In the Matter of Pat Sica, Respondent,v.Thomas P. DiNapoli,, Appellant.

Brief

N.Y.January 2, 2018

To be Argued by: DONALD P. HENRY (Time Requested: 15 Minutes) APL-2017-00093 Albany County Clerk’s Index No. 3681/15 Appellate Division–Third Department No. 522020 Court of Appeals of the State of New York In the Matter of PAT SICA, Petitioner-Respondent, – against – THOMAS P. DINAPOLI, as State Comptroller, Respondent-Appellant. BRIEF FOR PETITIONER-RESPONDENT DONALD P. HENRY P.C. Attorney for Petitioner-Respondent 99 Church Street, 4th Floor New York, New York 10601 Tel.: (914) 946-7403 Fax: (914) 684-0401 Date Completed: September 18, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES in PRELIMINARY STATEMENT, 1 STATEMENT OF THE CASE. 4 A. FACTS 4 B. THE HEARING OFFICER’S DECISION 6 C. THE COMPTROLLER’S DECISION 9 D. THE THIRD DEPARTMENT MAJORITY DECISION... 11 E. THE THIRD DEPARTMENT DISSENT DECISION 12 ARGUMENT 13 POINT I IN THE CONTEXT OF THIS RECORD RESPONDENT’S INJURIES WERE NOT A FORESEEABLE RISK INHERENT IN THE DUTIES HE WAS PERFORMING. 13 POINT II THIS COURT SHOULD AFFIRM THE THIRD DEPARTMENT PRECEDENTS WHICH CONSIDER LIFE THREATENING CIRCUMSTANCES WHEN DETERMINING “UNEXPECTED” OR “ACCIDENTAL” EVENTS 27 TABLE OF CONTENTS CONTINUED POINT III THE LEGISLATURE INTENDED THAT A FIRE FIGHTER WITH A HEART IMPAIRMENT BE GRANTED A PRESUMPTION OF ACCIDENT UNLESS REBUTTED BY COMPETENT EVIDENCE 34 44CONCLUSION TABLE OF AUTHORITIES CASES PAGE Bitchatchi, Matter of v. Board of Trustees of the N.Y. City Police Department Pension Fund, 20 N.Y.3d 268, 982 N.E.2d 600, 958 N.Y.S2d 680, (2012) 37, 41, 43 Brown, Matter of v.Levitt, 58 A.D.2d 915, 397 N.Y.S.2d 171 (3d Dept 1977). .42 Bunnell v. New York State Policemen’s and Firemen’s Retirement System, 50 A.D.2d 244, 377 N.Y.S.2d 935 (3d Dept 1975). 36 Cantone, Matter of v. McCall 289 A.D.2d 863, 734 N.Y.S.2d 362(2001). 2, 29,30,31, Cohen, Matter of v. DiNapoli, 78 A.D.3d 1463 (3d Dept 2010), 17 Coon, Matter of v. N.Y.S. Comptroller, 30 A.D.3d 884 (3d Dept), Iv. Denied 7. N.Y.3d 717(2006) 17 DeLeon, Matter of v. Levitt, 65 A.D.2d 646, 409 N.Y.S.2d 456 (3d Dept 1978). 35 DiLaura, Matter of v. Regan, 189 A.D.2d 994, 592 N.Y.S.2d 514 (3d Dept 1993). 37 Echols, Matter of v. Regan, 161 A.D.2d 1024, 557 N.Y.S.2d 596, (1990). 15,22 Flynn, Matter of v. Regan, 178 A.D.2d 887, 889, 577 N.Y.S.2d 739, 741 (3d Dept 1991). 37 Goldman, Matter of v. McGuire, 64N.Y.2d.2d 1041 (1985) 39 TABLE OF AUTHORITIES CONTINUED Huether, Matter of v. Regan, 155 A.D.2d 860 (3d Dept. 1989). 33 Johnson Corp., v. Indemnity Ins. Co. of North America, 6 A.D.2d 97, aff’d 7 N.Y.2d 22 (1959) 14 Keller, Matter of v. Regan, 212 A.D.2d 856 (3d Dep’t 1995). 17 Kelly, Matter of v. DiNapoli, (APL-2016-00083) 1,30,31,32 Kenny, Matter of v. DiNapoli, 11 N.Y.3d 874, 874 N.Y.S.2d 399 3d Dept 2008). 19 Knight, Matter of v. McGuire, 62 N.Y.2d 563(1984) 2, 9, 11, 13,20, 22,33 Kowal, Matter of v. DiNapoli, (APL-2017-00136) 1 Lassen, Matter of v. Hevesi, 9 A.D.3d 780, (3d Dep’t 2004. 18 Leuenberger, Matter of v. McCall 235 A.D.2d 906, 652 N.Y.S.2d 671 (1997). 2,28,31 Lichtenstein, Matter of v. Board of Trustees 57 N.Y.2d 1010(1982) 14, 34 McCambridge, Matter of v. McGuire 62N.Y.2d 563 (1984) 2, 4, 9, 11, 13, 18, 20, 22, 33 Melendez, Matter of v. N.Y.S. Comptroller, 54 A.D.3d 1128 (3d Dep’t 2008) 17 TABLE OF AUTHORITIES CONTINUED Menna, Matter of v. New York City Employees Retirement System, 59 N.Y.2d 696(1983) 17 Rakowski, Matter of v. N.Y. State & Local Ret. Sys., 215 A.D.2d 802 (3d Dep 7 1995) 17 Schussler, Matter of v. Codd, 59 N.Y.2d 698(1983) 17 Skae, Matter of v. Regan, 208 A.D.2d 994, 617 N.Y.S.2d 237 (3d Dept 1994). 37 Uniformed Fire Fighter Association v. Beekman, 52 N.Y.2d 463(1981) 36 Valentin, Matter of v. Board of Trustees, 59 N.y.2d 702(1983) 17 Vladick, Matter of v. McCall, 252 A.D.2d 729, (3d Dept 1998). 33 41Warshawsky v. DiNapoli, 73 A.D.3d 1357 (3d Dept 2010). Witts, Matter of v. DeNapoli, 137 A.,D.3 1456, (3d Dep’t 2016) 21 STATE STATUTES General Municipal Law § 208(f). 38 Retirement & Social Security Law § 363-a 39 PRELIMINARY STATEMENT The Comptroller appeals to this Court after two judicial forums have found “accident” in favor of Firefighter Sica and against the Comptroller. At bar the Comptroller attempts to distract from the particular facts of this case and bolster his arguments by lumping this case in with two others and alleging that all three cases represent a disturbing departure from established precedent. See, Matter of Kelly v. DiNapoli (APL-2016-00083) and Matter of Kowal v. DiNapoli, (APL-2017-00136). Nothing is further from the truth. The facts of this case fall squarely within established precedents of this Court and the Third Department. The majority decision at bar disturbs nothing. The tension between the majority and dissent positions in this case is precisely the tension confronted by this Court in McCambridge v. McGuire, 62 N.Y.2d 563, 479 N.Y.S.2d 171 (1984) decades ago. Namely, how to be fair to first responders who we put in harm’s way, in a world of increasingly greater and more complex hazards given the legislature clearly intended them to be eligible for accidental disability retirement. The tension between the majority and dissent, between an “unexpected event” unrelated to ordinary risks (“accident”) and an “incident in the l performance of duty” was resolved by this Court in favor of a case by case analysis of the facts. See, McCambridge v. McGuire, 62 N.Y.2d 563 (1984) and Knight v. McGuire. 62 N.Y.2d 563 (1984). Consistent with these precedents the majority decision grants deference to the careful analysis of the facts by the hearing officer. By contrast, the dissenters willingness to acquiesce in the Comptroller’s reliance on the generalized job description to contradict the hearing officer’s thoughtful analysis combined with the dissenter’s second-guessing of the facts on the ground ( performed under life threatening circumstances) would effectively override the case by case analysis required by this Court, and the intent of the legislature that first responders be entitled to accidental disabilities. Two other issues raised on this appeal are the Third Department precedents which have granted “accident status” and found an “unexpected events” in situations where circumstances made it reasonable for an applicant to act in disregard of potential risks ( see Point II, infra) and the applicability of the statutory command that a firefighter with a heart impairment be granted a presumption of accident (see Point III, infra). See, RSSL § 363-a. See also, Leuenberger v. McCall. 235 A.D.2d. 906, 652 N.Y.S.2d.671 (1997) and . Cantone v. McCall. 289 A.D.2d. 863, 734 N.Y.S.2d. 362, (2001). These Third 2 Department precedents have remained undisturbed for almost twenty years. Firefighter Sica received a disabling heart injury from a military grade poison and off the charts carbon monoxide exposure, while performing EMS duties selflessly on two unconscious victims in danger of dying. The disabling exposure occurring in a supermarket full of employees, the public, and numerous other first responders none of whom exhibited any symptoms suggesting contaminated air and where no cleaning chemicals or power equipment was visible to first responders. Under such circumstances the source of his injury was external, unusual, wholly unexpected and outside the scope of ordinary risks associated with performing EMS Duties on an unconscious victim. He asks this Court to follow precedent and draw the fine line in his favor by again rejecting the Comptroller’s over reliance on the generalized hazardous nature of the broadly written firefighter’s job description to rebut the otherwise uncontested facts on the ground. For the reasons set forth herein and in Petitioner’s Brief below, this Court should affirm the majority opinion upholding a case by case factual analysis of the circumstances of a first responder’s injury, which takes into consideration extraordinary circumstances and extraordinary risks outside the scope of normal risks that could be reasonably anticipated under the circumstances, as it looks 3 beyond the generalized hazardous nature of the job description and focuses on whether the particular precipitating cause of the injury was a foreseeable risk of the activity being performed. McCambridge v. McGuire,62 N.Y.2d 563 (1984). STATEMENT OF THE CASE A. FACTS At the administrative hearing the following testimony was uncontroverted: On September 2, 2001, two maintenance workers at the Fine Fare Supermarket in downtown Yonkers were assigned to clean a walk-in-freezer. ( R 111, 1071). The workers mixed powerful cleaning chemicals together and applied them within the confined space of the walk-in-freezer. ( R 111). In addition, the investigation revealed that although not physically present in the area around the walk-in-freezer when first responders arrived, the workers had used a gasoline driven power washer which exhausted out carbon monoxide into and around the freezer. ( R 78-79, 111, 107- 110). Both workers were rendered unconscious by their activities, which resulted in a 91 1 call to the City of Yonkers. ( R 106). The 911 call was transmitted to Engine Company 303 as a 10-45, Medical lumbers in parenthesis preceded by “R”, refer to the pages of the Record on Appeal. 4 Emergency only call. It referenced a person with difficulty breathing, without any mention of a potential chemical exposure. ( R 71-72). Initially, Engine 303 as the closest company to the EMS incident was the only company assigned to the call. ( R 85-86). Upon arrival at the scene Lt. Spaun advised firefighters Sica and Coogan to prepare for an EMS emergency by ordering them to leave their firefighting equipment on the truck and bring in their medical equipment. ( R 72). Immediately upon entering the market Eng 303 crew was confronted by market employees who directed them to the rear of the store, without providing any explanation as to the source of the emergency. ( R 72). At the rear of the store Eng 303 crew encountered two unconscious males. One victim was lying inside the walk in freezer and the other was lying just outside the walk in freezer. ( R 72). Thinking that a stabbing had occurred, Lt. Spaun attempted to find out what had happened while firefighters Sica and Coogan began to assist the two victims. ( R 79). Firefighter Sica entered the walk-in-freezer and got down on his hands and knees in order to medically evaluate the victim. ( R 74-75). He determined that the victim was unconscious, not breathing, and did not have a pulse. ( R 73-74). He immediately began one person CPR. ( R 74). Firefighter Sica was alone in the freezer exhaustively doing one person CPR for a full 10 minutes before any additional firefighters arrived in the walk-in freezer. ( R 74). Moreover, it would be a full 25 to 5 30 minutes before Sica and the victim were removed from the freezer to the area just outside the freezer. ( R 76). Then an unknown amount of additional time was spent stabilizing the victim with Sica’s assistance before the victim was transported outside the store. ( R 76-77). Petitioner’s uncontradicted testimony was that at no time during the 30 minutes he was inside the market assisting the victim did he receive any notification or indication that chemicals were involved or that he was at risk of chemical exposure. ( R 78-79). He testified that other additional firefighters and ambulance personnel continued to enter the area without any indication that the area was contaminated by toxic chemicals. ( R 73-74, 76-77). He testified that it was not until he was on his way to the hospital that the Department began to discover that it had a serious chemical exposure incident on it hands. ( R 80). Most importantly, Sica testified that he and his crew understood this call to be a 10-45, EMS only call, which have procedures and equipment that are distinct from fire related or other emergency calls. He testified that like ambulance workers, while operating at an EMS call firefighters only wear their station uniforms. They do not wear their firefighter protective gear or their self contained breathing apparatus. ( R 78, 83). B. THE HEARING OFFICER’S DECISION A hearing was held before Mark Fitzmaurice, Esq. The sole issue at the hearing 6 was whether the incident of September 2, 2001 qualified as an accident as defined by the Retirement and Social Security Law. ( R 22-23). Firefighter Sica was the only witness to testify. ( R 51) The Comptroller presented no witnesses to contradict any aspect of the factual testimony of Respondent. The essence of Sica’s testimony was that he and his crew were dispatched to an emergency medical services call involving “person” with difficulty breathing. ( R 71 ). That call designated by his Department as a “10-45 - Medical Emergency” set in motion a mind set, and series of prescribed procedures that made Sica unknowingly vulnerable to chemical exposure from carbon monoxide and exposure to a military grade poison,(Cyanogen Chloride). ( R 107, 109, 110, 178 at f 17). The protocols of the “10-45- Medical Emergency” run required him to leave his firefighting protective gear behind and for him to get up close and personal with the victim in order to medically evaluate him and save his life by performing one man CPR. ( R 74-76).2 As herein, when getting up close to a victim on an EMS run, Firefighter Sica was trained to wear gloves and a surgical mask in order to avoid the foreseeable risks of exposure to body fluids and blood borne pathogens. ( R 87 ). 2Contrary to Appellant's assertion that Sica was performing firefighting duties the separate and distinct nature of EMS duties as distinguished from fire suppression and firefighting duties is corroborated by the “Firefighter” Civil Service Job description which describes three separate “Essential Functions” performed by firefighters. 1) Responds to fires. 2) Responds to other emergencies. 3) Responds to medical emergency calls with fire company. ( R 103 at paragraph 2). 7 The hearing officer found that the facts on the ground presented a narrow question regarding foreseeability in exigent circumstances: As stated by the hearing officer: However, the main hearing issue was the foreseeability of the events which arose during the performance of the applicant’s duties as a firefighter. Based on System’s Exhibit 4, Firefighter Job Description, ( R 103), it is a given that the applicant’s duties were hazardous. Applying the Court of Appeals rationale in Matter of Carpenter v, DiNapoli. the incident qualified as an accident since the injury resulted from an unexpected and unforeseeable event, which arose during the performance of the applicant’s routine employment duties. ( R 26). In making his decision on foreseeability the hearing officer credited Respondent’s uncontested testimony that the injury occurred in a context where he was performing separate and distinct emergency medical services duties, during a rescue, under life threatening circumstances. In that context, where firefighters arrive to a medical aid call before ambulance personnel and are required by the exigent circumstances to take control as emergency medical services providers, the specific mechanism of injury was not a risk of the work performed. As stated by the hearing officer: Despite the applicant’s testimony describing his training and prior experience with hazardous chemicals and materials including discussions about chemical exposure, there was no testimony presented which would 8 allow the conclusion that applicant should have been aware of the invisible carbon monoxide gas.3 The only testimony in evidence described the carbon monoxide gas as invisible and odorless. There was no testimony about how the applicant’s training and experience in dealing with chemical spills and toxic substances could have prepared him to recognize the invisible and odorless gas in the relatively short amount of time he was in the supermarket. (Emphasis added). ( R 27). In granting Firefighter Sica accident status based on a combination of unforeseeable and exigent circumstances, ( R 27), the hearing officer was following the command of this Court, carefully assessing the facts on the ground and focusing on the "precipitating cause of injury," rather than on the "job assignment." McCambridge v. McGuire, 62 N.Y.2d 563 (1984); Knight v. McGuire, 62 N.Y.2d 563 (1984). C. THE COMPTROLLER’S DECISION Although the Hearing Officer found Sica’s injuries to be the result of an accident based on a rare combination of unforeseeable and exigent circumstances ( R 27), the Comptroller superceded that decision and denied the application ( R 29-33). The Comptroller’s determination was based on the broadly worded civil service job description (R103). Using the civil service job description the Comptroller reasoned 3Sica,s uncontested testimony was that his hazardous materials training was very basic and limited. It involved obtaining an entry level understanding of protective suits and detection equipment. It did not involve any training regarding encountering chemicals while performing the separate function of EMS duties. ( R 86-87). 9 that EMS duties were part of a Yonkers firefighter’s job and a firefighter’s job involves working in hazardous environments. ( R 30-31 at Tflf 9-12). Thus, the Comptroller determined that Sica was merely doing his job and was injured by an activity undertaken in the performance of ordinary employment. ( R 31- 33 at 5 -15). In making his determination the Comptroller invoked an oversimplified concept of “job duties” without taking note of the separate types of job duties detailed in footnote 2. Notably, the Comptroller’s superceding determination did not address the impact of exigent circumstances on “foreseeability” and “unexpected event’’that were relied on by the hearing officer. ( R 27). As will be discussed below, critical to the out come of this matter is the fact that there is no Finding of Fact or Conclusion of Law established by the Comptroller which discusses the exigent circumstances relied on by the hearing officer. ( R 27). Nor is there any Finding of Fact or Conclusion of Law issued by the Comptroller which demonstrates how Firefighter Sica’s training or experience could have prepared him to foresee the toxic hazard which injured him. ( R 26-27), ( R 29-33). In light of these critical omissions this Court must reject the factual argument now advanced by Appellant and the dissent below that Sica’s injury was foreseeable because he should have suspected an air quality problem when he found two unconscious persons in close proximity to one another, exhibiting no signs of external 10 problems. ( R 204). As will be discussed below, not only is this argument factually incorrect, ( in fact a stabbing was suspected) it cannot support a finding of substantial evidence because it was not discussed or relied on by the Comptroller in his determination. ( R 79). D. THE THIRD DEPARTMENT MAJORITY DECISION Consistent with precedents of this Court the majority decision supports a case by case analysis of the facts on the ground. See, McCambridge v. McGuire,62 N.Y.2d 563 (1984) and Knight v. McGuire, 62 N.Y.2d 563 (1984). The majority holding that: if a broadly written job description that requires the rescue of individuals in hazardous situations is allowed to replace a factual analysis of the particular circumstances of each incident, those who put themselves in harm’s way may be left without recourse. Whether an incident is so “sudden, fortuitous..., unexpected [and] out of the ordinary’’... that it qualifies as an accident ...remain, a factual issue that should not be determined merely by reference to job descriptions. Otherwise emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of the injury may be. This cannot have been the Legislature’s intent in establishing the accidental disability retirement program for rescue workers. ( R 201, emphasis added). Thus, in reviewing what it described as the careful analysis and express findings of the hearing officer the majority properly distinguished EMS rescue calls, such as a life threatening “difficulty breathing” call at a supermarket where the victim is found li unconscious and in danger of dying, from other calls involving responding to fires where a firefighter is trained to recognize the hazard of toxic gases produced by fire. (R 199, 200). In reviewing the entire record and not merely the job description, the majority saw no evidence sufficient to disturb the hearing officer’s careful determination. The majority held that: there was no record evidence to support a conclusion that Petitioner should have been aware of the odorless and invisible gas, nor that his training and experience related to chemical exposure should have prepared him to recognize its presence especially as no evidence suggested that others within the supermarket exhibited symptoms of such exposure. ( R 200), (Emphasis added). E. THE THIRD DEPARTMENT DISSENT The dissent argued that the broad job description provided substantial evidence to support the determination that exposure to toxic fumes was a risk inherent in Sica’s regular firefighter duties. ( R 202). In addition, the dissent disputed the hearing officer’s determination that the mechanism of injury was not foreseeable making a factual argument, (not relied on by the Comptroller) that Sica had the training and experience to suspect an air quality problem when he found two unconscious persons in close proximity to one another, exhibiting no signs of external problems. ( R at 204). 12 The dissent faulted the majority’s acceptance of the hearing officer’s finding that Sica’s training and experience were ineffective to protect him from the undetectable hazard. The dissent alleged that the majority opinion constituted a departure from long-standing precedent recognizing that emergency response personnel often have inherent professional duties to confront or expose themselves to dangerous conditions. ( R at 205). Notably, like the Comptroller the dissent did not address the majority’s reliance on exigent circumstances in finding “accident” and “unexpected” event. ARGUMENT POINT I IN THE CONTEXT OF THIS RECORD RESPONDENT’S INJURIES WERE NOT A FORESEEABLE RISK INHERENT IN THE DUTIES HE WAS PERFORMING. In granting accident status based on a combination of unforeseeable and exigent circumstances, ( R 200 -201), the majority is supported by case law. The focus for determining whether or not an accident occurred within the meaning of § 363 must be upon the "precipitating cause of injury," rather than on the "job assignment." McCambridge v. McGuire, 62 N.Y.2d 563 (1984); Knight v. McGuire, 62 N.Y.2d 563 (1984). 13 It is not disputed that Sica’s “job assignment” is “firefighter”. ( R 82). It is not disputed that he arrived on the scene that day in a fire truck. ( R 83). However, the hearing officer’s careful assessment was that on September 2, 2001 Sica was performing a separate essential function, a life saving rescue as an EMS provider and the “precipitating cause of his injury", (chemical exposure) was unexpected and not foreseeable in the context of the EMS duties and emergency circumstances he was performing under at that time. In Lichtenstein v. Board of Trustees,57 N.Y.2d 1010(1982), this Court indicated that only a common sense definition of accident can be applied in deciding accidental disability cases. The definition endorsed by this Court is a "sudden, fortuitous chance, unexpected, out of the ordinary and injurious in impact." Johnson Corp. v. Indemnity Ins. Co. of North America, 6 A.D.2d 97, affd, 7 N.Y.2d 22 (1959). Consistent with this Court’s command to apply common sense to the definition of accident, the hearing officer and majority applied common sense to the particular facts of Sica’s injury. Understanding that although Sica may have had training that would have protected him from airborne hazards as a firefighter at other types of incidents, in that supermarket, on that day, he had no time, or reason to suspect toxic air as the supermarket was full of people and other first responders showing no symptoms of chemical exposure. Moreover, the hearing officer and majority 14 recognized that the supervising lieutenant (responding to the separate protocol for EMS runs) permitted his entire company to leave their protective gear behind in the rig ( R 72 ). The hearing officer and the Third Department majority both ruled that Sica could not be held accountable for not anticipating the air borne danger, because under the exigent circumstances the mechanism of injury was unusual and unexpected, therefore constituting an out of the ordinary event which was not an identifiable risk of the work being performed under the circumstances. In this connection, the Third Department has routinely granted accident status to first responders performing typical job duties where, as here, their injuries were caused by extraordinary or unexpected events. In Echols v. Regan, 161 A.D.2d 1024, 557 N.Y.S.2d 596 (1990), the Third Department granted accident status to a state dentist who sustained injury while performing his ordinary duty of extracting a tooth because through no fault of the dentist the patient unexpectedly jerked and twisted his head. Id. The Court stated: the uncontroverted evidence clearly established the unusual and unexpected nature of the patient’s actions as the precipitating cause of the injury and the risk of such action was not an inherent risk in the ordinary performance of petitioner’s duties as a dentist. Id. 15 So too, Sica’s exposure to a military grade poison and toxic levels of carbon monoxide were not expected risks inherent in a medical run to a supermarket full of employees and people with only two affected victims. ( R 107, 184-193). In Echols, the Third Department went on to distinguish cases like Firefighter Sica’s where unexpected events happen during the ordinary course of duty from cases where injury results from the ordinary performance of duty without an unexpected event. As explained by the Court: Petitioner’s situation is not dissimilar to that of a police officer, who slipped on wet pavement as he was about to enter his patrol car (see, Matter of McCambridge v. McGuire, supra), or to a detective , who while getting up from a desk and steadying himself on another officer’s shoulder fell and was injured when that officer moved away (see, id), or to a fireman, who sustained injury when his right heel caught on the running board while exiting a jiretruck, lost his balance and came down hard on his left leg in a pothole (see, Matter of Prat v. Regan, 68 N.Y.2d. 647, 505 N.Y.S.2d. 74, 496 N.E.2d. 233). The injury in this case is to be distinguished from injuries resulting from the ordinary performance of routine job duties which are not the result of unexpected events. (See Matter of McCambridge v. McGuire, supra, 62 N.Y.2d. at 568, 479 N.Y.S.2d. 171, 468 N.E.2d. 9), such as injuring a back while pushing a desk (see Matter of Caramante v. Regan, supra,) sustaining a back injury in a formally sponsored team tug-of-war contest, where the time spent on the special assignment for practice was on regular pay, (see Matter ofBeachy v. Regan, 119 A.D.2d.967, 501 N.Y.S.2d. 494, Iv denied, 68 N.Y.2d. 604, 506 N.Y.S.2d 1027, 497 N.E.2d. 707), or a back injury while placing a parking ticket on a car (see, Matter of Lichtenstein v. Board of Trustees of Police Pension Fund of Police Dept. Of City ofN.Y., Supra ). See, Echols v. Regan, 161 A.D.2d 1024, 1025, 557 N.Y.S.2d 596, 598 (1990). 16 Many of the cases cited by Appellant in opposition to the majority opinion are of the type distinguished by the Court in Echols. These are cases without exigent circumstances, where injury results from the ordinary performance of duty without a precipitating unexpected event. Cases where the mechanism of injury is indisputably an ordinary risk of the work performed. See, Matter of Coon v. N.Y.S. Comptroller, 30 A.D.3d 884 (3d Dept), Iv. Denied 7. N.Y.3d 717 (2006), (Police officer injured while directing traffic when he stepped backward into pothole and fell)', Matter of Melendez v. N.Y.S. Comptroller, 54 A.D.3d 1128 (3d Dep’t 2008), (Police officer injured on two occasions while tripping over snow bank and later scaling fence); Matter of Keller v. Regan, 212 A.D.2d 856 (3d Dep Y 1995), Petitioner fell on slick garage floor resulting from rainstorm, where her duties required her to regularly walk through garage and where she was warned of the slick floor and where maintenance worker accompanied her and held her arm as she traversed); Matter of Scliussler v. Codd, 59 N.Y.2d 698 (1983), (accidental disability denied because hearing loss was not attributable to a specific incident); Matter ofRakowski v. N.Y. State & Local Ret. Sys., 215 A.D.2d 802 (3d Dep Y 1995), (exposure to mold and cleaning solutions over an extended period of time did not constitute sudden, fortuitous mischance), Matter of Valentin v. Board of Trustees, 59 N.y.2d 702 (1983), (sanitation workers injured while lifting trash cans), Matter of Menna v. New York City Employees Retirement System, 59 N.Y.2d 696 17 (1983), (back strain sustained while lifting a tire into City vehicle); See, Matter Cohen v. DiNapoli, 78 A.D.3d 1463 (3d Dept 2010). In Echols the Third Department was following the instructions of this Court in McCambridge v. McGuire,62N.Y.2d 563,479N.Y.S.2d 171 (1984), where the Court, in resolving multiple accident cases, held that the focus of the analysis must be on the particular activity being performed at the time of the injury, not on the generalized job assignment of a police officer or firefighter. Under the Court’s analysis, the “accident” question is limited to whether the precipitating cause of the injury was a foreseeable risk inherent in the particular activity being performed at the time of injury, without resort to generalized job assignments. With foreseeability going to that prong of the Court’s common sense definition of an accident which requires an “out of the ordinary” or “ unexpected event”. Thus, in McCambridge. this Court granted accident status to a police detective because of the unusual manner in which he sustained injury, (steadying himself on shoulder of another detective while getting up from precinct office desk chair, when other detective unexpectedly moves away). Id. This is so, even though the lower Courts and the System rejected the detective’s injury as an injury sustained in the normal course of duty resulting from a risk, (investigative office work) inherent in his job as a police detective. Id. 18 As stated by this Court in McCambridge critical to the determination in each of the present cases that there was a precipitating accidental event- in one case loss of balance and fall to floor, in the other a slip on the wet payment and fall which was not a risk of the work performed, as in Matter of Covel v. New York State Employees Retirement System, 84 AD2d. 902, mot for Iv to appeal den 55 NY2d 606. In an explanation that could be applied with equal force to the Comptroller’s argument herein, this Court stated: The error made by the Appellate Division and dissent is in focusing on the petitioner’s job assignment, not on the precipitating cause of the injury. Id at 567. In McCambridge this Court was signaling that the proper analysis of “accident” is to look at the particular circumstances of the injury and apply an ordinary definition of accident involving an unexpected event, where an unexpected event cannot result from an event that is a reasonably foreseeable risk of the activity undertaken. Id. ( See, Matter of Kenny v. DiNapoli, 1 1 N.Y.3d 873, 874 N.Y.S.2d 399 (3rd 2008), in which the Court upheld denial of accident benefits to a petitioner who slipped on wet ramp while exiting restaurant, where petitioner knew before he left the restaurant that the ramp was wet. Thus, the precipitating hazard could not be considered an unexpected event). 19 At bar Appellant and dissent mischaracterize the majority’s holding in this case asserting that it represents a disturbing departure from prior precedent. Their two principal complaints are as follows: (1) the majority’s opinion departs from this Court’s long-standing recognition that emergency response personnel often have inherent professional duties to confront or expose themselves to dangerous conditions and/or people. (Citation omitted). Matter of Sica v. DiNapoli. 141 A.D.3d 799 at 804, (3d Dept 2016). the majority decision creates disparate results based upon whether a firefighter inhales toxic gases while fighting a fire , in which case there is no accident, or whether a firefighter inhales toxic gases while providing emergency medical assistance to people overcome by such gases, in which case there is an accident, (Citations omitted). Matter of Sica v. DiNapoli. 141 A.D.3d 799 at 805, (3d Dept 2016). (2) It is respectfully submitted that the dissent’s argument suggesting that first responders should be denied accidental disabilities based on their inherent duty to expose themselves to dangerous conditions is substantially the same position rejected by this Court decades ago in McCambridge. See. McCambridge v. McGuire. 62 N.Y.2d 563, 479 N.Y.S.2d 171 (1984). As with the Comptroller’s over reliance on the generalized civil service job description discussed in McCambridge. both positions improperly rely on the generalized hazardous nature of the job to deny accidental status without regard to the particular activity being performed at the time of injury. See. McCambridge v. McGuire. 20 62N.Y.2d563,479N.Y.S.2d 171 (1984). Their position would also have the practical effect that fire fighters would be denied accidental benefits in a whole range of accidents, merely on the grounds that some other fire fighter in some other situation might have encountered a similar hazard. Furthermore, nothing in this Court’s decision in McCambridge and the Third Department’s decision in Echols alters a first responder’s inherent professional responsibility to expose him or herself to dangerous conditions in protection of the public. Courts have acknowledged this obligation and have routinely denied first responders accidental disability where the injury results from the ordinary risks inherent in the worked being perfonned. See, Matter of Lassen v. Hevesi, 9 A.D.3d 780, (3d Dep’t 2004, (Firefighter injured while backing out of a burning building and tripping over a lawnmower on the front porch; Matter of Witts v. DeNapoli, 137 A.,D.3 1456, (3d Dep’t 2016), (Firefighter injured while descending attic stairs in heavy smoke and tripping on unseen object). All the McCambridge and Echols precedents stand for is the recognition that unexpected events happen while first responders are bravely performing their duties. In light thereof, if the injurious event is of the type that routinely arises or can be reasonably expected to arise in the performance of that duty, then it is not deemed an accident; but if the injuries event is unexpected and outside the ambit of the ordinary risks of the task being performed, then the first responder cannot be accountable to 21 have foreseen it and it should be considered accidental in nature. Contrary to the assertions of appellant and the dissent the entire huge field of ordinary foreseeable risks which first responders must face as part of their professional responsibility remains undisturbed. The Sica decision being challenged on this appeal alters nothing. As previously stated the tension between the majority and dissent positions in this case is precisely the tension confronted by this Court in McCambridge v. McGuire. 62 N.Y.2d 563, 479 N.Y.S.2d 171 (1984) decades ago. The command of this Court in McCambridge is a case by case analysis where whether the injury occurred while performing fire suppression duties at a fire or performing EMS duties at a supermarket are in fact relevant factors in assessing the foreseeability of the mechanism of injury and the occurrence of an unexpected event. The cases cited by the dissent present no reason to disturb the decades old case by case factual analysis established by this Court. Each case cited by the dissent is easily distinguished as without an unexpected event under the analysis required in McCambridge v. McGuire. 62 N.Y.2d 563 (1984); Knight v. McGuire. 62 N.Y.2d 563 (1984) and is consistent with the Third Department’s distinguishing analysis in Echols v. Regan. 161 A.D.2d 1024, 557 N.Y.S.2d 596 (1990). Applying the McCambridge and Echols analysis to the facts at bar the hearing 22 officer and majority properly held that the focus of inquiry is not on Sica’s “firefighter” job description which generalizes that Sica was subject to responding to all types of emergencies, at other times, on other days. Rather, the focus of inquiry must be limited to the specific facts that lead to his injury on that particular day, in that particular market. Under that analysis it was clear that Firefighter Sica did not knowingly respond to a hazardous materials incident or a fire call where his training informed him that hazardous atmospheres were potentially present. The market was full of people and first responders with no one showing symptoms besides the two unconscious victims. Thus, using a common sense definition of accident, in light of the particular activity being performed (10-45, EMS call, one man CPR) where the victim was in danger of dying, the precipitating cause of the injury (military grade poison and extreme carbon monoxide exposure) was not a foreseeable risk. In this connection, both the Attorney General and the dissent ignore the essential facts that there were numerous other first responders who worked in the same environment as Firefighter Sica and no one suspected an air quality issue. ( R 199-200, 204). The uncontested record reveals the upon entering the market Sica and his crew were confronted by employees, who were not leaving the building and who were not exhibiting any symptoms of exposure or sickness. They merely directed the crew to the back of the store. ( R 72). Thereafter, the record is uncontested that numerous 23 other first responders worked in the same environment as Sica for an extended period of time without suspecting a contaminated atmosphere. ( R 73-74, 76-77 ). The greatest support for the majority position with regard to foreseeability comes from the activities of Sica’s lieutenant. Lieutenant Spaun was charged with supervising Sica throughout the incident in the supermarket. As a first line supervisor he is charged with the safety of the men under him. As a lieutenant he has significantly more training in hazardous conditions than Firefighter Sica. He was indisputably in the market and by Sica’s side for most, if not all, of the time. He saw the same conditions as did Sica and he did not suspect an air quality issue or toxic atmosphere. ( R 79). Notwithstanding that a trained supervisor and multiple other first responders did not suspect an air quality hazard in the market, the dissent second guesses the facts on the ground. The dissent argues that Firefighters Sica and Coogan and Lieutenant Spaun should have suspected an air quality problem when they found two unconscious persons in close proximity to one another, exhibiting no signs of external problems. ® 203-204). In footnote #3 of the decision, the dissent elaborates on its reasoning contending that finding two unconscious persons, ... removed any reasonable possibility that the etiology of the medical conditions could be an internal condition unique to one of the individuals such as a heart attack. ( R 204). It is respectfully submitted that the dissent’s reasoning is flawed and out of 24 touch with the modern reality faced by first responders in places such as Yonkers. In holding that the mechanism of injury was foreseeable because the facts on the grounded are susceptible to only one explanation, (air quality problem) the dissent ignores the uncontested explanation in the record and numerous other possible inner city explanations not involving air quality. In the record there is no rebuttal to Firefighter Sica’s testimony that he thought Lieutenant Spaun suspected a stabbing. ( R 79). More importantly, there were a myriad of other potential inner city causes for the bodies on the ground encountered by Sica and Lieutenant Spaun. For instance electrical shock is a common circumstance encountered by first responders which presents bodies exactly as those found by Spaun and Sica. The facts on the ground are consistent with electrical shock as the workers were cleaning, using water around a walk in freezer powered by high voltage electricity. Other possible inner city explanations included workers using drugs such as heroine or other toxic substances and either overdosing or having a bad reaction to a tainted supply. Additionally, the workers who were cleaning out a market walk in box could have eaten moldy or decaying food and had very bad allergic type reactions. Simply put the dissent is asking this Court to second guess the first responders on the ground and impose the one disqualifying explanation over many other possible 25 explanations. More importantly the dissent is asking this Court to impose an explanation at odds with the facts on the ground which indisputably demonstrate that no one in that market, not any employee and not numerous other first responders demonstrated any signs or symptoms consistent with an air quality problem. In order to buttress their argument that an air quality problem was foreseeable the Comptroller and the dissent exaggerate the extent of Sica’s hazardous materials training and experience. What the uncontested record actually reflects is that Sica had some basic introductory hazardous materials training involving the use of chemical protective suits at incidents designated by his Department as hazardous materials incidents. ( R 86 at 6-25 and R 87 at 1-5, R 84 at 2-6). In addition, Sica admitted to responding to a natural gas leak call in a building in the past. ( R 84 at 7-8). Notably unlike the odorless Cyanogen Chloride and carbon monoxide he faced in the supermarket that day, natural gas has a strong distinctive smell easily identified by first responders. Most importantly, Sica testified that his EMS training was medical in nature and did not involve any hazardous materials awareness training for EMS incidents. ( R 86 at 15-25 and R 87 at 2-5). He testified further that any hazardous materials training he received was separate from any EMS training and did not involve training in hazardous materials or atmospheres linked to performing EMS calls outside the fire ground. Id. 26 In summary, the substantial evidence of this record demonstrates that not only was Respondent’s limited training and experience insufficient to recognize the hazard which caused his injury, so too, the greater training and experience of his lieutenant and multiple other first responders was ineffective to the identify the air quality hazard. The great weight of the evidence supports the careful factual conclusion of the hearing officer and majority that the mechanism of injury was not foreseeable under the facts in this record. POINT II THIS COURT SHOULD AFFIRM THE THIRD DEPARTMENT PRECEDENTS WHICH CONSIDER LIFE THREATENING CIRCUMSTANCES WHEN DETERMINING “UNEXPECTED” OR “ACCIDENTAL” EVENTS. It is clear that the hearing officer and the majority granted accident status in part based on the exigent circumstances in the market that day. As reported by the local newspaper both workers were unconscious when firefighters arrived at the Fine Fare Supermarket 230 S. Broadway at 2:00 pm. One of the two workers had stopped breathing said Fire Chief Larry Smith. (Rill). The exigent circumstances were detailed by the hearing officer as follows: 27 In addition to the lack of foreseeability, the facts presented during the hearing revealed an emergency situation existed when the applicant arrived at the supermarket. The applicant testified that there were two apparently unconscious individuals lying inside and outside the walk-in-freezer. The individual inside of the walk-in-freezer had no vital signs. The applicant immediately began life saving measures by using strenuous chest compressions and the operation of a bag valve mask to assist the victim with breathing. The applicant’s vigorous efforts lasted for approximately twenty-five minutes before he exited the store. There was no testimony about any training that could have protected the applicant from the unexpected exposure to carbon monoxide especially under these exigent circumstances. ( R 49). In also granting accident status based on uncontested exigent circumstances the hearing officer and majority are consistent with Third Department precedent which has existed since 1997. Since then the Third Department has repeatedly granted “accident status” and found “unexpected events” to have occurred in situations where, as here, exigent circumstances made it reasonable for an applicant to act in disregard of potential risks. In Leuenbereerv. McCall. 235 A.D.2d. 906, 652 N.Y.S.2d.671 (1997), the Third Department granted “accident status” to a practical nurse who sustained a disabling back injury while performing the routine duty of loading a patient into a van. Id. The accident/injury occurred when, while loading the patient into the van, the nurse responded quickly to her supervisor’s cries for help, preventing him from being crushed by the van’s 200 pound rear door which came unhinged and started to fall. As stated by the Court: 28 We disagree with respondents determination denying accidental disability retirement benefits. Petitioner’s act of aiding her distressed supervisor in preventing the fall of the van’s heavy door was an accident in that it was a “ sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” (citations omitted). The uncontroverted evidence establishes that petitioner’s injury was unusual, unexpected, and not a risk inherent in the ordinary performance of petitioner’s regular duties. (See, Echols v. Regan. 161 A.D.2d 1024, 557N.Y.S.2d 596 (1990). Further we do not consider petitioner’s response to her supervisor’s call of alarm to amount to a calculated or voluntary action on her part which has been found in some circumstances not to constitute an accident. (Cf. Matter of Pugliese v. Regan. 161 A.D.2d. 1096, 557 N.Y.s.2d. 653. So too, in Cantone v. McCall. 289 A.D.2d. 863, 734 N.Y.S.2d. 362, (2001), the Third Department granted accident status to a water plant operator who was injured while hurriedly stepping over spools of wire to get to a stuck shut off valve, when trying to prevent a chlorine gas leak. The Third Department overruled the Retirement System which had made a determination that the water plant operator was performing his duties at the time, was aware that the spools of wire were there and elected to walk over them. Id. As stated by the Court in reversing the System: Implicit in respondent’s factual findings are the assumptions that petitioner could have stepped around the spools of wire to gain access under the stairwell and that he had time to pursue some course other than the one he pursued. There is however, no evidence in the record to support either assumption. Petitioner, the only witness who testified about the occurrence, testified that the only means of access was to go over the spools, and his testimony regarding the nature of the emergency created by the stuck valve demonstrated that time was of the essence. Respondent’s unwarranted and speculative attempt to second 29 guess the maimer in which petitioner responded to the emergency cannot, in these circumstances, be determinative of the issue of whether petitioner sustained an accident ... In these circumstances we agree with petitioner that his fall while attempting to step over the spools was the type of sudden, fortuitous event, unexpected, out of the ordinary and injurious in impact that constitute an accident, (citations omitted). As in the above cited cases the appellant and dissent are both speculating and second guessing the facts on the ground when asserting that Sica had time and should have anticipated the toxic atmosphere. Cantone v. McCall. 289 A.D.2d. 863, 734 N.Y.S.2d. 362, (2001). Under the precedents established in the Leuenberger and the Cantone cases the hearing officer and majority had every right to conclude that the life threatening circumstances encountered by Sica provided him and his supervisor with no time to assess his environment but required him to act immediately in disregard of any potential risk. As a result his exposure to the odorless and invisible chemicals, ( military grade poison (Cyanogen Chloride) and toxic levels of carbon monoxide) were not ordinary or foreseeable risks but constitute an “unexpected” event. The case of Kelly v, DiNapoli, 137 AD3d 1470, 1471-1472 (2016) , admittedly closer to the emergency facts at bar is not inconsistent with the analysis of the majority. A reading of the close Kelly decision, especially the dissent, reveals that the case 30 could have been decided in Officer Kelly’s favor under the existing precedents which have granted “accident status” and found “unexpected events” in situations where circumstances made it reasonable for an applicant to act in disregard of potential risks. See, Leuenberger v. McCall. 235 A.D.2d. 906, 652 N.Y.S.2d.671 (1997) and Cantone v. McCall. 289 A.D.2d. 863, 734 N.Y.S.2d. 362, (2001). The Leuenberger case was cited by the dissent in Kelly as a basis to grant accident status to Officer Kelly. See. Kelly v. DiNapoli, 137 AD3d 1470, 1472 (2016). Yet, notwithstanding the reliance below on the reasoning in Leuenberger. neither the dissent nor the Comptroller addressed the impact of extraordinary circumstances in their papers. The exigent circumstances component relied on below went wholly ignored. A reading of the majority in Kelly and the dissent at bar, along with the Comptroller’s papers below reveals an arbitrary reliance on the broadly worded job description. Appellant simply don’t believe that there should be an exigent circumstances exception which excuses foreseeability in extraordinary circumstances when time and training are ineffective to protect the applicant from the “unexpected event”. Thus, without the benefit of the extraordinary circumstances providing him with an “unexpected event”, Officer Kelly was held by the majority to have recognized the danger of collapse and falling debris before he acted. In so doing, according to the 31 majority, he made the brave, selfless, but voluntary choice to act in disregard of his personal safety thereby sustaining foreseeable and expected injury. Kelly v. DiNapoli. 137 AD3d 1470, 1471-1472 (2016). It is submitted that the Kelly case was wrongly decided because the majority refused to follow its own precedent regarding foreseeability in extraordinary circumstances. However, the issue that snagged Kelly and formed the basis of the majority decision in Kelly does not exist at bar. Where it is undisputed that Officer Kelly by his own admission recognized the hazard and acted voluntarily, (key components of foreseeability), it is equally indisputable that Sica’s hazard was completely undetected by him, his lieutenant and numerous other first responders in the market at that time. In finding against Kelly the Court was consistent with the standard rule regarding assumption of the risk defense: it requires knowing assumption of the risk. If the injured victim was ignorant of the risk there is no A/R defense. This critical distinction between knowing, voluntary and calculated action, and involuntary action, between an opportunity to protect oneself and being totally unaware removes all similarity between the Kelly case and Sica and makes the discussions in Kelly inapplicable to the matter at bar. Herein, the Comptroller’s superceding decision and the dissenting opinion justify denial with numerous citations to the generalized hazardous nature of the 32 “Firefighter” job description. ( R 40-41 at f 9,10,11,12), ( R 42 f 7), ( R 202-203). However, this is precisely the unfair circumstance this Court intended to avoid when it commanded that the focus for determining whether or not an accident occurred within the meaning of § 363 must be upon the "precipitating cause of injury," rather than on the "job assignment." McCambridee v. McGuire. 62 N.Y.2d 563 (1984); Knight v. McGuire. 62 N.Y.2d 563 (1984). Contrary to the cases cited by Appellant at bar and below Respondent was not responding to a fire scene where toxic fumes are always present, ( See, Matter of Huether (Hauser( v. Regan. 155 A.D.2d 860 (3d Dept. 1989). Respondent was also not responding to a gas leak or chemical spill which would have raised his defensive awareness, (See, Vladick v. McCall. 252 A.D.2d 729 (3d Dept 1998). Unlike Officer Kelly, Respondent never madea conscious, knowing decision to encounter this hazard, which was not a routine one for such EMS calls. This Court must move to clarify and protect our brave first responders or as stated by the majority emergency personnel will be rendered in eligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of the injury may be. This cannot have been the Legislature’s intent in establishing the accidental disability retirement program for rescue workers. ( R 201), (Emphasis added). 33 POINT III THE LEGISLATURE INTENDED THAT A FIRE FIGHTER WITH A HEART IMPAIRMENT BE GRANTED A PRESUMPTION OF ACCIDENT UNLESS REBUTTED BY COMPETENT EVIDENCE. In granting Firefighter Sica accident status for his September 2, 2001 injury both the hearing officer and the majority determined that Sica had met his burden of proof in establishing the qualifying elements of “accident” laid out by this Court. See, Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010 (1982). As a result neither the hearing officer nor majority relied on, or addressed, the impact of New York’s statutory “Heart Presumption” law, (RSSL § 363-a) on the determination of accident at bar. ( R 49, 201). That statute provides an alternative basis on which to affirm the Third Department’s decision. It is not disputed in this record that Firefighter Sica has met all of the criteria necessary to be eligible for the protection and benefits of the “Heart Presumption” law, (RSSL § 363-a). ( R 69, 1 12-128). He is currently the recipient of Performance of Duty disability retirement by virtue of a job incurred heart impairment, (dilated cardiomyopathy) caused by exposure to toxic chemicals. ( R 21, 49). As a fireman within the definition of the Heart Presumption law, (RSSL §363-a, subd. 3), Firefighter Sica is entitled to the dual presumptions found in subd. 1 of that 34 section, the second prong of which grants him accident status unless the “contrary be proved by competent evidence”. See, Matter of DeLeon v. Levitt, 65 A.D.2d 646, 409 N.Y.S.2d 456 (3d Dep’t 1978), (Thus Section 363-a creates a presumption that a heart attack or heart failure suffered by a fireman was service incurred and accidental). RSSL §363-a (Firemen and policemen; certain disabilities) effective September 1, 2002 provides as follows: 1. Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a fireman shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence. (Emphasis added). 2. Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a policeman, presently employed, and who shall have sustained such disability while so employed, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence 3. As used in this section, the term “fireman” and “policeman” means any member who is performing police or fire service as the phrase police or fire service is defined in paragraphs a, b, c, d, g and h of subdivision eleven of section three hundred two of this article, and who prior to entry into service as a fireman or policeman, successfully passed a physical examination which failed to disclose evidence of any disease or other impairment of the heart. 35 In Uniformed Fire Fighters Association, Local 94 v. Beekman, 52 N.Y.2d 463, at 472, fn.2, 438 N.Y.S.2d 746, at 750, this Court discussed the purpose and legislative history of the heart presumption as follows: As originally enacted, section 363-1 provided that a heart condition suffered by a policeman or fireman was presumed “to be the natural and proximate result of an accident” (L.1969, ch.1103). In 1973 the statute was amended to provide that the presumption extends to both service connection and accidental cause (L.1973, ch.1046, sect. 30). In 1974 it was again amended to provide that the dual presumption only applies to firemen. Policemen now only have a presumption that the condition was job related (L.1974, ch.967, sect. 1). Therefore, it is clear that the Legislature intended to extend to firefighters a dual presumption, that is, that their heart related disabilitiesare service connected and the result of an accident. The operation and effect of this presumption, as with any other in New York, “is to place the burden upon the adversary to come forward with evidence to rebut the presumption; that is, to negative the existence of the presumed effect.” In most cases presumptions can be overcome only with the production of “substantial evidence to the contrary.” Bunnell v. New York State Policemen’s and Firemen’s Retirement System, 50 A.D.2d 244, 377 N.Y.S.2d 935 (3d Dept 1975). Indeed, the Appellate Division, Third Department has required the System to demonstrate that it has “convincingly rebutted” the statutory presumption with “competent evidence to the 36 contrary”in order to prevail in these cases. Flynn v. Regan. 178 A.D.2d 887, 889, 577 N.Y.S.2d 739, 741 (3d Dept. 1991). The courts will annul determinations denying disability benefits where the record does not reveal sufficiently convincing competent evidence to rebut the statutory presumptions. See, e.g. Skae v. Regan. 208 A.D.2d 1028, 617 N.Y.S.2d 237 (3rd Dep’t., 1994); Pi Laura v. Regan.189 A.D.2d 994, 592 N.Y.S.2d 514 (3rd Dep’t., 1993). The operative effect of disability presumption laws was recently discussed by this Court in in Matter of Bitchatchi v. Board of Trustees of the N.Y. City Police Department Pension Fund. 20 N.Y.3d 268, 982 N.E.2d. 600, 958 N.Y.S.2d 680 (2012). Matter of Bitchatchi involved the interpretation of the presumption in favor of accidental causation contained in the World Trade Center disability law. The operative language of the World Trade Center presumption and the Heart presumption, at issue here, is virtually identical. Thus, the Court’s analysis of the operation of the World Trade Center statutory presumption is instructive. In Matter of Bitchatchi. the Court reviewed three accidental disability appeals brought by police officers who responded to the World Trade Center site immediately after the attack on September 11, 2014. Each of the police officers subsequently contracted cancer allegedly from exposure to the toxic chemicals at the site. Id at 275, 277-278. 37 Before analyzing the effect of the presumption the Court outlined why accidental disability retirement (“ADR”) benefits are so important to first responder victims and also what the legal position of an applicant is without the benefit of the presumption: ADR benefits are more generous - a tax-free pension of three quarters of the officer’ salary - but eligibility requires an additional showing that the officer’s disability is the natural and proximate result of an accidental received in.... city service, (Administrative Code of City of NY § 13-252). Id at 276. A claimant filing for ADR benefits ordinarily has the burden of proving causation in an administrative proceeding. But as part of the legislature response to the World Trade Center tragedy, a new statute was enacted creating a presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup work operations at specific locations, including the World Trade Center and Fresh Kills Landfill... The Court then sets forth the operative language of the WTC presumption which is identical to that of the Heart presumption at issue herein:. WTC PRESUMPTION - Administrative Code of City of NY § 13-244; General Municipal Law § 208-f. provides as follows: Notwithstanding any provision of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition of impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law , it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member’s own willful negligence, 38 unless the contrary be proved by competent evidence. Administrative Code of City of NY § 13-252.1[1}{a} (Emphasis added). HEART PRESUMPTION - RSSL §363-a (Firemen and policemen; certain disabilities) effective September 1, 2002 provides as follows: 1. Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a fireman shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence. (Emphasis added). In fact, so clear is the analogy between the two statutes that, in interpreting the new WTC law this Court expressly looked to Matter of Goldman v. McGuire. 64 N.Y.2d 1041 (1985) concerning the Heart Bill statutory presumption. After detailing the statutory language the Court discusses how the presumption changes the legal posture of an applicant by reducing the applicant’s burden of proof on the issue of accidental causation. Id. at 281-282. The Court explained that by using the operative phrase unless the contrary be proved by competent evidence, the Legislature intended to grant accidental disability retirement benefits to the class of first responders targeted by the presumption based on very little evidence. Id. Moreover, Legislature intended that the presumption have the legal effect of shifting the burden to the Pension System to affirmatively disprove causation and in the 39 absence of affirmative disproof, accidental causation must be granted. Id. As stated by the Court: The legislature created the WTC presumption to benefit first responders because of theevidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure to the toxins present at the WTC site in the aftermath of the destruction. Hence, unlike ordinary ADR claimants, first responders need not submit any evidence - credible or otherwise-of causation to obtain enhanced benefits. Nevertheless, the legislature did not create a per se rule mandating ADR benefits for all eligible responders. Rather, it provided that a pension fund could rebut the presumption by “competent evidence.” Under this carefully calibrated framework, we believe that the competent evidence contemplated by the WTC presumption may be equated with the well-established credible evidence standard, provided that the pension fund bears the burden of coming forward with affirmative evidence to disprove causation (See generally Matter of Goldman v. McGuire, 64 NY2d 1041 [1985], ajfg for reasons stated below 101 AD2d 768, 770 [Ist Dept 1984] [treating competent evidence and credible evidence as interchangeable in the context of the Heart Bill statutory presumption]). (Emphasis added). Id at 281- 282. Applying the operative effective of the WTC presumption to the first responders at bar in Bitchatchi and the cases decided with it, this Court granted accidental disability benefits to all three police officers. The effect of the presumption as described by the decisions above tips the bar in favor of accident for Firefighter Sica. The presumption shifts the burden to Appellant to affirmatively disprove by credible evidence that the mechanism of injury (chemical exposure) was indisputably foreseeable such that Firefighter Sica was without excuse to have missed it. Moreover, appellant’s were required to rebut 40 the presumption conclusively with evidence that proceeds from a credible source that is not mere conjecture or unsupported suspicion. Matter of Bitchatchi v. Board of Trustees of the N.Y. City Police Department Pension Fund. 20 N.Y.3d 268, at 281, 982 N.E.2d. 600, 958 N.Y.S.2d 680, (2012)4. At bar all that Appellant has offered to rebut the presumed accident are speculative, generalized facts unrelated to the particular EMS incident in the supermarket. Namely, that Sica is a firemen which is a dangerous job and that he may have had some limited hazardous materials training and experience. However, these allegedly contrary facts are offered by appellants without any affirmative demonstration of how under the circumstances any hazardous materials training or experience could have prevented the injury. ( R 82-84). So too, the dissent’s allegation that Sica should have suspected an air quality problem when he encountered two unconscious victims constitutes mere conjecture and unsupported suspicion. Such thin reeds do not come close to meeting the well- established standards for overcoming the statutory presumptions, including the 4It is submitted that the premise of the Comptroller’s superceding decision that Sica failed to sustain his burden of proof with regard to “accident'’ is flawed. ( R 43 If 15 ). Even if one accepts that the plain languageof the statutory heart presumption in favor of accident is inapplicable initially to reduce an Applicant’s burden of proof. See, Warshawsky v. DiNapoli, 73 A.D.3d 1357 (3d Dept 2010). Certainly, where as here, an Applicant meets his burden of proof before the hearing officer and the Third Department the presumption should be effective to shift the burden of proof to the Comptroller to rebut the presumption in favor of accident. 41 presumption that the injury was accidental. Moreover, the credibility of Appellant’s and dissent’s analysis is further contradicted by the fact that they totally ignore the medical emergency Sica was confronted with which provided him with no time to assess the environment before beginning life saving CPR). As a matter of public policy this Court cannot support an analysis which requires first responders to let citizens die while they take the time to carefully assess the environment around them. This case is similar to Matter of Brown v.Levitt, 58 A.D.2d 915, 397 N.Y.S.2d 171 (3d Dept 1977) where the Third Department held that the presumption in favor of accident was not rebutted where the principal fact alleged by respondent was that he was performing usual and customary duties at the time of his injury. Id. at 173. The Comptroller has clearly failed to rebut the presumption in favor of accident. In this record, official reports filed by the Fire Department document Firefighter Sica’s exposure to two powerful, toxic chemicals. ( R 107, 109, 110). More importantly, the Applicant’s factual account of the incident went uncontested by the Retirement System. Undisputed facts sworn to by Firefighter Sica demonstrating the unexpected and unusual nature of the circumstances of his exposure must be accepted as true for purposes of the accident decision ( e.g. Sica was in EMS mode, no time to assess the environment before beginning CPR on 42 victim, no odor, no visible chemicals in use, power washer not visible to first responders, market occupied with employees, public and first responders without anyone else having symptoms indicating an air quality problem ). ( R 71-74, 76-79). It is submitted that the dissent’s speculation regarding foreseeability while ignoring the medical emergency at hand and the non specific contrary facts offered by the Comptroller are not the affirmative disproof, or the convincing rebuttal with credible evidence required by this Court in order to rebut the statutory presumption in favor of accident. See, Matter of Bitchatchi v. Board of Trustees of the N.Y. City Police Department Pension Fund. 20 N.Y.3d 268, 982 N.E.2d. 600, 958 N.Y.S.2d 680, (2012). It cannot be disputed that Respondent Sica is in the class of firefighters that the New York Legislature intended to benefit when it passed the Heart Presumption Law contained in RSSL § 363-a, which expressly presumes his injury to be the result of an accident. 43 CONCLUSION For all the foregoing reasons it is submitted that the Third Department decision be affirmed in all respects. White Plains, New York September 18, 2017 Dated: Respectfully submitted, ( DONALD P. HENRY Attorney for the Petitioner-Respondent 99 Church Street, 4th Floor White Plains, New York ltf601 (914) 946-7403 TO: William E. Storrs, Esq. Attorney General of the State of New York The Capital, Justice Building Albany, New York 12224 44 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR Part 500.1(j) that the foregoing brief was prepared on a computer using WordPerfect word processing system. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 11,215 words. Dated: September 18, 2017 Donald P. Henry Donald P. Henry P.C. Attorney for Petitioner-Respondent 99 Church Street, 4th Floor White Plains, New York 10601 (914)946-7403 — 45