AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Disability Rights and Benefits
DISABILITY RIGHTS AND BENEFITS
A - Line
of duty related/ disputed
B -
Ordinary Disability/ reinstatement
C - Benefit disputes
D - Offset and
subrogation
E -
Continuing eligibility/ testing
F - Other issues
G -
Hearing procedures and appeals
H
- Heart, lung and presumption laws
A -
Line of duty related/ disputed
Two New York first responders did not establish that that they were entitled to accidental disability retirement benefits by demonstrating that they were incapacitated as the natural and proximate result of an accident sustained in service. The highest court in New York held that substantial evidence supported the determinations that neither petitioner was injured as the result of an “accident” because there were no precipitating accidental events that were not a risk of the work performed. Kelly v. DiNapoli, #2, 3, 2018 NY Slip Op 01016, 2018 N.Y. Lexis 181.
A former county employee filed an application
for a service-related disability retirement and allowance. Two years later, the
application for service-related disability retirement benefits was granted,
effective as of the date of his initial application. He challenged that
effective date, arguing that benefits were due for eight years earlier, and
prejudgment interest from the date of disability. He was entitled to the
benefits from the date of his last day of work for the county, eight years
before his application was filed. Disability retirement benefits under
the California County Employees Retirement Law of 1937, an intermediate appeals
court ruled, were not due before the county retirement board received his
application and made a determination of his eligibility, and the employee
experienced a wrongful withholding of his benefits when the board erroneously
denied his application for a retroactive disability retirement allowance. The
employee's entitlement to prejudgment interest commenced on the date of wrongful
denial, and not before. Flethez v. San Bernardino County Employees Retirement
Ass’n, #S226779, 2 Cal. 5th 630, 389 P.3d 1232, 2017
Cal. Lexis 1608.
A
police officer responding to an emergency call fell after slipping on ice. He
was found to be suffering from significant osteoarthritis in both hips, which
was aggravated by the fall. After two hip replacement surgeries, he was awarded
a line-of-duty disability pension. The employer sought a court ruling that it
was not required to pay for his health insurance premiums under the Illinois
Public Safety Employee Benefits Act, 820 ILCS 320/10. The Illinois Supreme
Court rejected this argument, upholding rulings from the trial court and an
intermediate appeals court. Once a line-of-duty disability pension is awarded,
that establishes that an officer suffered a "catastrophic" injury
obligating the employer to pay the officer' health insurance premiums. The
employer was not entitled to a hearing to satisfy due process requirements, and
was not denied due process, as it made the decision not to intervene in the
officer's disability pension proceeding or to object to the award of the
line-of-duty disability pension. Village of Vernon Hills v. Heelan, 2015 IL
118170, 2015 Ill. Lexis 774.
After his last day of work as a county employee,
a man underwent surgery for a work-related spinal injury suffered in 1998. He
later filed a claim for work related disability retirement benefits. He was
granted those benefits by the county employees' retirement association from the
date of the application, but not retroactively for the period before the date
of his application. An intermediate California appeals court found that a trial
court subsequently erroneously awarded the plaintiff retroactive benefits and
prejudgment interest, as he was not entitled to the benefits at issue until he
applied for them. Flethez v. San Bernardino Co. Employees Retirement Assn.,
#D066959, 2015 Cal. App. Lexis 335.
An Illinois intermediate appeals court upheld a
determination that a former firefighter/paramedic's degenerative arthritis of
the knee was due to a preexisting knee condition rather than any acts while on
duty. She was therefore properly awarded non-duty disability, rather than duty
disability. The Pension Board could choose to believe the opinions of two
doctors rather than the differing opinions of four other physicians, as the
first two doctor's opinions were not shown to be unreliable or at odds with the
available evidence. Carrillo v. Park Ridge Firefighters' Pension Fund, #1-13-0656,
2014 IL App (1st) 130656, 2014 Ill. App. Lexis 82.
A school police officer injured on the job
applied for line-of-duty disability retirement benefits. He had returned to
light duty, but was not able to return to full work duty, and was terminated.
The court ruled that the officer's preexisting health condition, which
contributed to his total disability, did not bar him from qualifying for
receiving line-of-duty disability retirement benefits. The officer was required
to show that he suffered at least a 25 percent impairment in at least two
specified body parts as a result of carrying out his actual duties. Since the
hearing officer found that the worker injured suffered a 25 percent impairment
to his back and a 25 percent impairment to his right arm due to an assault he
suffered at work, he qualified. The hearing officer had erroneously assumed
that the officer had to show that his impairment was caused exclusively by the
incident that occurred at work. Employees' Ret. Sys. of City of Baltimore v.
Dorsey, #29/12, 2013 Md. Lexis 13.
Three consolidated cases brought before the
highest court in New York involved officers who responded to try and assist at
the site of the terrorist attacks on the World Trade Center on September 11,
2001. The surviving spouse of an officer who died there asserted a claim for
line of duty death benefits, and two officers who survived sought accidental
disability retirement benefits. The pension fund argued that it had rebutted
the statutory presumption for responders at the scene of the attack that an
officer's disability or death as a result of a qualifying condition was caused
by his or her exposure at the World Trade Center site for purposes of benefit
upgrades. The court held that the fund did not meet the burden of disproving
that the death or the disabilities were not related to their work at the site.
Bitchatchi v. N.Y. City Police Dep't Pension Fund Bd. of Trustees, #219, 2012
N.Y. Lexis 3635, 2012 NY Slip Op 8566.
A firefighter who injured his back after lifting
a 360-pound patient onto a stretcher in an ambulance was awarded a
firefighter's duty-related disability pension. The Pension Board subsequently
terminated his benefits upon a determination that he had not been disabled when
the pension was granted. It relied on a medical examination by a doctor which
found that the firefighter was not and never had been disabled and was only
expressing a subjective claim of pain. The decision was not against the
manifest weight of the evidence and the Board was empowered to terminate the
benefits. Hoffman v. Orland Firefighters' Pension Board, #1-11-2120, 2012 Ill.
App. Lexis 952, 2012 IL App (1st) 112120.
A county welfare department employee
claimed that his panic disorder, a disabling psychiatric condition, was service
connected. The county, nevertheless, properly denied him a service-connected
disability retirement. because his doctors' supporting reports were based on
the employee's own uncorroborated self-reporting of his panic attacks. A fact
finder could discount those reports. The employee did make around 30 visits to
hospital emergency rooms for the attacks, which he claimed were triggered by
his job experiences with angry clients. Whether or not he believed that, the
evidence showed that only five panic attacks occurred before or on his last day
on the job. He failed to satisfy his burden of showing a measurable and real
connection between his permanent psychiatric disability and his job. The
medical records were also "remarkably devoid" of any mention of
supposed conflicts with angry clients. Valero v. Board of Retirement of Tulare
County Employees' Retirement Ass'n, #F062601. 205 Cal. App. 4th 960; 141 Cal.
Rptr. 3d 103; 2012 Cal. App. Lexis 522 (5th Dist.).
To be eligible for continuing health coverage benefits
under the Illinois Public Safety Employee Benefits Act, 820 ILCS 320/10, a
disabled employee must suffer an injury due to an unforeseen circumstance
involving imminent danger to a person or property requiring an urgent response.
A firefighter who suffered a "catastrophic" injury to his shoulder
during a training exercise with a live fire when a hose got tangled on a piece
of furniture was eligible for such benefits. He reasonably believed that he was
responding to an emergency. A second firefighter who suffered a knee injury
during a controlled exercise with no live fire that went on just as scheduled
was not eligible. The injury occurred when a co-worker tried to free him from
an obstacle, but there were no unforeseen developments and no imminent danger,
and therefore no emergency. Both firefighters were awarded line-of-duty
disability benefits, and only the continued payment of health benefits was at
issue. Gaffney v. The Board of Trustees of the Orland Fire Protection District,
#110012, 2012 Ill. Lexis 313, 2012 IL 110012.
A police officer who suffered an injured knee
during a traffic stop, and claimed that he had continuing pain and reduced
functioning after undergoing two surgical procedures was properly denied both a
line-of-duty disability pension and a not-in-duty disability pension. A
functional capacity evaluation (FCE) evaluator presented a comprehensive report
documenting that the officer was able to perform his job functions at a medium
physical demand level, with only some limitations on lifting and carrying. The
pension board properly relied on that report, and on the opinion of a doctor
who reviewed the report and agreed with its conclusion that the injured
employee could continue to function as a police officer. Goodman v. Morton
Grove Police Pension Board, #1-11-1480, 2012 Ill. App. Lexis 87, 2012 IL App
(1st) 111480, (1st Dist.).
A firefighter who suffered a disabling injury as
a result of an on the job fight with a co-worker was not entitled to
line-of-duty accidental disability retirement benefits. The fight did not
constitute a proximate and natural result of a job related accident as required
to qualify for such benefits. In the Matter of Robert Walsh v. Scoppetta, #225,
2011 N.Y. Lexis 3656.
An officer injured on duty while he attempted to
push a stranded motorist's vehicle out of a bank of snow, where it was
partially on the road, on an icy street was entitled to a line-of-duty
disability pension. His injuries occurred while performing his job duties. The
court rejected the argument that the possible availability of other persons to
assist the motorist somehow altered whether a line-of-duty or non-duty pension
should be awarded to the officer. The officer exercised his discretion in
carrying out the requirement that he stop and render assistance to the driver.
Ordinary citizens who passed by had no such duty. Mingus v. The Board of
Trustees of the Police Pension Fund of Peoria, #3-11-0098, 2011 IL App (3d)
110098, 2011 Ill. App. Lexis 1249.
A police officer injured when he entered his
unmarked police vehicle was not entitled to an on-duty disability pension, but
was entitled to a not-on-duty disability pension benefit. The vehicle ran over
his foot when it suddenly moved forward. This did not involve an act of police
duty inherently involving special risk not ordinarily assumed by a citizen in
the ordinary walks of life. "Rather, the Applicant faced the same risk
ordinarily assumed by any citizen who chooses to become a passenger in a
vehicle." Filskov v. The Board of Trustees of the Northlake Police Pension
Fund, #1-09-3151, 2011 Ill. App. Lexis 315 (Ill. App. 1st Dist).
Divided
appellate court panel denies a police officer's application for a line-of-duty
disability pension. The claimant alleged a disabling injury during a baton
training exercise. Three treating physicians described the claimant as not
believable, and one noted a pre-existing neck injury. Kramarski v. Bd. of Tr.
of Orland Park Police Pension Fund, #1-09-1557, 2010 Ill App. Lexis 654 (1st.
Dist).
In deciding whether a disabling injury is
duty-related, a subsequent off-duty accident that aggravates a work-related
condition does not break the causal chain, and the officer is entitled to a
duty-related pension. Devaney v. Bd. Trustees, Calumet City Police Pension
Fund, #1-09-0458, 2010 Ill. App. Lexis 39 (1st Dist.).
"Training exercises, although valuable as an
educational tool to prepare officers and firefighters for the types of events
they are expected to handle, are not responses ... what is reasonably believed
to be an emergency, under any plain reading of the statute." Gaffney v.
Orland Fire Prot. Dist., #1-09-0046, 2009 Ill. App. Lexis 1315 (1st Dist.).
Note: this decision appears contrary to another ruling by the same appellate
district - but with different panel members. See Lemmenes v. Orland Fire Prot.
Dist., #1-09-1133, 2010 Ill. App. Lexis 30 (1st Dist.).
Illinois firefighter who suffered a catastrophic
injury during an emergency training exercise was entitled to receive continuing
health insurance and line-of-duty disability benefits, after he was unable to
return to work. The applicable state statute does not differentiate between
"actual" and "simulated" emergencies, and the claimant was told
that a fellow firefighter was in urgent need of rescue and that he was to
respond as if it were real emergency. Lemmenes v. Orland Fire Prot. Dist.,
#1-09-1133, 2010 Ill. App. Lexis 30 (1st Dist.).
Illinois Supreme Court overturns the denial of a
disability retirement of a police officer who complained of back pain.
“Although no medical test, X-ray or MRI scan revealed a deformity or
abnormality which would explain the reason for [her] pain, this does not mean
that [she] failed to present objective evidence of her pain, nor does it mean
that [she] did not prove that she is disabled. The Board’s determination that
[her] pain was subjective and not demonstrated by objective proof ignores the
fact that every doctor who examined [her] believed that she was, indeed, experiencing
pain.” Kouzoukas v. Retirement Bd. of the Policemen’s Annuity Fund of Chicago,
#106976, 2009 Ill. Lexis 1293.
Although driving a car
involves only an ordinary risk, a police officer acts in a capacity that
involves a special risk when engaged in routine patrol. Appellate court
reverses a holding that he was entitled only to non duty-related disability
benefits. Jones v. Bd. of Trs., Police Pension Fund of Bloomington, #4-07-0687,
2008 Ill. App. Lexis 920 (4th Dist.).
A police officer's tripping over a snow bank and
falling from a fence while chasing suspects are "inherent risks of his
employment and not the result of unexpected events." N.Y. appellate panel
holds that the officer's application for accidental disability retirement
benefits was properly denied. Melendez v. N.Y. State Comptroller, #504636, 2008
N.Y. App. Div. Lexis 6756 (3rd Dept.).
Illinois appellate court upholds a line of duty
pension for a police officer who suffered a lower back injury in a scuffle with
a homeless man, which caused her lower back pain that prevented her from
performing the full range of duties as a police officer. The city cannot avoid
liability by claiming that she can return to work with accommodations, because
she was never offered a position within her limitations. Kouzoukas v.
Retirement Board of Chicago, #1-07-2623, 2008 Ill. App. Lexis 617 (1st Dist.).
Appellate court sustains a refusal to award
disability benefits. Contrary to the appellant's expert, the respondent's
expert found no evidence of herniated disks or orthopedic impairments that
would interfere with work activities as a police captain. Wilson v. N.Y. Police
& Fire Retir. Sys., #504325, 2008 N.Y. App. Div. Lexis 6016 (3rd Dept.).
New York appellate court denies benefits to a correction
officer that sustained a back injury while removing garbage. The officer's
injury was not causally related to his duties as a correction officer; garbage
removal is a duty assigned to maintenance workers. Martino v. Co. of Albany,
#502989, 2008 N.Y. App. Div. Lexis 166 (3rd Dept.).
Illinois appellate court rejects a pension board
determination that a police officer was not entitled to disability benefits for
a shoulder injury caused by a falling railway crossing gate. Raising a
malfunctioning crossing gate is not a maneuver generally assumed by the public,
and he was performing a duty-related task. Sarkis v. City of Des Plaines,
#1-06-2069, 2008 Ill. App. Lexis 68 (1st Dist.).
Appellate court rejects a claim for accidental
disability retirement benefits as a result of injuries a police officer
suffered in a 1980 motor vehicle accident. The hearing officer founded that a
cervical spine injury did not cause permanent incapacitation, and that the an
injury to his right hip was not caused by the 1980 accident. Morgani v. Hevesi,
#502764, 2007 N.Y. App. Div. Lexis 12410 (3rd Dept.).
Resolving conflicting appellate court decisions,
the Illinois Supreme Court holds that while the opinion of three physicians is
required, "the decision regarding disability is for the [pension] board,
not any individual physician." Wade v. City of N. Chicago Police Pension
Bd., #101265, 2007 Ill. Lexis 1694.
Illinois appellate court overturns a pension
board denial of duty-related disability benefits. There were justifiable
reasons for not undergoing additional remedial surgery. Roszak v. Kankakee
Firefighters' Pension Bd., #3-06-0865, 2007 Ill. App. Lexis 1076 (3rd Dist.).
An Illinois police officer assigned as a crime
scene technician was not entitled to a line of duty disability pension for
injuries sustained in a motor vehicle collision where he was a passenger.
Section 3--114.1(a) of the Illinois Pension Code awards duty-related benefits
for an "injury incurred in or resulting from the performance of an act of
duty." Fedorski v. Board of Tr. of Aurora Police Pens. Fund, #2-06-1004,
2007 Ill. App. Lexis 838 (2nd Dist. 2007).
N.Y. court officer, that was injured when a
defendant fell while handcuffed to him, was not entitled to receive accidental
disability retirement benefits. The officer's regular job duties entailed
escorting defendants. Wise v. N.Y. St. Comptroller, #501154, 2007 NY Slip Op
01927, 2007 N.Y. App. Div. Lexis 2626 (3rd Dept.).
Appellate court confirms a decision to deny a line
of duty pension to a depressed firefighter/EMT; the underlying causes of the
mental impairment were independent of his duties as a firefighter paramedic.
Hammond v. Firefighters Pension Fund of Naperville, #2-06-0133, 2006 Ill. App.
Lexis 1105 (2d App. Dist. 2006). {N/R}
Illinois appellate court concludes that a police
pension board is not bound by a duty-related finding of a workers' compensation
tribunal, and can come to a different finding. Demski v. Mundelein Police
Pension Board, #2-04-0990, 358 Ill.App.3d 499, 831 N.E.2d 704, 2005 Ill. App.
Lexis 636 (2nd Dist. 2005). {N/R}
Illinois court holds that a firefighter was
entitled to have all of his sick leave and vacation benefits reinstated for the
period of time that he was off work because of a work related injury that he
incurred when he fell down the stairs while reporting for roll call. Mabie v.
Vil. of Schaumburg, #1-05-2457, 2006 Ill. App. Lexis 259 (1st Dist. 2006).
{N/R}
Illinois appellate court affirms a line-of-duty
pension for an officer who had stressful confrontations with the police chief.
Village of Stickney v. Bd. of Police Pension Fund of Stickney, #1-05-1238, 2005
Ill. App. Lexis 1268 (1st App. Dist. 2005). [2006 FP Mar]
Because, under Illinois law, an injury arising in
the line of duty is defined differently for firefighters and police officers, a
pension board must apply the appropriate standard for each category of a
disability applicant. Jensen v. E. Dundee Fire Prot. Dist. Pension Fund,
#2-05-0301, 2005 Ill. App. Lexis 1162 (2nd Dist. 2005). {N/R}
A finding by police pension board, denying an
applicant's line of duty disability pension, was against the manifest weight of
the evidence, because it relied on a report of a physician whose conclusions
were inconsistent with the medical records. Wade v. City of North Chicago
Police Pension Bd., #2-04-0047, 833 N.E.2d 427, 2005 Ill. App. Lexis 793
(2005). {N/R}
Divided appeals court awards a duty-related
disability pension to a police officer who worked on the bike patrol, because
of an aggravated knee condition. Alm v. Lincolnshire Police Pension Bd.,
#2-03-1174, 352 Ill.App.3d 595, 816 N.E.2d 389 (2004). [2005 FP Feb]
Pension board's determination that an officer was
not entitled to a line of duty pension because post traumatic stress syndrome
from which he suffers did not result from one isolated event, but from series
of stressful occasions, is not against manifest weight of the evidence. Coyne
v. Milan Police Pension Board, #3-03-0066, 2004 Ill. App. Lexis 396 (3rd Dist.
2004). {N/R}
Federal appeals court rejects a Hispanic police
officer's parallel discrimination and retaliation suit as res adjudicata; he
lost a state court challenge to a decision to grant him only a non duty-related
disability benefits after a heart attack. The officer had testified against
management in a prior employment discrimination case. Garcia v. Village of
Mount Prospect, #02-2869, 2004 U.S. App. Lexis 3226, 93 FEP Cases (BNA) 446
(7th Cir. 2004). {N/R}
The Board of Trustees had a rational basis
for concluding that state law does not cover testicular cancer, and the denial
of an accident disability pension to a firefighter was proper. Albano v. Bd. of
Tr. of F.D.N.Y., 2 No. 112, 2002 N.Y. Lexis 3141 (N.Y. Oct. 15, 2002). {N/R}
Maryland appeals court holds that a firefighter
who died from cancer, as a result of having inhaled carcinogenic fumes in the
course of his duties, suffered an occupational "injury" and his
estate is entitled to receive special disability pension benefits. However, the
state's five-year statute of limitations runs from the date of injury, not the
date of disablement, and whether he had filed his claim on time depends on
whether his cancer was primary or metastatic. Board of Trustees, Fire and
Police Empl. Ret. Sys. v. Mitchell, #02292, 145 Md. App. 1, 800 A.2d 803, 2002
Md. App. Lexis 112 (2002). {N/R}
Firefighter who sustained permanent injury from a
fall while polishing a fire pole was entitled to a duty-related disability
pension. Thigpen v. Retir. Bd. of Firemen's Benef. Fund, #1-99-2651, 741 N.E.2d
276, 2000 Ill. App. Lexis 929. {N/R}
Illinois appellate court reinstates a disability
pension of a recruit firefighter who was injured while performing exercises at
the Fire Academy. O’Callaghan v. Retir. Bd. of Chicago, #1-98-0068, 1998 Ill.
App. Lexis 861, 302 Ill.App.3d 579, 706 N.E.2d 979. [1999 FP 20]
N.Y. appellate court upholds a time-in-service
requirement for disability pension benefits. Equal Protection Clause not implicated.
Biondi v. McCall, 658 N.Y.S.2d 490, 239 A.D.2d 837, 1997 N.Y.App.Div. Lexis
5537. [1998 FP 99]
Appellate court approves a
"line-of-duty" stress-related pension for an officer who suffered
psychological problems after he accidentally shot himself. Dillon v. Seattle
Police Pension Bd., 916 P.2d 956 (Wash.App. 1996). [1997 FP 62]
NY appellate court finds that a police officer's
loss of hearing from firing range practice was an occupational risk, and not a
"accident". Murphy v. Bratton, 640 N.Y.S.2d 17 (A.D. 1996). [1997 FP
21]
Appellate court awards a firefighter a
service-connected pension; claimant slipped on animal feces while alighting
from the fire truck, causing disabling injuries. Bridgwood v. Bd. Tr.,
N.Y.C.F.D. Pension Fund, 612 N.Y.S.2d 621 (A.D. 1994). [1995 FP 99-100]
Firefighter was entitled to accident related
disability benefits after an on-duty fall exacerbated his Tourette's Syndrome.
Makowski v. N.Y. St. Ret. Sys., 614 N.Y.S.2d 483 (A.D. 1994). {N/R}
Paramedics who had a history of on-the-job back
injuries were entitled to a duty-related disability pension. Sullivan v. Retir.
Bd. of Firemen's Benef. Fund, 267 Ill. App.3d 965, 642 N.E.2d 727 (1994); Zien
v. v. Retir. Bd. of Firemen’s Benef. Fund, 236 Ill. App.3d 499, 603 N.E.2d 777
(1992). {N/R}
Appellate court denies a duty-related disability
pension to a police officer who was intentionally shot by his wife during his
lunch period. Robinson v. N.Y. Police & Fire Retir. System, 597 N.Y.S.2d
201 (A.D. 1993). [1994 FP 20]
Georgia appeals court affirms denial of a
disability pension to a firefighter suffering from anxiety and depression.
Washington v. Georgia Firemen’s Pension Fund, 438 S.E.2d 118 (Ga.App. 1993).
{N/R}
Citizen's filing of brutality charges against a
police officer did not constitute an "unusual strain" or
"accidental injury"; officer was not entitled to accidental
disability retirement benefits on the basis of hypertension he claimed stemmed
from the charges and the internal investigation to which he had been subjected.
Arbogast v. Baltimore County, 95 Md. App. 674, 622 A.2d 808 (1993). [EHL&B
1271]
NYCPD Officer who fell in station house lavatory
was not entitled to line-of-duty benefits because of her inattentiveness.
Heintz v. Brown, 80 N.Y.2d 998, 607 N.E.2d 799 (1992). [1993 FP 132]
Permanent injury to ankle during a class exercise
was not an "accident." Disabled officer not entitled to duty-related,
accident caused disability pension. Becker v. Ward, 564 N.Y.S.2d 338 (A.D.
1991). [1992 FP 19-20]
A disabling injury to a police officer's left ear
as the result of a fire siren at a local fire station sounding when the officer
was about 60 feet away was not an "accidental injury." Hambel v.
Regan 571 N.Y.S.2d 355 (A.D. 1991). [1992 FP 101]
Officer who served on the police force for thirty
five years after wounded by three bullets was not entitled to accidental
disability retirement payments when he finally retired; officer was able to
fully perform his duties during that period, advancing in rank and even
successfully asking department to waive normal retirement age. Campazzi v.
Ward, 580 N.Y.S.2d 756 (A.D. 1992). [EHL&B 1207]
Appellate court denies benefits to an Albany area
officer who suffered hearing loss from an intrusion alarm while investigating a
possible burglary. McDonald v. Regan, 571 N.Y.S.2d 636 (A.D. 1991). [1992 FP
101]
Retirement board could not award ordinary
disability retirement benefits instead of higher accidental disability
retirement benefits to firefighter when there was no medical evidence that his
injuries stemmed from anything other than on the job accident. Connelly v. City
of Providence Retirement Board, 601 A.2d 498 (R.I. 1992). [EHL&B 1095]
Alcoholic police officer not entitled to a
disability pension; repetitious problem behavior occurred only during off-duty
periods. City of Indianapolis v. Hargis, 588 N.E.2d 496 (Ind. 1992). [1992 FP
163-4]
Florida Supreme Court denies compensation to
police officer who suffered a psychic injury after accidentally fatally
shooting a suspect. Holmes Beach [City of] v. Grace, 598 So.2d 71 (Fla. 1992).
[1992 FP 164]
Police officer was entitled to stress-related
disability pension for alcoholism, even though he did not drink at work, did
not suffer physical problems associated with alcohol abuse, but did exhibit
alcohol-related disciplinary problems over a four year period. Hudnut v.
Hargis, 561 N.E.2d 820 (Ind.App. 1990).
Public employees in New York not entitled to
accidental disability retirement benefits for injuries occurring in the
ordinary performance of their duties. May v. Regan, 551 N.Y.S.2d 990 (A.D.
1990); Pugliese v. State & Local Emp. Ret. Sys., 557 N.Y.S.2d 653 (A.D.
1990); Esposito v. Regan, 557 N.Y.S.2d 773 (A.D. 1990); De Zago v. N.Y. State
Police and Firemen's Retirement System, 550 N.Y.S.2d 214 (A.D. 1990).
[EHL&B 759]
Corrections officer was not entitled to
accidental disability retirement benefits for injuries occurring while lifting
snowblower into a department vehicle; injury as a result of ordinary physical
effort is not an "accident." Edwards v. State & Local Empl. Ret.
Sys., 561 N.Y.S.2d 861 (A.D. 1990). [EHL&B 887]
Prison psychologist who suffered post traumatic
stress disorder, following his role in hostage release incident, is denied
compensation. His mental suffering was not accompanied by necessary physical
injury. Fenwick v. Oklahoma State Penitentiary, 792 P.2d 60 (Okla. 1990).
Former narcotics detective is entitled to a
duty-incurred disability pension after he became addicted to cocaine he used
during his undercover assignments. Newlun v. State Dept. of Retirement Systems,
770 P.2d 1071 (Wash. App. 1989). [89 FP 100-2; AELE ref# 5348]
Police officer can receive duty disability benefits
for mental injury only if greater than day-to-day strain all employees
experience. Vil. of Random Lake v. Labor & Ind. Rev. Cmsn., 415 N.W.2d 577
(Wis. App. 1987).
Probationary officer dismissed for medical
disqualification not entitled to disability pension because no longer member of
department, even though application submitted while still employed. Brennan v.
Ward, 520 N.Y.S.2d 781 (A.D. 1987).
Mentally disturbed police officer was entitled to
disability pension despite his conviction for sexually assaulting his teenaged
daughter. T.N.M. v. Police & Firemen's Ret. Sys., 527 A.2d 883, 218 N.J.
Super. 274 (1987).
Emotional disturbance enhanced by accusations of
theft sufficient to support police officer's ordinary disability retirement -
but not accident disability. Archer v. Ward, 508 N.Y.S.2d 877 (Misc. 1986).
$1.5 million settlement recommended for police
officer mistakenly shot on duty by other officer as both looked for same
suspect; jury verdict was $2.1 million. Rose v. City of Los Angeles, C3652323,
reported in the Los Ang. Daily Journal, Mar. 2, 1987, p. 1, sec. 2.
Accident disability benefits properly denied when
no connection shown between present disability and earlier on-duty accident.
Schmidt v. McGuire, 501 N.Y.S.2d 55 (App. Div. 1986).
Officer entitled to accident disability
retirement because of boxing training injury even when not all facts presented
in application. Carr v. Ward, 506 N.Y.S.2d 338 (App.Div. 1986).
New Jersey imposes tough stance on duty-related
injuries; adopts "rush of force or uncontrollable power" test. Kane
v. Bd. of Trustees, 498 A.2d 1252 (N.J. 1985). Minner v. Bd. of Trustees, 498
A.2d 1252 (N.J. 1985). Canastra v. Bd. of Trustees, 498 A.2d 1252 (N.J. 1985).
"Perfectionist" could be entitled to
duty-related pension for anxiety over his responsibilities as a fire
lieutenant. Hennige v. Fairview Fire Dist., 472 N.Y.S.2d 204 (A.D. 1984).
Long term exposure to noise as firearms
instructor was not an accidental injury; disability not allowed for hearing
loss. McManus v. McGuire, 459 N.Y.S.2d 604 (A.D. 1983).
Maryland high court reinstates duty-related
pension; denial was arbitrary and unsupported in the record. Board of Trustees
of Fire and Police Retirement System v. Ches., 452 A.2d 422 (Md. 1982).
Officer who suffered stroke on museum detail
fails to convince court his illness was duty-related and caused by an ancient
curse of King Tut. LaBrash v. Ret. Bd .of San Francisco, Super. Ct., Feb. 9,
1982. [#87 FP 7]
Arbitrator orders payment for off-duty accident
injuries while using city vehicle. City of Detroit and D.P.O.A., 82-1 ARB ¶
8309, PBC ¶ 45,498 (Roumell, 1982).
Responding to roll-call bell was duty-related,
and employee was entitled to full pension benefits. Pollara v. Board of
Trustees, Police and Firemen's Retirement System of N.J., 183 N.J. Super. 505,
444 A.2d 616 (App. 1982).
Injuries sustained with use of departmental
vehicle while off-duty is an ordinary, not duty-related disability. Carreras v.
McGuire, 449 N.Y.S.2d 506 (A.D. 1982).
Mental reaction of employee who killed woman was
not a disabling injury giving rise to leave with pay. Sands v. Johnston, 406
So.2d 407 (Ala. Civ. App. 1981).
Employee entitled to duty-related pension for
deterioration of untreated knee injury suffered three-years earlier. City of
Lubbock v. Goodwin, 608 S.W.2d 835 (Tex. Civ. App. 1980).
Series of injuries can combine to entitle
applicant to disability pension. Toma v. State Board of Trustees, Police and
Firemen's Ret. Sys., 172 N.J. Super. 76, 410 A.2d 1175 (App. Div. 1980).
Motorcycle officer, injured while traveling to
work, entitled to duty-related disability pension. Board of Trustees of Atlanta
v. Christy, 269 S. E. 2d 33 (Ga. App. 1980).
Widow of employee who dropped dead while pushing
a wheelbarrow nevertheless entitled to line-of-duty death benefits. Daniels v.
Division of Retirement, 389 So.2d 340 (Fla. App. 1980).
On-duty aggravation of off-duty injuries can
entitle employee to full duty disability pension. Costello v. Board of Trustees
of Police Pension Fund, 405 N.Y.S.2d 725 (A.D. 1978).
Officer denied accidental disability pension for
eight-year old gunshot wound. Nolan v. Comptroller of the State of New York,
398 N.Y.S.2d 770 (A.D. 1977).
Duty-related disability pension ordered for
claimant even though city proved a preexisting condition. Board of Trustees v.
Sistrunk, 310 So.2d 405 (Fla. App. 1975).
Accidental injuries means those that are unusual
and are not ordinary. Conklin v. City of East Orange, 135 N.J. Super. 1313, 342
A.2d 872 (1975).
San Francisco police officer, who claimed that
his “compulsive’’ eating habits were induced by job stress, wins a duty-related
pension. In re Gene Smith and San Francisco Retirement Bd., 604 G.E.R.R. (BNA)
B-21 (1975), 4 Fire Pers. Res. Man. 96. {N/R}
B - Ordinary Disability/ Reinstatement
Under the California Public Employees Retirement Law, Government Code section 21156, disability is
defined as being “incapacitated physically or mentally.” Government employees
lose the right to claim disability benefits if they are terminated “for cause.”
Prior caselaw established exceptions under which a terminated-for-cause
employee can qualify for disability retirement when the conduct which prompted
the termination was the result of the disability. Further, a terminated
employee may qualify for disability retirement if he or she had a “matured
right” to a disability retirement before that conduct. Also, “a court, applying
principles of equity,” could deem an employee’s right to a disability
retirement to be matured to survive a dismissal for cause. Because a resignation
as part of a settlement of a pending “for-cause” termination effected a
permanent separation from state service under Gov. Code, § 19996, and Cal. Code
Regs., tit. 2, § 446, the resignation of a state employee who settled a pending
termination for cause was “tantamount to a dismissal” that completely severed
the employer-employee relationship and a theoretical possibility of
reinstatement, and therefore did not render the employee eligible for
disability retirement, absent a matured right to a disability retirement which
required incapacity. The prohibition against using disability retirement as a
substitute for the disciplinary process did not require an eligibility
determination based on medical evidence in the context of a resignation
pursuant to a settlement agreement. In this case, the employee who resigned as
part of a settlement agreement to avoid “for-cause” termination was not
entitled to disability retirement benefits, despite her prior arguments that
she was disciplined because of her union activities and her assertion that she could no longer function
as a disability evaluation analyst because of various job-related conditions. Martinez v. Public Employers’ Retirement System, #A153679, 33 Cal. App. 5th 1156, 2019 Cal. App. Lexis
311, 2019 WL 1487326.
Disabled officer that recovered did
not have to submit to a "physical examination, a psychological
examination, a physical ability examination, and a background
investigation," or complete a "re-training course" before being
reinstated. The chief was ordered to reinstate the officer and pay the
officer's attorney fees. State ex rel. Woods v. Navarre, (Toledo Police), #L-06-1292,
2007 Ohio App. Lexis 2622 (6th Dist.).
Although a pension board found that a police
officer was not longer disabled, the NYPD was justified in rejecting his return
to duty for psychological reasons. Ciacciullo v. Kelly; City of N.Y. v. NYC Civ.
Serv. Cmsn., #50, 2006 N.Y. Lexis 958 (N.Y. 2006). [2006 FP Jul]
Appellate court affirms decision to deny a
disability pension to a police officer who injured his ankle. The evidence
showed he was able to work as a HVAC technician and to ride his motorcycle.
Rizzo v. Bd. of Tr. Evergreen Park Police Pension Fund, #1-02-0747, 2003 Ill.
App. Lexis 476 (1st Dist. 2003). {N/R}
Disabled
firefighter entitled to reinstatement after his disability ceased. Driscoll v.
Dept. of Fire of Syracuse, 496 N.Y.S.2d 130.
Minnesota Appellate Court recognizes "phase
shift sleep syndrome" as a legitimate illness; disability pension proper
in appropriate cases. Ide v. Red Wing Police Relief Assn., 366 N.W.2d 610
(Minn. App. 1985).
Employee entitled to pension if no light duty
position available. Bowman v. Board of Pension Cmsnrs. of L.A., 202 Cal.Rptr.
505 (App. 1984).
Civil service commission could permanently
reclassify injured firefighter as alarm operator at less compensation. City of
Meridian v. Hill, 447 So.2d 641 (Miss. 1984).
Recovered employee entitled to be recalled from
disability pension status and returned to active duty. Board of Trustees v.
City of New Orleans, 365 So.2d 889 (La. App. 1978).
A
county medical records technician suffered a cumulative industrial injury to
her neck and right shoulder on the job, requiring surgery and resulting in
scarring. The Workers' Compensation Appeals Board awarded her a permanent
disability rating of 70 percent. She sought to rebut that, contending that she
would have a greater loss of future earnings because the injury rendered her
not amenable to rehabilitation. A California intermediate appeals court
rejected this argument, finding that she had produced no real evidence that she
was incapable of rehabilitation, but only a vocational expert's opinion for
determining her diminished future earnings showed a higher rating of
disability, but this did not comply with any approved method for rebutting the
determination. Contra Costa County v. Workers' Comp. Appeals Bd., A141046, 240
Cal. App. 4th 746, 193 Cal. Rptr. 3d 7, 2015 Cal. App. Lexis 828.
A city's charter required it to
provide disability benefit payments to police and firefighters suffering injuries
in the course of their employment that rendered them unable to perform required
job duties. The plaintiffs were firefighters who suffered disabiling injuries,
and claimed that they were entitled to a minimum disability benefit of 25
percent of their base pay regardless of the amount they earned in other
employment. The city at first paid them the benefits, finding them unable
because of disabling injuries, to perform their required duties. Subsequently,.
the city created new job assignments that included some of the plaintiffs'
former job duties, and took the position that the plaintiffs were no longer
disabled as they could perform the duties of these new job assignments which
were given the same job classifications as the jobs the plaintiffs had previously
performed. The city, therefore, required them to return to work and stopped
paying disability benefits. The Oregon Supreme Court held that the city
charter's use of the term "required duties" meant core duties
necessary or essential to the job. The court ruled that the city was not
entitled to summary judgment on the plaintiffs' claims because there was a
genuine issue of material fact "as to whether the duties of plaintiffs'
new job assignments were the 'required duties' for the job classifications that
plaintiffs previously held." Miller v. City of Portland, #SC S061421, 356
Or. 402 2014 Ore. Lexis 811.
When there was sufficient evidence that the
plaintiff was unable to perform the usual duties of a California Highway Patrol
officer, he was improperly denied disability benefits. This was despite the
fact that he could perform the tasks of a public affairs officer job to which
he had temporarily been assigned that was no longer available. Beckley v. Board
of Administration of CalPERS, #A135418a, 2013 Cal. App. Lexis 1045.
A deputy sheriff injured his knee at work. He
received 52 weeks of salary continuation benefits under Cal. Labor Code § 4850,
payable to him as an injured public safety officer. He then received another 52
weeks of temporary disability indemnity under Cal. Lab. Code, § 4653. The
county then stopped payment of further benefits, citing a statutory 104-week
limit on aggregate disability payments for an injury that causes temporary
disability to an employee. An intermediate California appeals court annulled a
trial court order requiring the city to keep paying the deputy temporary
disability benefits. This was improper, as the 52 weeks of salary continuation
benefits first received by the employee after his injury did count towards the
maximum limit of 104 weeks of temporary disability benefits. Workers'
Compensation Co. of Alameda v. Workers' Comp. Appeals Bd., #A135889, 2013 Cal.
App. Lexis 65.
An intermediate Illinois state appeals court upheld a trial court's
ruling that a municipal employer's obligation under a state statute to pay the
whole health insurance premium for an injured police officer and his family is
not applicable until and unless it is determined that he is entitled to a
line-of-duty disability retirement pension because he will never return to work
after suffering permanent disability caused by a catastrophic injury. Nowak v.
City of Country Club Hills, #111838, 2011 IL 111838, 2011 Ill. Lexis 1834.
To qualify for a line-of-duty disability pension,
an Illinois firefighter must show that he was injured while in the performance
of an act of duty. However, to qualify for additional relief under the Public
Safety Employee Benefits Act, the injury or death must occur as a result of a
"response to what is reasonably believed to be an emergency." Oskroba
v. Hoffman Estates, #1-09-2634, 2010 Ill. App. Lexis 942.
Federal appeals panel denies an equal protection
claim for compensation for injuries. Nevada Parole and Probation employees may
be treated her differently than Nevada Highway Patrol employees. "Nevada
offered a rational basis for its differentiation between the employees of the
divisions." Simontacchi v. Dept. of Pub. Safety, #09-15858, 2010 U.S. App.
Lexis 20653 (Unpub. 9th Cir.) affirming 2009 U.S. Dist. Lexis 24000 (D. Nev.).
In a case where an Illinois firefighter withdraws
an application for line-of-duty disability benefits and then seeks a
"not-on-duty" disability pension, the benefits should start as of the
day he filed the application for the lesser pension that he was awarded, and
not the earlier date. Philpott v. Bd. of Trustees of Charleston Firefighters'
Pension Fund, #4-09-0280, 2010 Ill. App. Lexis 16 (4th Dist. 2010).
Because an Illinois officer's disability resulted
from a prior condition, which existed at the time that her line-of-duty injury
was sustained, she is only entitled to a duty disability benefit at 50% of her
salary rate, instead of the usual 75% rate. Cole v. Retirement Board of the
Policemen's Fund of Chicago, #1-08-2722, 2009 Ill. App. Lexis 1180 (1st Dist.).
Because a statute was silent about cost-of-living
increases for the widows of disabled police officers, an Illinois appellate
court concludes that the legislature did not intend for surviving spouses to receive
such COLA increases. Therefore a pension board has no authority to grant COLA
increases. Village of Roselle v. Police Pension Bd., #2-07-0354, 889 N.E.2d
665, 2008 Ill. App. Lexis 470 (2nd Dist.); affirmed, #106741, 2009 Ill. Lexis
323. (Unpub. 2009).
U.S. Supreme Court holds that a retirement
program that offers older disabled officers only normal retirement benefits
does not violate federal age discrimination laws. The plaintiff, a 61-year old
deputy sheriff, was past the normal retirement age of 55. Kentucky Retirement
Systems v. EEOC, #06-1037, 128 S.Ct. 2361, 2008 U.S. Lexis 5032.
Appellate court rejects an employer's effort to
reduce benefits paid to a corrections officer that suffered a duty-related neck
injury. Although management identified five positions for which the officer had
been medically cleared, none of the jobs were available to him because public
transportation was not available and he did not drive. Penn. Dept. of
Corrections v. WCAB, #1614 C.D. 2007, 2008 Pa. Commw. Lexis 190.
Because the claimant was able to perform all of
his duties prior to a work-related injury to his knees, denial of benefits by
the sheriff, due to pre-existent injuries, was arbitrary and capricious.
Schmidt v. Putnam County Sheriff, Index #1432/06, Docket #2007-01219, 2008 N.Y.
App. Div. Lexis 2527 (2nd Dept.).
Under Pennsylvania state law an injured volunteer
EMT was entitled to an award for lost wages. Although she did not hold a paying
outside job, she should receive a pay award of at least equal to the statewide
average weekly wage. Bor. of Heidelberg v. Workers' Comp. Appeal Bd. (Selva),
#42-WAP-2006, 2007 Pa. Lexis 1678.
Ohio appellate court sustains decisions that a
state trooper should be removed because of a disability, and that she was not
entitled to a disability pension. Each agency must make an independent decision
regarding trooper injuries and disabilities and need not come to the same
conclusion. State ex rel. Grien v. Ohio Hwy. Pat. Retir. Sys., #06AP-506, 2007
Ohio App. Lexis 2172 (10th Dist.).
N.Y. appellate court denies a disability claim
brought by a corrections officer, even though he had received a favorable
determination from the Social Security Administration. A determination by the
SSA did not control the medical board's disability decision. Stephenson v.
N.Y.C. Employees' Retir. Sys., #2005-10395, Index #24524/02, 2006 NY Slip Op
9257, 2006 N.Y. App. Div. Lexis 14526 (2006). [N/R]
Appellate court finds that a retirement fund
wrongfully denied a firefighter a disability pension. California has a
statutory presumption (Gov. Code §31720) relating to heart disease, and the
retirement fund failed to rebut the presumption. §31720.5 presumption. Pellerin
v. Kern Co. Emp. Retirement, #F049335, 2006 Cal. App. Lexis 1949 (5th Dist.
2006). [N/R]
Arbitrator upholds management's decision to
exclude sick leave, vacation pay, and holiday pay from a police officer's
severance pay during the period she received workers' comp. benefits. There was
a long-standing past practice to deny those benefits while officer is on
disability leave. City of White Bear Lake and Law Enf. Labor Serv., BMS Case
#05-PA-643, 122 LA (BNA) 1589 (Daly, 2006). {N/R}
Because it is part of a police officer's normal
duties to chase suspects in the process of arresting them, a N.Y. appellate
court has held that the incident emanated from a risk inherent in the police
officer's regular job duties. The officer did not qualify for accidental
disability retirement benefits. Pappalardo v. Hevesi, #500823, 2006 NY Slip Op
08312, 2006 N.Y. App. Div. Lexis 13607 (3rd Dept. 2006). {N/R}
New Jersey appellate court affirms the denial of
an accidental disability pension to a municipal police officer that was wounded
in course of active military service while on military leave. Mason v. Dept. of
the Treasury, A-0356-05T1, 386 N.J. Super. 381, 901 A.2d 441, 2006 N.J. Super.
Lexis 189, 180 LRRM (BNA) 2638 (N.J.A.D. 2006). {N/R}
Illinois appellate court holds that a civil
service board decision to medically discharge a firefighter for neck and back
injuries was not barred by a prior denial by the Pension Board of a disability
application. "Neither res judicata nor collateral estoppel applies ...
[and] it is reasonable to conclude that the [legislature] deliberately set the
bar lower for a municipality seeking to discharge an unfit firefighter than for
a firefighter to obtain a disability pension." Dowrick v. Vil. of Downers
Grove, #2-05-0054, 840 N.E.2d 785, 2005 Ill. App. Lexis 1257 (2005). {N/R}
Federal court refuses to dismiss a suit
challenging an employer's long-term disability benefit plan that provides
lesser benefits for workers with mental disabilities than for those with
physical disabilities. The employer now has a burden of proving that the
difference in benefits reflects a rational classification of risks. Fletcher v.
Tufts Univ., #02-10923, 367 F.Supp.2d 99, 2005 U.S. Dist. Lexis 7237, 16 AD
Cases (BNA) 1228, 34 Empl. Benef. Cases (BNA) 2409, 32 BNA Pension & Ben.
Rptr. (BNA) 1026 (D. Mass. 2005). {N/R}
Illinois appellate
court concludes that a pension board correctly found that the spouse of a
deceased police officer was not entitled to benefits because she married him
after he had started to receive his disability pension, which was his
"retirement" within the meaning of the Pension Code. Stec v. Bd. of
Trs. of Oak Park Police Pension Fund, #1-04-0358, 2005 Ill. App. Lexis 134 (1st
App Dist. 2005). {N/R}
The California Public Employees Retirement System
will pay $250 million to settle charges it discriminated on the basis of age
against public safety officers who took disability retirements. The Plaintiffs
were police officers and firefighters whose disability pensions were slashed
because they started their careers at 31 or older. Arnett v. California Pub.
Employees' Ret. Sys., #95-03022, 41 (1995) G.E.R.R. (BNA) 127, settlement
approved (N.D. Cal. 2003); on remand from 179 F.3d 690 (9th Cir. 1999). {N/R}
Prison food service manager was entitled to
occupational disability benefits following a fall, even though he had
aggravating preexisting conditions, including morbid obesity and an
asymptomatic degenerative back condition. Langford v. Employees Retirem. Sys.
of Tex., #03-01-00081, 73 S.W.3d 560, 2002 Tex. App. Lexis 2873, 2002 WL 704675
(Tex.App. 2002). [N/R]
Federal Merit Systems Board rejects a
disabled officer's petition to recalculate his benefits based on age and years
of service. Rogers v. O.P.M., MSPB # DA-0831-97-0094-R-1, 1999 MSPB Lexis 1120.
[1999 FP 164]
City not required, as a W.C. benefit, to provide
a new van for a police officer who was shot and permanently crippled.
Guntersville (City of) v. Bishop, 728 So.2d 611 (Ala. 1998). Note: states which
have required the purchase of a vehicle are AZ, FL, ME, MS and IA; those which
have rejected this claim are CO, MD, NY, NC, PA and SC. ND and WV require
reimbursement for the price difference between a regular auto and a wheelchair
accessible van. [1999 FP 142]
Police chief who applied for a disability pension
when earning $49,800 per year was not entitled to an increase when the city
council granted him a retroactive raise to $59,556. Rhoads v. Bd. Tr. Calumet
City, 1997 Ill.App. Lexis 887. {N/R}
Appellate court in NY holds that disabled
firefighters are entitled to all raises and longevity pay given active members
of the same rank under a state statute requiring payment of "regular
salary or wages" to disabled members. Aitken v. City of Mt. Vernon, 606
N.Y.S.2d 755 (A.D. 1994). {N/R}
Ohio police officer was not entitled to full,
permanent disability benefits for knee and back injuries and an anxiety
disorder, where he had a good prognosis for recovery from his psychological
problems and he could pursue a career appropriate for his physical limitations.
Ohio ex rel. Chime v. Bd. of Trustees, 623 N.E.2d 32 (Ohio 1993). {N/R}
Disabled employee was not entitled to night shift
differential during time he was not working because of disability. Benson v.
County of Nassau, 524 N.Y.S.2d 733 (A.D. 1988).
Employee's age, education and experience can be
factors in determining percentage of disability; job-related hernia injury was
only 10% permanent disability. Armstron v. State of Iowa, 382 N.W.2d 161 (Iowa
1986).
Election under disability retirement plan to
receive maximum lifetime benefits and minimum survivor benefits was not
violative of spousal rights. Willis v. Board of Administration, Public
Employees" Retirement System, 226 Cal.Rptr. 567 (Cal.App. 1986).
Burden was on department to prove that police
officer's disability was permanent in order to terminate temporary disability
benefits -- "absolute certainty", however, not required. Cunningham
v. Com. Pennsylvania State Police, 507 A.2d 40 (Pa. 1986).
North Carolina supreme court orders fire marshal
to provide alternate housing, which is wheelchair-accessible, for disabled
volunteer fireman. Derebery v. Pitt County Fire Marshal, 347 S.E.2d 814 (N.C.
1986), reversing 332 S.E.2d 94 (N.Car. App. 1985).
Okay to split the difference: one expert said
70%, the other said 35% disability; court settled on midway figure of 52.5%.
City of Tulsa v. Smittle, 702 P.2d 367 (Okla. 1985).
City can require disabled personnel to report
their earnings, or withhold benefits. Top limit on compensation justified.
Atchley v. City of Fresno, 199 Cal.Rptr. 72 (App. 1984).
California city pays $81,000 to disabled
firefighter who's pension was not promptly paid; lost house and wife over
delay. Hollingsworth v. City of Antioch, Contra Costa Super. Ct. (1984).
Lump sum worker's comp settlement reduces service
connected disability benefits for Michigan fire and police personnel. In re
City of Sterling Heights, Macomb Co., Mich., Circuit Court, #83-2478 (2/29/84).
Disability pay is based on straight time, does
not include overtime, incentive pay, and allowances. Guielfi v. Marin Co. Emp.
Ret. Ass'n, 193 Cal.Rptr. 343 (App. 1983).
Disabled employee entitled to full pension if
unable to perform fire or police duties, even if able to hold civilian job.
City of Dallas v. Watkins, 651 S.W.2d 923 (Tex.App. 1983).
Employees on disability leave do not accumulate
vacation benefits. Chalachan v. City of Binghampton, 55 N.Y.2d 989, 434 N.E.2d
256, 449 N.Y.S.2d 187 (1982).
New York rules that disabled firefighters are
entitled to salary increments awarded after their retirement. Mashnouk v.
Miles, 447 N.Y.S.2d 889, 55 N.Y. 80, 432 N.E.2d 761 (1982).
Disabled personnel not entitled to accumulate
vacation time during leave; three-to-two-ruling. Chalachan v. City of
Binghamton, 439 N.Y.S.2d 754 (A.D. 1981).
Firefighters lose disability pay when they reach
retirement age even though others under an alternative system can work past age
62. Conomikes v. City of Binghampton, 440 N.Y.S.2d 71 (A.D. 1981).
Limitation on disqualifying earnings refers to
gross earnings before deduction. Roberts v. Police and Firemen's Retirement and
Relief Board, 412 A.2d 47 (D.C. App. 1980).
Part-time and paid-on-call personnel only entitled
to full injury benefits if they are unable to perform duties of their primary
employment, not their police or fire assignments. Jones v. Town of Wayland, 402
N.E.2d 63 (Mass. 1980).
Terminated personnel entitled to continuation of
salary and medical cost reimbursement until full recovery. Connors v. Bowles,
405 N.Y.S.2d 762 (A.D. 1978).
Accumulated sick time compensation. Marsille v.
City of Santa Ana, 134 Cal.Rptr. 743 (App. 1976).
City cannot reduce benefits of disabled superior
officers for "economy" reasons. Pease v. Colucci, 399 N.Y.S.2d 519
(A.D. 1977).
Duty disability leave not chargeable to vacation
time. Carvalho v. City of Cambridge, 362 N.E.2d 522 (Mass. 1977).
Fifth Circuit holds that firefighters are not
entitled to refund of pension contributions if they quit before retirement.
Muzquiz v. City of San Antonio, 520 F.2d 933 (5th Cir. 1975).
Ninth
Circuit holds that a police disability pension plan can deduct the amount of
worker's compensation a disabled or injured officer may receive. The offset
does not violate the Americans with Disabilities Act. Brown v. City of Los
Angeles, #06-0952, 2008 U.S. App. Lexis 7650 (9th Cir.)
California appellate court overturns a trial
judge's order that a public employee disability fund deduct, from an
ex-employee's monthly benefits, court-ordered restitution payable to a person
that was criminally victimized by the former county worker. Board of Retir. of
L.A. Co. v. Super. Ct. (People), #B158075, 124 Cal.Rptr.2d 850, 2002 Cal. App.
Lexis 4606 (Cal. App. 2d Dist. 2002). {N/R}
City was
entitled to deduct, from its payments to a disabled firefighter, those amounts
paid him under a state disability benefits program. Farber v. City of Utica, 2002
N.Y. Lexis 490 (N.Y. 2002). [N/R]
An arbitration award that offset pension benefits
for disabled retired police officers by workers' compensation benefits did not
violate officers' right to equal compensation under ADA, where officers, who
receive a 50-percent pension plus 66 2/3 percent workers' compensation benefits
receive more than their non-disabled counterparts, who receive only a
75-percent pension. Leheny v. Pittsburgh, 183 F.3d 220, 1998 U.S. App. Lexis
38497, 9 AD Cases (BNA) 933 (3rd Cir. 1999). {N/R}
City could deduct from a judicially imposed back
pay award, those amounts received by an injured firefighter under a disability
pension plan. Chicago (City of) v. Ill. Human Rts. Cmsn., 637 N.E.2d 589
(Ill.App. 1994). {N/R}
Disabled police officer may collect retirement
benefits and disability benefits which, when combined, totaled more than
regular salary. Lambert v. City of Bridgeport, 529 A.2d 184 (Conn. 1987).
"Regular compensation" includes
firefighter's night-pay differential in disability pay claim. Bower v.
Contributory retirement Appeal Board, 471 N.E.2d 1296 (Mass. 1984).
One employee cannot sue another employee for his
injuries; worker's compensation sole remedy. Malone v. Jacobs, 450 N.Y.S.2d 885
(A.D. 1982).
Washington State Supreme Court rules that damages
award against city by employee should be reduced by value of disability
benefits he will receive. Gillis v. City of Walla Walla, 616 P.2d 625 (Wash.
1980).
Disability benefits reduced by workmen's comp
awards in Georgia. White v. City Council of Augusta, 239 S.E.2d 532 (Ga. 1977).
Periodic disability pension review does not
unreasonably burden firefighter's right to travel or live elsewhere. Danaher v.
Michaw, 435 F.Supp. 717 (N.D. Ind. 1977).
Workmens compensation; double recovery not
allowed. Mazor v. St. of Md. Dept. of Corrections, 369 A.2d 82 (Md. 1977).
Firefighters lose bid to recover both workmen’s
compensation and disability pensions; cities entitled to payment credit. Lyons
v. City of Los Angeles, 119 Cal.Rptr. 159 (Cal.App. 1975); Patterson v. City of
Baton Rouge, 309 So.2d 306 (La. 1975).
Double recovery under workmen’s compensation
barred. Conklin v. City of East Orange, 135 N.J. Super. 1313, 342 A.2d 872
(1975).
E - Continuing Eligibility/ Testing
Appellate court
affirms holding that a correction officer sufficiently recovered from
post-traumatic stress disorder symptoms. Although the state's psychiatrist
opposed a contrary view expressed by a psychologist, his opinion was
articulate, rational, and based on the officer's medical records and a physical
examination. Harko v. N.Y. State Comptroller, #502721, 2007 N.Y. App. Div.
Lexis 13198 (3rd Dept.).
Illinois appeals court holds that
disability benefits may be revoked for an officer who no longer is disabled,
even though there are no light duty positions available to him. Rhoads v. Bd.
of Tr. of Calumet City Policemen's Pension Fund, #1-03-2012, 2004 Ill. App.
Lexis 579 (1st Dist. 2004). [2004 FP Aug].
Appellate court upholds a decision to terminate a
former police officer's non duty disability pension because a single medical
experts concluded that she was no longer suffering from depression and could
return to work. "A procedure that requires only one medical examination to
conclude that the plaintiff is no longer disabled, but three evaluations to
entitle her to the disability pension, is not inherently unfair and certainly
does not infringe upon any constitutional rights." Trettenero v. Police
Pension Fund of Aurora, #2-01-0544, 2002 Ill. App. Lexis 819 (Ill.App. 2nd
Dist. 2002). {N/R}
N.Y. upholds the right of a public agency, after
an uncontroverted medical exam, to recall a disabled employee to duty, without
a prior evidentiary hearing. A post-recall hearing is adequate protection of an
employee's rights. Uniform Firefighters L-2562 v. City of Cohoes, #29, 94
N.Y.2d 686, 731 N.E.2d 137, 2000 N.Y. Lexis 901. [2000 FP 100-1]
Pension authorities may require a disabled public
employee to undergo corrective surgery, but not if a previous operation was
unsuccessful. Kauffman v. Dolce, 627 N.Y.S.2d 750 (A.D. 1995). [1996 FP 53]
Videotape of injured firefighter changing a tire
was valid evidence to challenge his right to continued benefits. Large v. Bd.
of Mgrs., Ret. Sys., 623 So.2d 1174 (Ala.App. 1993). [1994 FP 147-8]
County could require disabled employees to
provide evidence of continuing disability at the former employee's own expense.
Randolph v. Cantrell, aff’d other grds, 707 P.2d 48 (Okla. app. 1985).
Highest court in N.Y. upholds a requirement that
a disabled firefighter submit to knee surgery or forfeit disability benefits.
Mondello v. Beekman, 433 N.Y.S.2d 439 (A.D. 1980); aff'd. 434 N.E.2d 1341
(1982). {N/R}
Monthly Law Journal Article: Analysis of the ADA as it Pertains to Medical Examinations of Police Officers Applying for Special Assignments, by Dave Corey, Ph.D., ABPP, 2007 (7) AELE Mo. L.J. 501.
A
woman employed by the California state Department of Justice as a Special Agent
Supervisor received industrial disability retirement for a spinal condition
because of on-the-job injuries. Subsequently, the Board of Administration of the
California Public Employees' Retirement System, based on an orthopedic
evaluation, determined that she was no longer incapacitated and was eligible
for reinstatement. The former employer offered to employ her again on the
condition that she complete medical and psychological evaluations and a
background evaluation. She rejected this offer. An intermediate California
appeals court ruled that the former employer had a mandatory duty under state
law to reinstate the employee following disability retirement once the Board
determined that she was no longer incapacitated, and could not require her to
comply with conditions prior to reinstatement. CA DOJ v. CalPERS, #B257492,
2015 Cal. App. Lexis 1011.
A deputy sheriff injured on the job had
previously worked nights and received a shift differential in his pay. While
off work following the injury, his regular pay, including the shift
differential, continued. When he returned to work, returning on modified duty,
he was put on the day shift and no longer paid the shift differential. He
claimed that this violated the terms of a California state statute under which
public employees who become disabled from an on-the-job injury and they go on a
leave of absence are guaranteed no loss of pay. Rejecting this argument, an
intermediate California appeals court pointed out that the employee was not now
on a leave of absence, so the statute did not apply. County of Nevada v. WCAB,
#C074133, 2014 Cal. App. Lexis 92.
A correctional employee suffered serious injuries
when the vehicle she was driving rolled over while she was going to pick up a
prisoner. She was awarded a partial impairment award, after which she applied
for permanent total disability benefits. After her application was denied, the
Wyoming Supreme Court reversed, finding that she had presented a prima facie
case that she was unemployable in her community as a result of her injuries.
The defendants failed to rebut that evidence by showing that there was gainful
employment she could qualify for within a reasonable geographical distance.
Stallman v. State ex rel. Wyo. Workers' Safety & Comp. Div., #S-12-0172,
2013 WY 28, 2013 Wyo. Lexis 32.
A volunteer at a county center for nursing and
rehabilitation was dismissed because he had engaged in sexually harassing and
erratic behavior towards members of the staff. He argued that terminating him
was disability discrimination because he had been diagnosed with Pervasive
Developmental Disorder. The court found that even if that condition could be
considered a disability, his sexually harassing actions made him unqualified to
perform an essential function of his job, relating properly with other people
in the program. It constituted a legitimate and non-discriminatory cause for
firing him, even if it could be argued that his behavior was caused by his
disability. McElwee v. County of Orange, #11-4366, 700 F.3d 635 (2nd Cir.
2012).
In a case where a police officer sought
accidental disability retirement benefits, the opinions of an orthopedic
surgeon and a neurologist might differ, because an injured officer can be
orthopedically disabled but neurologically intact. The court annulled the
comptroller's determination as not supported by substantial evidence. The
neurologist's testimony was not in conflict with the orthopedic surgeons
because they performed different types of evaluations. Rossi v. N.Y. State
Controller, #504860, 866 N.Y.S.2d 399, 2008 N.Y. App. Div. Lexis 7907 (3rd
Dept.).
Appellate court overturns a Retirement Board
finding that a Chicago Police officer was not disabled due to lower back pain.
"Although none of the objective medical tests or scans performed on the
plaintiff identified the source of her pain, each of the physicians that
examined the plaintiff, with the exception of Dr. S_, rendered a diagnosis as
to the source of her pain. ... Contrary to the Board's finding, none of the
physicians that treated or examined the plaintiff opined that she could return
to a full duty position with the Department." Kouzoukas v. Ret. Bd. of Chicago,
#1-07-2623, 383 Ill. App.3rd 942, 890 N.E.2d 1135, 2008 Ill. App. Lexis 617
(1st Dist.).
Appellate court rejects a disability retirement
petition because the applicant, a police sergeant, unreasonably refused to
undergo a surgical procedure to resolve his disability. Matter of Mullins v
N.Y. State Comptroller, #503291, 2008 N.Y. App. Div. Lexis 1835 (3d Dept.).
Appellate court rejects a disability retirement
petition. The police officer was not permanently incapacitated due to a nerve
problem and bursitis, which could be relieved by generally safe and successful
surgery. Quigley v. Hevesi, #503462, 2008 N.Y. App. Div. Lexis 1613 (3d Dept.).
New York appellate court affirms a decision to
end the pension benefits paid to a disabled police officer, following his
conviction for a misdemeanor. Furrer v. Suffolk Co. Police Dept. & WCAB,
#501460, 2007 N.Y. Slip Op. 8324, 2007 N.Y. App. Div. Lexis 11177 (3rd Dept.).
Because a sheriff's benefits plan resulted in
younger workers who were disabled to receive higher benefits than older workers
would receive, the EEOC established a prima facie violation of the ADEA,
because the plan was facially discriminatory. EEOC v. Jefferson Co. Sheriff's
Dept., #03-6437, 467 F.3d 571, 2006 U.S. App. Lexis 26981, 99 FEP Cases (BNA)
180, 2006 FED App. 0405P (6th Cir.). {N/R}
A disabled county nurse was not dismissed within
the meaning of California Government Code 31725 when management informed her
there were no positions available that would accommodate her work restrictions,
offered her vocational rehabilitation, and then placed her on unpaid injury
leave. Kelly v. County of Los Angeles, #B176552, 2006 Cal. App. Lexis1151 (2d
Dist. 2006). {N/R}
Sixth Circuit rejects an EEOC age discrimination
charge against a county, because disability pensions are restricted to workers
under age 55 and the disabled applicant was a 61 year-old deputy sheriff. EEOC
v. Jefferson Co. Sheriff's Dept., #03-6437, 424 F.3d 467, 2005 U.S. App. Lexis
20053, 2005 FED App. 0397P, 96 FEP Cases (BNA) 801 (6th Cir. 2005). {N/R}
New York court denies a firefighter's application
for accidental disability retirement benefits. His injury, caused by a fall
when the hose he was carrying had pulled, was not an unexpected accident. An injury
that occurs in the performance of ordinary employment duties is not caused by
an "accident." Pryor v. Hevesi, #96229, 788 N.Y.S.2d 239, 2005 N.Y.
App. Div. Lexis 78 (A.D. 2005). {N/R}
California appellate court denies a disability
pension to a partially disabled firefighter who initially was terminated for
disciplinary reasons, and then failed to qualify for reinstatement. Unless the
termination is because of an employee's disability, he or she is not entitled
to seek a disability pension after a disciplinary termination. Smith v. City of
Napa, #C044944, 120 Cal.App.4th 194, 2004 Cal. App. Lexis 1041 (3rd Dist.
2004). [2004 FP Oct]
California Supreme Court rejects a mental
disability retirement for a police officer that suffered allegedly retaliatory
discipline and threats from fellow officers after he reported the use of
excessive force by his coworkers. Nolan v. City of Anaheim, #S113359, 2004 Cal.
Lexis 5977 (Cal. 2004), affirming 104 Cal.App.4th 1170, 128 Cal.Rptr.2d 714
(2002). [2004 FP Sep]
5 U.S. Code §8337(a) does not restrict
eligibility for enhanced disability payments to only those law enforcement
officers who meet the minimum age and service requirements. Pitsker v. O.P.M.,
#99-3462, 234 F.3d 1378, 2000 U.S. App. Lexis 32130 (Fed Cir. 2000). {N/R}
Employee medical records were discoverable by
subpoena where the chief seeks to involuntarily retire a disabled N.Y. police
officer. Burns v. N.Y. Police & Fire Ret. Sys., #82429, 1999 N.Y. App.Div.
Lexis 967, 605 N.Y.S.2d 322. [1999 FP 52]
Permanent total disability means the employee
will never be able to work at any job. The fact the claimant will be unable to
resume a career as a police officer does not render him permanently totally
disabled, and entitled to a lifetime pension. State ex. rel Chime v. Bd. of
Trustees, 60 Ohio St.3d 17, 623 N.E.2d 32 (1993). {N/R}
British Home Office reports that 56 percent of
police retirements in 1991 were for "ill health." Police Review 25
(London: 1 Jul. 1994). {N/R}
Pension board was not vested with the exclusive
right to determine whether a disability has ceased. Police dept. lawfully
refused to reinstate officer with active medical deficiency. Buttitta v.
Chicago, 9 F.3d 1198 (7th Cir. 1993). [1994 FP 51]
A disabled police officer's resignation, agreed
to as part of a workers" comp. settlement, did not sever his rights to a
line-of-duty disability pension; he was a police officer at the time of injury
and at the time he applied for a disability pension and the pension cannot be
refused because he resigned and no longer is an officer. Greenan v. Bd. of Tr.
Police Pension Fund, 573 N.E.2d 825, 1991 Ill.App. Lexis 470. {N/R}
Denial of disability benefits to employees over
age 60 violates age discrimination in employment act. Betts v. Hamilton Co. Bd.
of Medical Retardation, 848 F.2d 692 (6th Cir. 1988).
Firefighter's widow not entitled to disability
retirement benefits when fire fighter died prior to approval of payment of such
benefits. State Dept. of Admin. v. Miranda, 513 So.2d 170 (Fla. App. 1987).
Disabled firefighter could switch to ordinary
pension, and must be paid according to the current salary at the time of the
switch. Cooper v. River Forest Fireman's Pension Bd., 510 N.E.2d 1222 157
Ill.App.3d 944 (1987).
Cause of injury must be established in original
claim. Castricone v. Regan, 427 N.Y.S.2d 525 (A.D. 1980).
Four years too long to wait for disability
application. Scotto v. Bd. of Trustees of New York, 429 N.Y.S.2d 3 (A.D. 1980).
Volunteer entitled to benefits even though city
failed to list him in insurance application. Miner v. City of Vernonia, 614
P.2d 1206 (Ore. App. 1980).
San Francisco cracks down; pension applicant
arrested for untruthful claim. People v. Albert, Super. Ct., C&C of San
Francisco (1980).
G - Hearing procedures and appeals
Burden of proof: New York court rules that
when a firefighter is on paid disability leave as a result of a duty-related
injury, the city has the burden of proof of showing that the claimant is fit
for full duty. Connerton v. Ryan, #2010-0476, 2010 NY Slip Op 20174, 2010 N.Y.
Misc. Lexis 1017 (Broome Co. Sup. Ct.).
Although it was proper for a police and fire
pension board to allow the employer to intervene in a claim dispute, the
claimant is entitled to due process at the hearing. While administrative
proceedings are not judicial proceedings, "the parties are entitled to a
fair hearing before a disinterested tribunal." The Village attorney
"assumed an advocacy role in support of the Village and against plaintiff.
Her actions infected the whole proceedings and denied plaintiff a fair and
impartial hearing." Her role as a legal advisor to the Board was
compromised by her partisan participation. Williams v. Bd. Trustees, Morton Grove
Firefighters' Pension Fund, #1-08-1212, 2010 Ill. App. Lexis 60 (1st Dist.).
An Illinois firefighter who was denied
reinstatement due to a duty-related injury was not automatically entitled to
disability retirement benefits. “Given the compelling public interest in
ensuring the fitness of firefighters to perform their duties, it is reasonable
to conclude that the [state legislature] deliberately set the bar lower for a
municipality seeking to discharge an unfit firefighter than for a firefighter to
obtain a disability pension. ... Moreover, he was not entitled to a hearing on
his application for ordinary disability retirement, after his claim for a
duty-related pension was denied. The standard for proving disability is the
same for both duty and ordinary disability benefits.” Reed v. The Retirement
Board of Chicago, #1-08-3544, 2009 Ill. App. Lexis 1007 (1st Dist.).
Arbitrator finds a grievance to be non
justiciable. The union should seek proper relief for the grievant before the
state Pension Board and the Workers Compensation Court. City of Tahlequah,
Okla. and IAFF L-4099, FMCS Case #06/512272-7, 124 LA (BNA) 1147 (Nicholas,
2007; rptd. 2008).
N.Y. appellate court overturns the denial of a
line-of-duty disability retirement application. Following an altercation with
an emotionally disturbed person, a doctor then diagnosed him with a herniated/
bulging/ degenerative disc. The Pension Fund failed to address the officer's
orthopedic complaints. Matter of Barbour v. Kelly, #103095/07, 2008 N.Y. Misc.
Lexis 71 (N.Y. Co. Sup.).
Appellate court affirms the dismissal of a
disability retirement claim after the applicant refused to be examined by
physicians. The Pension Board had warned the ex-officer that a withdrawal of
his application for benefits could result in as loss of jurisdiction over a
subsequent filing. Tucker v. Bd. of Trs. of Police Pension Fund of Park Forest,
#1-06-1827, 376 Ill. App.3d 983, 876 N.E.2d 121, 2007 Ill. App. Lexis 961 (lst
Dist.).
A reviewing court must accept a medical board's
conclusion that a firefighter is not disabled if supported by credible
evidence; a trial court cannot weigh the medical evidence and substitute its
own judgment for that of the board. Clarke v. Bd. of Tr. NYCFD Pension Fund,
Index #33929/04, Docket #2006-09450, 2007 N.Y. App. Div. Lexis 12362 (2nd
Dept.).
Illinois appellate court rejects the argument
that the denial of a Chicago firefighter's duty-related disability application
is legally incompatible with management's refusal to reinstate him as a
firefighter. Reed v. Retirement Bd. of the Fireman's Annuity, #1-06-1710, 2007
Ill. App. Lexis 954 (1st Dist. 2007), relying on Dowrick v. Vil. of Downers
Grove, #2-05-0054, 362 Ill.App.3d 512, 840 N.E.2d 785 (2005): "... it
seems incongruous that separate administrative findings could lead to a
firefighter being discharged because of a disability while also being denied a
disability pension. However, comparison of the statutes respectively governing
proceedings before the Board of Commissioners and those before the Pension
Board suggest a possible rationale for such a result."
A New York correction officer must be afforded
notice when management exercises its authority to apply for the officer's
retirement without the officer's consent. He is not entitled to a hearing
process separate from the proceeding before the Comptroller. Davis v. Co. of
Westchester, #501774, 2007 N.Y. App. Div. Lexis 8580, 2007 NY Slip Op 6147 (3rd
Dept.).
A federal corrections officer was entitled to a
hearing as to whether management "arbitrarily and capriciously denied him
restoration to duty as a "partially recovered" injured employee.
Gilbert v. Dept. of Justice, #AT-0353-04-0818-I-1, 2005 MSPB Lexis 6568 (MSPB
11-5-2005). {N/R}
New York appellate court finds that a city is not
required to bargain with a union over arbitration of employee disability
benefits. Poughkeepsie Firefighters L-596 v. N.Y.P.E.R.B., #96151, 792 N.Y.S.2d
637, 2005 N.Y. App. Div. Lexis 2393 (App. Div. 3d Dept. 2005). [2005 FP Aug]
Although a pension board has the discretion to
allow city attorneys to participate in a police officer disability hearing,
absent a statute, a city does not have a right to participate or cross-examine
witnesses. Vil. of Stickney v. Bd. of Tr. of the Police Pension Fund,
#1-03-1111, 807 N.E.2d 1078, 2004 Ill. App. Lexis 316. {N/R}
Employee's physician, who treated her for
fibromyalgia and found her to be totally disabled, was entitled to deference,
absent contrary evidence. Hatcher v. Barnhart, #03-3459, 2004 U.S. App. Lexis
10056 (8th Cir. 2004). {N/R}
West Virginia Supreme Court holds that the
minimal due process rights that must be accorded a police officer or
firefighter who seeks a duty-related disability pension includes the right to representation
by legal counsel, to take the deposition of physicians appointed by the pension
authority, to appear before the decision-making panel to present his reasons
why he qualifies, and to receive written reasons for denying benefits. Stull v.
Firemens Pension Fund, #24757, 202 W.Va. 440, 504 S.E.2d 903, 1998 W. Va. Lexis
73 (1998). {N/R}
A former employee, in a disability discrimination
lawsuit may not make contradictory statements about his ability to work, in an
application for a disability pension. Lee v. City of Salem, #00-1134, 259 F.3d
667, 12 AD Cases (BNA) 10 , 2001 U.S. App. Lexis 17119 (7th Cir.). {N/R}
New York's highest courts require public
employers to give an employee a pre-separation hearing before involuntarily
removing an employee for disability reasons. Prue v. Hunt, 78 N.Y.2d 364, 581
N.E.2d 1052 (1991). [1992 FP 84-5]
California appellate court holds that a city must
offer a hearing before denying a disability pension to an injured public safety
employee. Statute of limitations on legal actions ran from date city denied the
plaintiff a hearing, not from the date he requested one. Gregg v. City of
Laguna Beach, 91 D.A.R. 7353 (1991).
Police officer involuntarily retired for alleged
psychological disability without notice was denied due process. Barberic v.
City of Hawthorne, 669 F.Supp. 985 (C.D. Cal. 1987).
Employer, as contributor to disability pension
fund, has legal standing to contest pension board rulings. Carnes v. County of
Alameda, 222 Cal.Rptr. 719 (App. 1986).
Court upholds right of city to involuntarily
retire disabled fire and police personnel, and to reduce their compensation.
Central Falls Firefighters L-1485 v. City of Central Falls, 465 A.2d 770 (R.I.
1983).
Medical board has final say in resolving a
conflict of testimony on cause of disability. Smith v. New York State
Policemen's and Firemen's Ret. Sys., 453 N.Y.S.2d 780 (A.D. 1982).
Retirement board decision final unless clearly
contradicted by substantial evidence. Albenga v. McGuire, 473 N.Y.S.2d 314
(A.D. 1981).
City may dismiss employee, disabled by off-duty
illness or injuries; pretermination hearing not required. Economico v. Village
of Pelham, 415 N.Y.S.2d 239 (A.D. 1979).
Eligibility for duty-related pension requires a
majority vote of pension board. Gabos v. Codd, 415 N.Y.S.2d 222 (A.D. 1979).
Appellate court finds it improper that one agency
refuses to grant employee a disability pension and department also refuses to
reinstate him due to medical unfitness. Roccaforte v. City of San Diego, 152
Cal.Rptr. 558 (App. 1979).
Hearing authority must make findings of fact to
support denial of pension benefits. State ex rel, Ruthenberg v. Annuity and
Pension Bd. of Milwaukee, 278 N.W.2d 835 (Wisc. 1979).
Employee's medical evidence must be given
appropriate weight; reasons for adopting department adverse report must be
given. Perkins v. Bd. of Trustees, N.Y. Fire Dept. Pension Fund, 298 N.Y.S.2d
691 (A.D. 1977).
Workmen's compensation and disability retirement
laws are separate remedies; conflict of rulings possible. Kieper v.
Fitzgibbons, 399 N.Y.S.2d 376 (Misc. 1977).
Relief fund must administer physical exam to
employee who claims a disability, if such exam is a prerequisite for pension.
Fassbinder v. Minneapolis Fire Dept. Relief Assn., 254 N.W.2d 363 (Minn. 1977).
H - Heart, Lung and Presumption
laws
Texas enacts a law creating a job-related
presumption for firefighters and EMTs who suffer illness or death from a
smallpox immunization, TB, cancer, or heart attack. Senate Bill 310. [2005 FP
Aug]
California appellate court sustains a job-related
benefits claim by a police officer who contracted cancer. The burden of showing
that the illness did not arise from his employment fell on the city. City of
Long Beach v. W.C.A.B., #B173437, 126 Cal.App.4th 298, 23 Cal.Rptr.3d 782, 2005
Cal. App. Lexis 127 (2d App. Dist. 2005). [2005 FP Apr.]
New Jersey Supreme Court awards compensation
benefits to a retired fire captain who contracted emphysema, even though he was
a heavy smoker for many years and had a family history of the condition.
Lindquist v. Jersey City Fire Dept., A-84-01, 175 N.J. 244, 814 A.2d 1069, 2003
N.J. Lexis 25 (2003). [2003 FP Jun]
Maryland's highest court disallows a city the
opportunity to challenge, with expert testimony, the factual basis for a
statutory presumption that heart disease of a police officer or firefighter is
not job-related. Testimony must be specific to each claimant. City of Frederick
v. Shankle, #24 Sept. Term 2001, 785 A.2d 749, 2001 Md. Lexis 934 (2001). [2002
FP Mar]
Mere fact a firefighter, disabled from lung
disease, was a heavy smoker, does not prevent his recovery under the state's
heart and lung statute. McKenzie v. City of Bossier City, 585 So.2d 1229
(La.App. 1991). [1992 FP 149]
Once disabling disease is demonstrated,
presumption is that it is job related -- Iowa Supreme Court. Larsen v. Board of
Trustees of Police Ret. Sys., 401 N.W.2d 860 (Iowa, 1987).
Fire chief suffering from hypertension and heart
disease was not entitled to presumption of accidental condition suffered in the
line of duty when he failed to take a clearly required pre-employment physical
exam. Cumbie v. City of Milton, 496 So.2d 923 (Fla. App. 1986).
Rheumatic heart disease not job related or
induced by stress unless accompanied by a heart attack. Vecchiarello v. Bd. of
Trustees of Pension Fund of City of New York, 453 N.Y.S.2d 971 (Misc. 1982).
Captain who suffered heart attack while carrying
stretcher not entitled to duty benefits in spite of state heart law. Park v.
Regan, 451 N.Y.S.2d 942 (A.D. 1982).
Heart attack on the golf course was partially
caused by stress and smoke inhalation; duty related benefits ordered. City of
Cincinnati and Firefighters L-48, 81-1 ARB ¶ 45,367.
New York's highest court upholds police - fire
heart laws; creates presumption of duty-related and accident causation.
Uniformed Firefighters Assn. v. Beekman and DeMilia v. McGuire, 438 N.Y.S.2d
746, 420 N.E.2d 938, 52 N.Y.2d 463 (1981).
Heart attack found unrelated to serious fall.
Seil v. Regan, 424 N.Y.S.2d 792 (A.D. 1980).
Mere fact heart attack occurs on duty is not
enough. City of Houston v. Caldwell, 582 S.W.2d 494 (Tex. Civ. App. 1979).
Heart attack of officer, eleven years earlier,
was not an accidental on-duty injury. Sansone v. Levitt, 413 N.Y.S.2d 500 (A.D.
1979).
Heart and lung law entitles employee to award
when evidence of causation is conflicting. Caldwell v. Div. of Retirement, 372
So.2d 438 (Fla. 1979).
Substantial evidence test applied to a heart
attack claim. Knapick v. Vil. of Endicott, 396 N.Y.S.2d 510 (A.D. 1977).
Exemption for certain cities from application of
"heart laws" is a denial of equal protection. Norris v. Seibels, 353
So.2d 1165, remanded at 353 So.2d 1169 (Ala. 1978).
Heart attack presumption laws rebuttable by
competent evidence, if law so provides. Failure to follow presumption was
harmless error here. Caldwell v. Div. of Retirement, 344 So.2d 923 (Fla. App.
1977).
Presumption that heart attacks are
"duty-related" can be overcome by contrary evidence -- New York court
rules. Bunnell v. New York State Policemen's and Firemen's Ret. Sys., 377
N.Y.S.2d 935 (A.D. Dec. 30, 1975).
Laws creating presumption of work-related heart
attacks held constitutional by Maryland high court. Board of County Cmsnrs. v.
Colgan, 334 A.2d 89 (Md. 1975).
Compensation for heart attack or hypertension
death or disability of Connecticut firemen upheld as constitutional by state
supreme court. Town of Manchester v. Grover, (Conn. 1975); #74-1578, 44 L.W.
3008; See also: Board of Cmsnrs. v. Colgan, 334 A.2d 89 (Md. 1975).
Chest pains during "housekeeping"
duties do not qualify firefighter for benefits from a later heart attack. City
of Tuscaloosa v. Howard, 318 So.2d 729 (Ala. App. 1975); Schwartz v. City of
Duluth, 264 Minn. 514, 119 N.W.2d 822.
Fireman with heart attack recovers salary but not
fringe benefits, hospital bill paid by city insurance. Court denies
"double payment." Geremski v. Dept. of Fire of the City of Syracuse,
357 N.Y.S.2d 975 (1974).
See also: Alcohol and Drug Abuse; Sick Leave; Handicap Laws/ Abilities Discrimination; Light Duty Assignments; Retirement
Rights and Benefits; Stress Related Benefits and
Claims.