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
     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
     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).

     C - Benefit Disputes
     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).

     D - Offset and Subrogation

     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}

     F - Other Issues

     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 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.