy dissent, one of the judges found the majority’s decision created an inconsistently applied standard and recommended that the standard should be:

  1. Whether the nature of the hazard is part of the bargained for risks of the job, AND

  2. Whether it is truly unexpected and out of the ordinary, rather than an ordinary risk of daily life.

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