In the Matter of Pat Sica, Respondent,v.Thomas P. DiNapoli,, Appellant.BriefN.Y.January 2, 2018To Be Argued by: WILLIAM E. STORRS Time Requested: 15 Minutes A.D. No. 522020; Albany County Index No. 3681-15_ APL-2017-00093 Court of Appeals; of tfjc H>tate of gorfe IN THE MATTER OF THE APPLICATION OF PAT SICA, Petitioner-Respondent, -against- THOMAS P. DiNAPOLI, AS STATE COMPTROLLER, Respondent-Appellant. REPLY BRIEF FOR APPELLANT ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant The Capitol Albany, New York 12224 (518) 776-2037 (telephone) (518) 915-7723 (facsimile) BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General PETER H. SCHIFF Senior Counsel WILLIAM E. STORRS Assistant Solicitor General of Counsel Dated: October 30, 2017 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 ARGUMENT POINT I THE RECORD CONTAINS SUBSTANTIAL EVIDENCE SUPPORTING THE CONCLUSION THAT SICA’S INJURIES DID NOT RESULT FROM AN ACCIDENT, BUT RATHER A FORESEEABLE RISK OF HIS JOB 2 POINT II ANY CHANGE TO THE STATUTORY REQUIREMENTS FOR ACCIDENTAL DISABILITY RETIREMENT BENEFITS SHOULD BE MADE BY THE LEGISLATURE 5 POINT III THE HEART PRESUMPTION IS NOT AN INDEPENDENT GROUND TO SUPPORT THE MEMORANDUM AND JUDGMENT 6 CONCLUSION 10 i TABLE OF AUTHORITIES CASES PAGE Ashley, Matter of v. DiNapoli, 97 A.D.3d 1057 (3d Dep’t 2012) 7 Bitchachi, Matter of v. Board of Trustees of New York Pension Fund, 20 N.Y.3d 268(2012) 7, 8,9 Menna, Matter of v. New York City Employees’ Retirement System, 59 N.Y.2d 696 (1983).. 5 Meyer, Matter of v. Board of Trustees of N.Y. City Fire Dept., 90 N.Y.2d 139 (1997) 8 Schussler, Matter of v. Codd, 59 N.Y.2d 698 (1983).... 6 Uniformed Firefighters Assn. v. Beekman, 52 N.Y.2d 463 (1981) 7 Valentin, Matter of v. Board of Trustees, 59 N.Y.2d 702 (1983) 5-6 Walos, Matter of v. Regan, 188 A.D.2d 822 (3d Dep’t 1992) 7 ii TABLE OF AUTHORITIES (CONT’D) PAGE STATE STATUTES Retirement & Social Security Law § 363 § 363-a(l) 1,5,7 2,6 MISCELLANEOUS Administrative Code of the City of NY § 13-252(1) 7 hi PRELIMINARY STATEMENT As we explained in our opening brief, the Court should reverse the Third Department’s decision because substantial evidence supports the Comptroller’s determination that petitioner Pat Sica’s injuries did not result from an “accident” within the meaning of Retirement & Social Security Law (RSSL) § 363, but rather from a foreseeable risk inherent in his duties as a firefighter. In arguing to the contrary, Sica raises three arguments warranting response. First, in an effort to refute the Comptroller’s conclusion that Sica’s injuries resulted from the foreseeable job risk of exposure to toxic fumes, he speculates about possible explanations other than toxic fumes for the fact that two supermarket workers were rendered unconscious while cleaning inside or near a walk-in freezer at the back of a supermarket. Such alternative theories do not however alter the conclusion that the risk of exposure to toxic fumes was a foreseeable risk of his job. Second, Sica urges the Court for policy reasons to adopt a rule that treats injuries from foreseeable job risks as “accidental” for purposes of accidental disability retirement benefits whenever exigent circumstances make it reasonable for an applicant to disregard the foreseeable risks of the applicant’s duties, even though the Legislature has not adopted any such rule. And third, Sica suggests that the “heart presumption” provided by RSSL § 363-a(l) provides an alternative basis of affirmance, relying on an incorrect understanding of that presumption. Because none of these arguments has merit, the Court should reverse the judgment annulling the Comptroller’s determination. ARGUMENT POINT I THE RECORD CONTAINS SUBSTANTIAL EVIDENCE SUPPORTING THE CONCLUSION THAT SICA’S INJURIES DID NOT RESULT FROM AN ACCIDENT, BUT RATHER A FORESEEABLE RISK OF HIS JOB In seeking to refute the Comptroller’s determination that Sica’s injuries resulted from a foreseeable risk inherent in his duties as a firefighter, Sica argues that he could not reasonably have anticipated a problem with air quality when he responded to an emergency call to assist injured persons having difficulty breathing on the day in question. Sica does not dispute that his job required him to respond to emergency calls to assist injured persons and included an expectation that he work in hazardous environments, including those presenting a risk of exposure to toxic fumes; that he had received training in how to provide emergency 2 medical care and to avoid exposure to toxic fumes; and that he regularly responded to medical emergencies, including those involving exposure to toxic fumes. Instead, Sica argues (Br. at 13-17) that the risk of exposure to toxic fumes was not reasonably foreseeable on the day in question because one can imagine other explanations for why two supermarket workers exhibiting no evidence of external trauma might both have been rendered unconscious in or near a confined space (the walk-in freezer). The issue here, however, is whether Sica’s own testimony together with his written job description provided substantial evidence to support the Comptroller’s determination that his exposure to toxic fumes on the day in question arose from a foreseeable risk inherent in his duties as a firefighter. As we previously explained, the record provided that evidence. The fact that Sica’s job posed other possible hazards as well does not change that conclusion. Moreover, the alternative explanations Sica offers are speculative and even implausible. For example, Sica suggests that, for all he knew, the workers had been stabbed. He even claims (Br. at 25) that he testified at his hearing 3 without rebuttal that he thought his lieutenant suspected a stabbing. That was not his testimony; his testimony was that he had no idea what his lieutenant was doing during the medical response, and that, more generally, when an emergency responder walks into a situation, “sometimes, you know, you wonder if it’s a stabbing or, you know, some kind of situation like that” (76).1 Any such initial speculation about whether this incident involved a stabbing, however, would have been dispelled within moments of arriving on the scene. Two workers were unconscious with no sign of external trauma. At a stabbing, one would expect to see blood. Sica offers additional speculative theories in his brief, though nothing in the record suggests any of these theories crossed his mind at the time. For example, he now suggests (Br. at 25) that the workers could 1 Sica also misrepresents the record in claiming (Br. at 5) that his testimony (at page 72 of the record) establishes that his lieutenant ordered him to leave his protective gear on the fire truck. Sica actually testified only that fire department protocol did not require him to wear his self-contained breathing apparatus when responding to emergency medical calls. (78.) But nothing in the record suggests that Sica could not have worn that apparatus, requested that someone else get it for him once inside, or move the victim he was assisting away from the confined space. 4 both have been simultaneously injured by electric shocks, drug overdoses, or allergic reactions. All of these post hoc theories seem less likely than a reaction to problem with the air quality, given that the workers were found inside and near a confined space. And even if Sica might have speculated about any such other possible explanations, he still could reasonably have anticipated an air quality issue as well. POINT II ANY CHANGE TO THE STATUTORY REQUIREMENTS FOR ACCIDENTAL DISABILITY RETIREMENT BENEFITS SHOULD BE MADE BY THE LEGISLATURE Sica additionally urges the Court to adopt a rule requiring the Comptroller to grant accidental disability retirement benefits whenever exigent circumstances make it reasonable for an emergency responder to disregard risks, even if those risks are ordinary risks of the job. (See Pet’r Br. at 27-33.) Sica’s position is contrary to the language of RSSL § 363 and established precedent, which require that the ordinary risks of a job be considered when analyzing whether an incident is a qualifying accident. See, e.g., Matter of Menna v. New York City Employees’ Retirement System, 59 N.Y.2d 696 (1983); Matter of Valentin v. Board of 5 Trustees, 59 N.Y.2d 702 (1983); Matter of Schussler v. Codd, 59 N.Y.2d 698 (1983). Moreover, the Legislature has already provided an enhanced benefit for police and firefighters who are permanently disabled as a result of engaging in the myriad hazards of their jobs— performance of duty disability retirement benefits. It may certainly be argued that police and firefighters disabled as the result of the heroic performance of their duties should receive still greater benefits, equal to the benefits provided to those disabled as the result of unforeseeable accidents. But that determination is for the Legislature and not for the courts. POINT III THE HEART PRESUMPTION IS NOT AN INDEPENDENT GROUND TO SUPPORT THE MEMORANDUM AND JUDGMENT When Sica applied for accidental disability benefits in this case, he claimed the benefit of what is known as the “heart presumption” provided by RSSL § 363-a(l). And Sica now argues (Br. at 34-43) that this presumption provides an alternative ground for affirmance. He is mistaken. RSSL § 363-a(l) provides a rebuttable presumption that a firefighter’s heart disease was both incurred in the performance of duty 6 and was also the natural and proximate result of an “accident” within the meaning of RSSL § 363. See Uniformed Firefighters Assn. v. Beekman, 52 N.Y.2d 463, 472 (1981) (contrasting the dual nature of this presumption to that applicable to police and firefighters within the City of New York). When the presumption applies, the Retirement System bears the burden of coming forward with competent evidence to overcome it. See Matter of Walos v. Regan, 188 A.D.2d 822, 823 (3d Dep’t 1992) (finding presumption overcome on issue whether identified incident constituted a qualifying accident); Matter of Ashley v. DiNapoli, 97 A.D.3d 1057, 1057-58 (3d Dep’t 2012) (finding presumption overcome on issue whether identified incident was natural and proximate cause of applicant’s injuries). In Matter of Bitchachi v. Board of Trustees of New York Pension Fund, 20 N.Y.3d 268 (2012), this Court explained the nature of the analogous presumption created in favor of emergency responders who performed rescue, recovery or cleanup operations at specified locations, including the World Trade Center site. See Administrative Code of the City of NY § 13-252(1). For purposes of that presumption, the Court explained, the pension fund cannot deny accidental disability benefits by 7 relying solely on the absence of evidence tying the disability to a qualifying accident; rather, it must come forward with “competent” or “credible” evidence, which it described as “evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered.” Bitchaci, at 282-83 (quoting Matter of Meyer v. Board of Trustees ofN.Y. City Fire Dept., 90 N.Y. 2d 139, 147 (1997)). If the pension fund comes forward with such evidence, it overcomes the presumption. Id. That is precisely what happened here on the issue of whether the identified incident constituted a qualifying accident.2 The Retirement System overcame the presumption with credible evidence establishing 2 Because Sica’s accidental disability benefits application was denied on the ground that the September 2001 incident did not constitute a qualifying accident, the hearing officer and ultimately the Comptroller had no need to address any other issues that Sica’s application might have raised, such as whether Sica’s injuries were the natural and proximate result of that incident. Indeed, when Sica initially applied for accidental disability retirement benefits, he claimed that his cardiomyopathy was the result of four separate incidents, including the September 2001 incident at issue here. He subsequently conceded that the other three incidents were not “accidents” within the meaning of the RSSL (8), but they too involved chemical exposure, and one or more of them may have caused Sica’s injuries, as opposed to the incident at issue here. 8 that the identified incident was not a qualifying accident with evidence that the Comptroller ultimately found persuasive. As noted, the record contains both Sica’s own testimony and also a description of Sica’s job duties; together this evidence constituted credible evidence establishing that petitioner’s job required him to respond to emergency calls to assist injured persons and included an expectation that he work in hazardous environments, including those presenting a risk of exposure to toxic fumes; that he had received training in how to provide emergency medical care and to avoid exposure to toxic fumes; and that he regularly responded to medical emergencies, including those involving exposure to toxic fumes. The record thus contains credible evidence to rebut the heart presumption, and that evidence constituted substantial evidence to support the determination that the subject incident was not an accident. To the extent petitioner argues that Bitchachi changed the legal standard necessary to satisfy the burden of proof, he is mistaken. The Retirement System need not present “conclusive” evidence to overcome the presumption, as Sica suggests (Br. at 40-41), but rather “competent” or “credible” evidence on the point at issue. 42 N.Y.3d at 282. The evidence in the record satisfied that requirement. 9 CONCLUSION This Court should reverse the memorandum and judgment of the Appellate Division, Third Department. Dated: Albany, NY October 30, 2017 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General State of Neuÿfork Attorney fo/Appellanj/ By- BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General PETER H. SCHIFF Senior Counsel WILLIAM E. STORRS Assistant Solicitor General of Counsel ILLIAM E. STORRS Assistant Solicitor General The Capitol Albany, NY 12224 (518) 776-2037 10 AFFIRMATION OF COMPLIANCE Pursuant to the Rules of Practice of the New York Court of Appeals (22 N.Y.C.R.R.) § 500.13(c)(1), WILLIAM E. STORRS, an attorney in the Office of the Attorney General of the State of New York, hereby affirms thata££ording to the word,count feature of the word processing pndgram usedjÿr'prepare this brief, the brief contains 1,886 words, whifih complies whn the limitations stated in § 500.13(c)(1). / / / / WILLIAM E. STORRS