In the Matter of Robert W. Kowal, Appellant,v.Thomas P. DiNapoli, et al., Respondents.BriefN.Y.February 7, 2018To be argued by JONATHAN I. EDELSTEIN Time Requested: 15 Minutes Albany County Clerk Index No. 3448/15 NEW YORK STATE SUPREME COURT APPELLATE DIVISION - THIRD DEPARTMENT In the Matter of the Application of ROBERT W. KOWAL, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules - against - THE NEW YORK STATE COMPTROLLER and THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, Respondents. BRIEF FOR PETITIONER JONATHAN I. EDELSTEIN EDELSTEIN & GROSSMAN Attorney for Petitioner 501 Fifth Avenue, Suite 514 New York, NY 10017 (212) 871-0571 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS Table of Authorities 11 Preliminary Statement 1 Questions Presented, 1 Summary of Argument 1 Statement of Facts 4 A. The Attack. 4 The Benefit Application and FlearingB. 5 C. JPIO Patsalos' Decision 7 Argument 8 POINT I RESPONDENTS’ DETERMINATION WAS ARBITRARY AND CAPRICIOUS BECAUSE IT VIOLATED THEIR OWN POLICIES AND PRECEDENTS REGARDING ASSAULTS, AND BECAUSE PETITIONER WAS NOT TREATED EQUALLY TO OTHER SIMILARLY SITUATED OFFICERS 11 POINT II RESPONDENTS’ DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE 24 Conclusion 25 Addendum: Unreported Administrative Decisions Add. 1 -l- Matter of Pfeifer Add. 1 Matter of Thorpe Add. 7 Matter of Wilt. Add. 20 -ii- TABLE OF AUTHORITIES Cases: Matter of Charles A. Field Delivery Service, Inc. (Roberts), 66 N.Y.2d 516 (1985) 13,15 Corona Realty Holdings, LLC v. Town of North Hempstead, 32 A.D.3d 393 (2d Dept. 2006) 13 Civil Serv. Emples. Ass'n v. N.Y. State Pub. Empl. Reis. Bd., 300 A.D.2d 929 (3d Dept. 2002) 13 Curtis v. NYS Comptroller, 281 A.D.2d 780, 781 (3d Dept. 2001) 18 Furev v. County of Suffolk, 105 A.D.2d 41 (2d Dept. 1984) 25 Goodman v. County of Suffolk, 138 Misc.2d 323 (Sup. Ct, Suffolk Co. 1987) 21 Hilton Hotels Corp. v. New York City Commissioner of Finance, 219 A.D.2d 470 (1st Dept. 1995) 13 Howard v. Wyman. 28 N.Y.2d 434(1971) 13 In re Donner-Hanna Coke Corp., 212 A.D. 338 (4th Dept. 1925) 21 Matter of Beckley v. Nitido, 123 A.D.3d 1330 (3d Dept. 2014) 8, 19 Matter of Berbenich v. Regan, 81 A.D.2d 732 (3d Dept. 1981) 8, 18-19 -iii- Matter of Kutzma, Reg. No. 3555433-6, H.C. No. 08-0149 (Comptr. 2010) 15, 1 5n,18 Matter of Lichtenstein, 57 N.Y.2d 1010(1981) 12 Matter of Pell v. Board of Education, 34 N.Y.2d 222(1974) 21 Matter of Pfeifer. Reg. No. 0A75992-8, H.C. No. 02-031 5 (Comptr. 2004) 15n Matter of Stefanelli, Reg. No. 334419-1, H.C. No. 01-0237 (March 11, 2002) 13-14, 17, 18, 23 25 Matter of Taylor v. Regan, 103 A.D.2d 884 (3d Dept. 1984). 8, 19 Matter of Thorpe, Reg. No. 3961646-1, H.C. No. 10-0106 (Comptr. 2011) 15n Matter of Totesau-Johnsom Reg. No. 3972654-2, H.C. No. 07-0353 (Comptr. 2010) 15, 18 Matter of Weeks, Reg. No. 3776903-1, H.C. No. 07-0181 (Comptr. 2009) 15, 18 Matter of Westledge Nursing Home v. Axelrod, 68 N.Y.2d 862(1986) 21 Matter of Wilt, Reg. No. 0A85237-6, H.C. No. 07-0347 (Comptr. 2010) 15n Meaney v. Regan, 88 A.D.2d 1020 (3d Dept. 1982) 12 Mosley v. New York City Landmarks Preservation Commission, 2005 N.Y. Misc. LEXIS 3571 (Sup. Ct., N.Y. Co. 2005) 21 -iv- New York Times Co. v. City of New York Comm’n on Human Rights, 41 N.Y.2d 345 (1977) 12n Schuck v. New York State Div, of Human Rights, 102 A.D.2d 673 (1st Dept. 1984), 25 Stork Restaurant v. Boland, 282 N.Y. 256(1940), 24 Tierney v New York State Comptroller, 90 A.D.3d 1215 (3d Dept. 2011). 21 Thompson v. Regan, 185 A.D.2d 577 (3d Dept. 1992) 12 300 Gramatan Ave. Assocs. v. New York State Div. of Human Rights, 45 N.Y.2d 176 (1978) 24 Statutes and Regulations: CPLR § 7803 12n,24 PL § 490.25 22,22n PL § 170.02 22n R&SSL § 605-a 1,2,5,6,9,10,11,16,17 -v- PRELIMINARY STATEMENT Petitioner ROBERT W. KOWAL ("Petitioner" or "Mr. Kowal”) respectfully submits this brief in support of his petition for a Judgment pursuant to Article 78 of the Civil Practice Law and Rules vacating, annulling and setting aside a determination of respondent NEW YORK STATE COMPTROLLER denying petitioner Accidental Disability Retirement Benefits pursuant to Section 605-a of the Retirement and Social Security Law. The petition was commenced in the Supreme Court, Albany County and transferred to this Court by order dated August 10, 2015. QUESTIONS PRESENTED Was respondents’ determination arbitrary, capricious and contrary to1. law where it contravened the Retirement System’s explicitly-stated policy that an assault on a uniformed court officer is an accident as well as administrative precedent in which similar facts were found to constitute compensable accidents? 2. Did respondents lack substantial evidence to support their determination that petitioner did not suffer a compensable accident within the meaning of the Retirement and Social Security Law? Petitioner submits that the answer to both questions is “yes.” SUMMARY OF ARGUMENT This is a petition by a Court Officer seeking a Judgment pursuant to Article 1 78 of the Civil Practice Law and Rules vacating, annulling and setting aside a determination of respondent NEW YORK STATE COMPTROLLER denying petitioner Accidental Disability Retirement Benefits pursuant to Section 605-a of the New York Retirement and Social Security Law. In this case, Court Officer Sergeant Kowal was assigned to work at the Middletown City Court on February 8, 2012, where an assailant burst into the courthouse lobby blasting a shotgun. While other officers took cover, Petitioner Kowal stepped up and quickly shot the assailant, thereby averting a potential mass shooting. As a result of this close brush with death, Mr. Kowal has been suffering from a career-ending psychiatric disorder. Despite his obvious heroism in what can only be described as sudden, unexpected and catastrophic circumstances, the Retirement System, in contravention of its policy that an assault is an accident, denied his application for Accidental Disability Retirement Benefits. Petitioner submits, first of all, that the System’s decision was arbitrary and capricious because it was in violation of respondents’ own precedent. In past briefs to this Court, the respondents have claimed that they make a distinction between assaults on the one hand, and injuries sustained during the course of restraining suspects on the other, and have also argued that a court officer must be a totally passive victim in order for an injury- causing incident to count as an assault. However, a series of administrative 2 decisions reveals that this is not, and has never been, the case. In other cases, the System has concluded, under facts that were indeed more commonplace than this case, that court officers, police officers or others injured in the course of subduing suspects had suffered compensable accidents. Indeed, the very case in which the “assault is an accident” policy was announced involved a court officer who was assaulted by a suspect he was attempting to subdue. In other words, whether a person in Mr. Kowal’s position will receive Accidental Disability Retirement Benefits is a total crapshoot, depending solely on the whims of the claims examiner and/or hearing officer, which is the very definition of arbitrary and capricious conduct and is a violation of the principle that similarly situated litigants must be treated equally. Moreover, this court should consider the policy implications of the Retirement System’s decision. This is, unfortunately, an age where mass shootings have become more and more prevalent, and where law enforcement officials should be encouraged to spring into action as quickly as possible in order to stop armed attackers before they can commit mass casualties, rather than waiting for back-up which can take precious time that translates into lives lost. The respondent’s decision denying that this type of assault qualifies as an accident creates a perverse disincentive to all law enforcement officers in this state who may be faced with a similar decision when facing a mass shooter. A decision by 3 this Court upholding the denial of accidental disability retirement benefits would resonate with every law enforcement officer in the state that when facing an active shooter situation, and raise an uncertainty in the back of his or her mind whether saving countless civilians might jeopardize his or her financial future. This is a decision that no law enforcement officer should be forced to make, and this Court should therefore direct the System to comply with its legal and moral responsibility to compensate Mr. Kowal. STATEMENT OF FACTS Petitioner ROBERT W. KOWAL was employed by the New York State Unified Court System for 15 years. (R.49). He had reached the rank of Court Officer Sergeant and was assigned to work at the Middletown City Court on February 8, 2012, where the attack at issue in the instant case occurred. (R.50). On that date, petitioner was forced to shoot and kill an assailant who had burst into the courthouse lobby, shooting a shotgun into the courthouse, defending himself and numerous bystanders in the process, and suffering a career ending psychiatric disorder as a result. A. The Attack. On February 8, 2012, at approximately 9 A.M., Sergeant Kowal was in the lobby of the Middletown City Courthouse assisting at the x-ray machine when he an Officer Mathisen yell “gun!” (R.51). Officers Mathisen and Truex took cover. 4 Petitioner observed an assailant, later identified as Timothy Mulqueen, outside at the courthouse door holding a 12-gauge shotgun. (R.50-51, 70). Mulqueen crouched down and blast through the closed glass door with the shotgun. (R.50- 51). The gunman fired twice in total, and rather than take cover, Mr. Kowal drew his standard issue 9mm Glock handgun and returned fire at Mulqueen from a distance of 15 feet, striking him. (R.52-53). The shot took Mulqueen down, and the gunman later died of his wounds. (R.53). During the incident, there were approximately 40 bystanders in the lobby, including attorneys, other civilians and prisoners, none of whom were injured due to petitioner’s heroic actions. (R.54). However, Officer Truex was hit in the arm and as a result has a pellet lodged there even to the present day. (R.79). Moreover, the pellets from the shotgun came within inches of petitioner, evidenced by the marks from buckshot by the door Mr. Kowal was standing in front of when he shot the gunman. (R.68). Mulqueen was later found to have an additional 40 additional shotgun cartridges in his possession. (R.55). C. The Benefit Application and Hearing. On or about April 26, 2012, petitioner filed an application for 605A Accidental Disability and Retirement Benefits alleging that he was permanently disabled as a result of the incident that occurred on February 8, 2012. (R.120-129). In the attached cover letter, petitioner’s counsel attached a letter from Richard 5 Krulish, President of the New York Supreme Court Officer’s Association, where he stated that “[t]his incident is the only time court officers were fired upon inside a courthouse and returned fire killing their attacker.” (R.131). (emphasis added). Petitioner’s counsel additionally attached exhibits documenting various commendations Mr. Kowal received as a result of his actions defending the courthouse. (R.133-37). On July 8, 2013, respondents denied petitioner’s application on the ground that the incident that caused his injury do not constitute an ‘accident’ within the meaning of that term as used in Section 605-a of the Retirement and Social Security Law. (R.208). Petitioner timely challenged this determination and requested a hearing. On September 8, 2014, a hearing was held before the Hon. Pano Z. Patsalos. (R.25- 118). At the hearing, respondents entered the Accidental Disability Retirement Benefit application; eight pages of written reports describing the incident; a copy of the job duties for a New York State Court Officer-Sergeant; and a copy of the Court Officers Rules and Procedures Manual into evidence. (R.139-48). Sergeant Kowal was the sole witness at the hearing and testified as to the sequence of events surrounding his accident as set forth above. Additionally, he testified that that although he was trained in the use of handguns, he has never received training regarding a terrorist attack. (R.75-76). Moreover, he testified that 6 he has read the Court Officer’s Rules and Procedures Manual, it doesn’t contain any instructions concerning a terrorist attack, and that he had not received any training for this type of attack and that this was a “new and unexpected incident” for him. (R.77-78). He further testified that while he is trained in the use of deadly force, he is not given special training for combat situations and that this was indeed his first physical confrontation. (R.88, 96-97, 98). C. JHO Patsalos’ Decision. At the close of the hearing, JHO Patsalos reserved decision and requested that the parties submit memoranda of law. Subsequently, on December 2, 2014, petitioner’s counsel filed a memorandum of law on his behalf. (R.150-63). In this memorandum, petitioner’s counsel first argued that petitioner was injured by what would be considered to be a terrorist attack under Penal Law Section 490.05 and that petitioner had not been trained to respond to a terrorist attack and that therefore the assault could not be considered part of his ordinary duties. (R.157, 160). Moreover, petitioner’s counsel argued that the case law concerning police officers involved in shootings was inapposite since uniformed court officers are not considered police officers as a matter of law. Rather, court officers are considered to be peace officers pursuant to C.P.L. 2.10 (21)(a), and as such, New York State 7 Law recognized that their duties were very different from those of police officers. (R.159). Furthermore, petitioner’s counsel contended that nothing in his training had prepared Mr. Kowal to stop a mass casualty attack and that, as such, the event cannot be considered a normal part of his employment duties. (R.160-61). On November 25, 2014, respondents likewise submitted a memorandum of law to JHO Patsalos (R.164-68). Respondents argued that petitioner’s designation as a peace officer was inconsequential and that his training and use of firearms was part of his normal and expected duties. (R.167). Respondents further argued that since his duties included, inter alia, security of the court facilities, including use of deadly force, he was thus “engaged in the ordinary performance of his duties when he fired his service pistol at the gunman.” (R.167). Finally, respondents contended that there was no evidence to support petitioner’s contention that the attack on the courthouse was a “terrorist act.” However, even if the incident was adjudicated to be a “terrorist” act, respondents still maintained that it would not rise to the level of an “accident” as defined by the Retirement and Social Security Law. (R.168.) On January 12, 2015, JHO Patsalos issued a memorandum decision denying petitioner’s application for benefits. (R.169-75). After discussing three cases involving shooting incidents by police officers - Matter of Berbenich v. Regan, 81 8 A.D.2d 732 (3d Dept. 1981), Matter of Taylor v. Regan. 103 A.D.2d 884 (3d Dept. 1984) and Matter of Becklev v, Nitido, 123 A.D.3d 1330 (3d Dept. 2014) - the JHO found that the “circumstances the confronted [petitioner] and his reaction to it was similar to [those cases] in that he responded to the situation by executing his ordinary employment duties as instructed and trained in security, emergencies, use of his firearm and use of deadly force in response to deadly force.” (R.174). The JHO discounted the fact that petitioner in this case was a peace officer, and not a police officer, opining that both are charged with responsibility to protect the public and to use firearms and deadly force when necessary. Thus, the JHO found that an ‘injury from a foreseeable event occurring during the performance of an ordinary employment duty or from a risk inherent in such employment is not an accident.” (R.174). The JHO furthermore concluded that whether the attack could be categorized as a terrorist incident or not, the duties and responsibilities of a court officer - to “protect the public... and safety of all individuals on the courthouse premises” - remain the same. (R.174-75). Notably, the JHO stated that the petitioner acknowledged this during the hearing itself at page 65 of the transcript, but a close look at the transcript reveals that that acknowledgement was in the context of use of deadly force and not a terrorist attack. (R.174-75). The JHO thus concluded that petitioner had failed to sustain his burden of showing that the attack 9 that he stopped on February 8, 2012 constituted an accident as defined by section 605-a of the Retirement and Social Security Law. On March 4, 2015, respondent Comptroller adopted JFIO Patsalos’ findings of fact and conclusions of law. (R.177). Subsequently, On March 9, 2015, respondents sent a letter to petitioner’s counsel notifying him of their decision. (R.179). No further administrative remedies are available to petitioner. Accordingly, petitioner made application to this Court for a Judgment pursuant to Article 78 vacating, annulling and setting aside respondents’ determination denying petitioner Accidental Disability Retirement Benefits pursuant to Section 605-a of the New York Retirement and Social Security Law. Petitioner requested this relief on the basis that this determination was arbitrary, capricious, contrary to law and not supported by substantial evidence. (R.4-23). Respondent interposed an answer to the petition. (R.203-07). Because the petition raised a substantial evidence issue, it was transferred to this Court by order dated August 10, 2015. (R.l-3). Now, for the reasons set forth herein, petitioner respectfully requests that this Court grant his petition, vacate and annul the respondents’ determination, and remand with instructions to award Accidental Disability Retirement Benefits. 10 POINT I RESPONDENTS’ DETERMINATION WAS ARBITRARY AND CAPRICIOUS BECAUSE IT VIOLATED THEIR OWN POLICIES AND PRECEDENTS REGARDING ASSAULTS, AND BECAUSE PETITIONER WAS NOT TREATED EQUALLY TO OTHER SIMILARLY SITUATED OFFICERS Section 605-a of the New York Retirement and Social Security Law states in pertinent part that a member of the New York state unified court officer retirement system: ... shall be entitled to an accidental disability retirement allowance if, at the time application therefor is filed, such member is: 1. Physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident, not caused by his own willful negligence, sustained in such service and while actually a member of the retirement andsystem; 2. Actually in service upon which his or her membership is based. However, in a case where a member is discontinued from service subsequent to the accident, either voluntarily or involuntarily, and provided that the member meets the requirements of paragraph one of this subdivision, application may be made either (a) by a vested member incapacitated as the result of a qualifying World Trade Center condition as defined in section two of this chapter at any time, or (b) not later than two years after the member is first discontinued from service. 11 See Retirement and Social Security Law § 605(a)(a)(l)-(2). In the instant case, it is undisputed that petitioner, who had the legal status of a Court Officer Sergeant, is a member of the system, and that he is permanently disabled from performing his duties. Nor is it disputed that his application for disability retirement benefits was timely. Accordingly, the only issue before this Court is whether petitioner suffered a compensable accident within the meaning of the Retirement and Social Security Law. In the leading case of Matter of Lichtenstein. 57 N.Y.2d 1010 (1981), the Court of Appeals defined an “accident” for purposes of the Retirement and Social Security Law as a “sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact.” An injury which results from “risks inherent in the regular duties of an applicant’s employment” is not an “accident.” See Thompson v. Regan, 185 A.D.2d 577 (3d Dept. 1992). Petitioner first contends that, in the instant case, respondents’ determination that his injury was caused by a risk inherent in his employment should be set aside as arbitrary, capricious and contrary to law because it contravened the Comptroller’s own precedent.1 “It is true that the Comptroller is vested with The plain language of CPLR § 7803 provides that a petitioner may seek relief under Article 78 of the CPLR for an administrative action which amounts to an error of law. Moreover, the scope of this Court’s review of errors of law includes review of whether the determination of an administrative agency violated 12 ‘exclusive authority’ to determine whether a certain event constitutes an accident.” Meanev v. Regan. 88 A.D.2d 1020, 1021 (3d Dept. 1982); see also Retirement and Social Security Law § 74. Petitioner also acknowledges that an administrative agency's interpretation of a statute is entitled to deference. See Hilton Hotels Corp. v. New York City Commissioner of Finance, 219 A.D.2d 470, 476 (1st Dept. 1995); see also Howard v. Wyman. 28 N.Y.2d 434, 438 (1971). Nevertheless, it is additionally well settled that "an agency's failure to provide a valid and rational explanation for its departure from its prior precedent mandates a reversal, even though there may be substantial evidence in the record to otherwise support the determination." See Matter of Corona Realty Holdings, LLC, Respondent, v Town of North Hempstead, 32 A.D.3d 393, 395 (2d Dept. 2006), citing Matter of Charles A. Field Delivery Service, Inc. (Roberts), 66 N.Y.2d 516, 520 (1985); see also Civil Serv. Emples. Ass'n v. N.Y. State Pub. Empl. Reis. Bd.. 300 A.D.2d 929, 930-31 (3d Dept. 2002) ("where an agency's decision wholly departs from its own precedent in like cases, it will be deemed arbitrary and capricious unless the agency sufficiently explains the departure"). In cases involving assaults by upon law enforcement officers, respondent Comptroller has exercised the “exclusive authority” conferred by the Retirement the regulations set forth by the commissioner of that agency. See New York Times Co. v. City of New York Comm’n on Human Rights, 41 N.Y.2d 345 (1977). 13 and Social Security Law by determining that they qualify as accidents. Specifically, in Matter of Gerald Stefanelli, Reg. No. 334419-1, H.C. No. 01-0237 (March 11, 2002) (R.181-83), a court officer applied for disability retirement benefits after being assaulted by a prisoner in the courtroom. (R.181-82). Specifically, the court officer in Stefanelli “grabbed the [prisoner], whereupon the [prisoner] began to kick, punch, scream and attempted to bite” him. (R.182). In granting the court officer's application for benefits, respondents ruled that, “[t]hough [a court officer’s] job description states that his duties included ‘physically restraining] unruly individuals, it has never been held that a physical assault by the restrained person removes the incident from the definition of an ‘accident.’” (R.182). Accordingly, because Stefanelli “sustained injury as the result of a physical assault respondents correctly found that he was entitled to benefits. (R.182). (emphasis added). In the Stefanelli decision, respondent Comptroller unequivocally concluded, as a matter of law, that assaults on uniformed officers constitute accidents. Moreover, the Comptroller did not differentiate between unprovoked or random assaults and assaults that occurred in the process of retraining an unruly individual. Although Stefanelli himself was in the process of restraining an unruly and struggling defendant when he was assaulted, the Comptroller nevertheless determined that it was an accident. In fact, respondent included this category in its 14 definition of what constitutes an assault. Moreover, the Comptroller has never explicitly disavowed Stefanelli or explained why assaults by involving firearms should be treated differently. Rather, the Comptroller continues to pay lip service to Stefanelli and to its policy that an assault is an accident - thus meaning, under Charles A. Field Delivery Service, supra, and its progeny, that it was obliged to follow that precedent in adjudicating this case-while undermining that policy in practice. Moreover, there are other precedents in which officers similarly situated to Mr. Kowal have been found to have incurred compensable accidents. Even a cursory analysis of those decisions — which were annexed to the original Article 78 petition (R.185-202) - reveals that there is no meaningful distinction between this case and prior cases in which benefits have been granted. These are Matter of Kutzma, Reg. No. 3555433-6, H.C. No. 08-0149 (Comptr. 2010),2 Matter of Totesau-Johnson, Reg. No. 3972654-2, H.C. No. 07-0353 (Comptr. 2010), and Matter of Weeks, Reg. No. 3776903-1, H.C. No. 07-0181 (Comptr. 2009), each cases in which respondents found - or sometimes even conceded - that court officers injured while subduing unruly defendants and/or effectuating arrests in the 2 The hearing officer’s decision in Kutzma does not describe the underlying facts of the assault; however, the undersigned, who litigated an Article 78 petition arising out of the Kutzma matter, is familiar with those facts. 15 courtroom had suffered compensable accidents.3 Clearly, if a physical attack by a defendant in a courtroom - an event that is a somewhat common occurrence in the career of a court officer - constitutes a compensable accident, then an attempted mass shooting by a shotgun wielding gunmen in the courthouse must also constitute a compensable accident. In this case, the assault on petitioner (and innocent bystanders who were saved by petitioner’s actions) was, if anything, far more out of the ordinary than in the above-cited cases that were found to be compensable accidents. Indeed, petitioner testified that he had had no training for this type of mass shooting event and, in his original application for 605-a benefits, petitioner’s counsel attached a letter from Richard Krulish, President of the New York Supreme Court Officer’s Association, where he stated that “[t]his incident is the only time court officers were fired upon inside a courthouse and returned fire killing their attacker.” 3 Likewise, in Matter of Pfeifer. Reg. No. 0A75992-8, H.C. No. 02-0315 (Comptr. 2004) (Add.1-6), in which a police officer was injured after a suspect he had arrested and was attempting to secure in the back seat of a police car “donkey- kicked” him, and Matter of Thorpe. Reg. No. 3961646-1, H.C. No. 10-0106 (Comptr. 2011) (Add.7-19), in which a therapy aide was suddenly thrown across the room by a patient she was escorting, the Comptroller found or conceded that accidents had occurred. In Matter of Wilt, Reg. No. 0A85237-6, H.C. No. 07-0347 (Comptr. 2010) (Add.20-24), the Comptroller found that an accident occurred when a suspect who was being apprehended “suddenly and precipitously spun away” from the arresting officer - again, all of these situations are far more common and far-less violent than the potential mass shooting incident that Mr. Kowal thwarted. 16 (R.131). There is no reasonable explanation why an event that has never happened before in the New York State courts should be considered an ordinary incident of employment, or why this once-in-a-lifetime event does not constitute an accident when other, much more commonplace assaults on court officers do. In other words, the Retirement System’s treatment of officers injured by assaultive individuals is nothing more than a crapshoot, depending not on any coherent standard but on the whim of the hearing officer or claims examiner who evaluates their application. This is the very definition of “arbitrary and capricious” - an agency which routinely and randomly disregards its own precedent on similar facts. When this case is weighed according to the proper standard, it is beyond question that petitioner was assaulted in the manner contemplated by Stefanelli and the other administrative precedents cited above. Petitioner was attacked by an armed gunman in a mass shooting incident in what cannot seriously be described as anything but an assault. It is undisputed that Mr. Kowal’s injuries were not the result of negligence on his part, much less willful negligence, but were caused by the attack of the armed gunman and Mr. Kowal’s brave reaction in returning fire immediately, causing the gunman’s death, saving countless bystanders, but resulting in a debilitating case of PTSD. It should also be noted that, unlike other cases in which this Court has found 17 that court officers did not suffer accidents, see, e,g„Ammann v. Comptroller, 13 A.D.3d 858 (3d Dept. 2004), Mr. Kowal was not attempting to subdue or restrain Mulqueen when the shooting started, nor was Mulqueen a person who he was assigned to escort or guard. Indeed, Mulqueen was not even in the courthouse when he opened fire, but did so from just outside the door before bursting in. Mr. Kowal, and the others in the courthouse, were assaulted out of the blue, from a place outside their zone of control, and the assault was neither foreseeable nor an ordinary part of their duties. This Court, in Curtis v. NYS Comptroller, 281 A.D.2d 780, 781 (3d Dept. 2001), stated that “[i]n the case of a police officer who is shot, the question of whether the injury was the result of an accident sustained while in service has been found to depend upon whether the officer was engaged in police duties when the shooting occurred.” In this case, there is no question of whether petitioner was in service during the shooting incident - he received numerous commendations as a result of his brave actions - and this Court should answer the question it posed in the affirmative and find that, of course, petitioner’s stopping a potential mass shooting incident constitutes an accident as a matter of law. It is thus clear that the Retirement System disregarded their own agency’s precedent in Stefanelli, Kutzma, Totesau-Johnson and Weeks, supra, all of which involved court officers, not to mention the other cases that involved similar injuries 18 to police officers and/or emergency personnel. The cases relied upon by the JHO are not to the contrary, as each is readily distinguishable. For instance, in Berbenich v. Regan, 81 A.D. 2d 732 (3d Dept. 1981), a police officer responding to a burglar alarm at a church drew his gun when a door unexpectedly flew open. The officer’s gun discharged, killing the pastor of the church and causing the police officer to become emotionally disabled. The Berbenich case involved an accidental discharge of a firearm and did not involve an assault on the officer in any sense and is thus not similar to the instant case. In Taylor v. Regan, 103 A.D.2d 884 (3d Dept. 1984), also relied on by the JHO, there were two incidents, one in which the petitioner (a police officer) shot an armed man who had killed his common-law wife and another police officer earlier in the day, and one in which he shot and killed an escaped convict who was holding a gun to the head of a hostage. In Beckley v. Nitido, 123 A.D.3d 1330 (3d Dept. 2014), which also involved a police officer, the petitioner saw a vehicle coming toward him with a man on the hood firing a gun into the windshield, and he fired a shot at the man and missed. The Taylor and Beckley cases are distinguishable from this case in two significant ways. First, petitioner is a court officer rather than a police officer, and as such, it is less expected that a court officer will encounter guns and deadly 19 violence. Indeed, as noted above, the New York Unified Court System had never before experienced an incident similar to the shooting incident to which Mr. Kowal responded. Second, neither Taylor nor Beckley were being shot at when they fired their weapons - i.e., they were not being assaulted - whereas Mr. Kowal was clearly shot at and was one of the targets of the gunman’s fire. Given that Mr. Kowal testified that gunfire came within inches of him and that his fellow officer Truex was hit in the arm by the gunfire, it is clear that petitioner was being assaulted at the time he fired back and killed Mr. Mulqueen. Thus, the JHO's decision represented an erroneous and unjustified departure from his own agency's policies and precedents and was arbitrary, capricious and contrary to law, and should therefore be set aside and remanded with instructions to grant petitioner the disability retirement benefits he seeks. The JHO’s decision is wrong for other reasons as well. The JHO’s decision dismissing the contention that the February 8, 2012 shooting was tantamount to a terrorist attack and thus not part of his ordinary employment duties is both absurd and based on a misinterpretation of the record. Specifically, in his decision, the JHO concluded that whether the attack could be categorized as a terrorist incident or not, the duties and responsibilities of a court officer- to “protect the public [....] and safety of all individuals on the courthouse premises” - remain the same. (R.174-75). The JHO stated that the petitioner acknowledged this during the 20 hearing itself at page 65 of the transcript, but in fact petitioner’s testimony was given in response to a question on the use of deadly force in general, and thus did not concern his duties and options in the event of a mass shooting or terrorist attack. (R.174-75, 89). In fact, Mr. Kowal acknowledged the exact opposite point as he testified that that although he was trained in the use of handguns, he has never received training regarding a terrorist attack or how to respond to one. (R.75-76). Moreover, he testified that he has read the Court Officer’s Rules and Procedures Manual, but it doesn’t contain any instructions concerning a terrorist attack, and that he had not received any training for this type of attack was a “new and unexpected incident” for him. (R.77-78). He further testified that while he is trained in the use of deadly force, he is not given special training for combat situations and that this was indeed his first physical confrontation. (R. 88, 96-97, 98). Thus, the JHO’s failure to distinguish whether a terrorist attack was an out of the ordinary event compared to a regular shooting incident was plainly erroneous on a purely factual level. An administrative action is arbitrary and capricious if it "is without sound basis in reason and is generally taken without regard to the facts." Matter of Pell v. Board of Education. 34 N.Y.2d 222, 231 (1974). Accordingly, an administrative determination may be overturned if it is based upon a mistake of fact. In re Donner-Hanna Coke Corp., 212 A.D. 338 (4th 21 Dept. 1925); see also Matter of Westledge Nursing Home v. Axelrod, 68 N.Y.2d 862 (1986) (administratively imposed assessment reduced where based on a mistake of fact); Mosley v. New York City Landmarks Preservation Commission. 2005 N.Y. Misc. LEXIS 3571, *12-13 (Sup. Ct., N.Y. Co. 2005) (finding that the test of whether a decision should be annulled is “whether the administrative action is without foundation of fact”); Goodman v. County of Suffolk, 138 Misc.2d 323, 325 (Sup. Ct., Suffolk Co. 1987) (child support assessment modified where mistake of fact occurred at administrative level); Tierney v New York State Comptroller. 90 A.D.3d 1215, 1215-16 (3d Dept. 2011) ("a denial upon such ground must be supported by the record and not rest merely upon speculation"). In this case, respondents clearly relied on a mistake of fact since - as explained above - there was no evidence that petitioner acknowledged that his duties and training were the same for a terrorist attack as opposed to a run of the mill shooting incident. In fact, petitioner clearly stated he had not been trained for such an incident and thus the countless bystanders were saved because of the quick thinking of petitioner, and not formal training, in repelling a potential mass shooter in what was clearly an out of the ordinary situation. The shooting that occurred was plainly either a terrorist act per se or akin to a terrorist act. Section 490.25 of the Penal Law describes the crime of Terrorism as committing on of the specified offense with the intent to, inter alia, “affect the 22 „4conduct of a unit of government by murder, assassination or kidnapping. It is clear that the gunman’s actions in this case were meant to affect the conduct of a government unit, in this case the Middletown Courthouse, by causing mayhem and destruction and shutting it down for a period of time. It is clearly erroneous to conclude that reacting to a terrorist attack was all in a day's work for Mr. Kowal and part of his ordinary employment duties as a court officer when the event at issue were so clearly extraordinary. Indeed, the JHO's conclusion that the event precipitating the injury was a risk of Mr. Kowal's ordinary employment duties is contrary to the lesson of McCambridge v. McGuire, 62 N.Y.2d 563, 567 (1983), which ruled that it was error to "focus[] on the petitioner's job assignment" in determining whether an injury to a police officer was a compensable accident and instead the focus must be on "the precipitating cause of injury." Petitioner also respectfully requests that the Court consider the moral and practical dimensions of the Comptroller’s decision in this case. If the Comptroller’s disregard of Stefanelli is allowed to stand, then assaultive conduct on court officers (and any bystanders at a government facility) when a mass 4 “Specified offense for the puiposes of P.L. § 490.25 include offenses that are found in P.L. 70.02 and include attempted murder in the 2nd degree, attempted assault in the 1st degree, and aggravated assault on a peace officer, see P.L. § 490.05 (3)(a), all of which respondent cannot conceivably argue were not committed by the gunman in this case. 23 shooting occurs would go uncompensated if and when a court officer decides to stand up and risk his life to thwart the attack. Being shot at by a mass shooter, and the consequences thereof, will be treated as nothing more than “all in a day’s work” for the men and women who protect our courts. This would result in the absurd situation where any court officer would be faced with a potentially dangerous situation would have to consider whether saving countless civilians might jeopardize his or her financial future (by having to live on a much less generous pension) for merely bravely doing one’s job. In an age where mass shootings are unfortunately becoming an unsurprising occurrence, a decision upholding respondent’s determination would amount to a policy with a perverse disincentive to law enforcement officers in this state to hold back until reinforcements arrive rather than act quickly to neutralize the threat as petitioner Kowal did. This is the exactly contrary to the policy that petitioner submits in the state should be encouraging. A decision otherwise will speak loudly and surely resonate with the law enforcement community. Therefore, this Court should find that the determination in the instant case was both in violation of the rules, regulations and precedents previously established by respondent and arbitrary, capricious and contrary to law, and should therefore be set aside and remanded with instructions to grant petitioner the disability retirement benefits he seeks. POINT II 24 RESPONDENTS’ DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE A fact-finding determination of an administrative agency should be vacated and annulled by a court if the determination, in light of the record before the agency, is not based on substantial evidence. CPLR § 7803(4). In Stork Restaurant v. Boland, 282 N.Y. 256 (1940), the leading decision on this issue, the Court of Appeals stated that “[a] finding is supported by the evidence only when the evidence is so substantial that from it an inference of the existence of the fact found may be drawn reasonably.” Id. at 273 (emphasis added); see also 300 Gramatan Ave. Assoc, v. New York State Division of Human Rights, 45 N.Y.2d 176, 182-83 (1978). Other New York appellate courts have consistently reiterated that a determination is only based upon substantial evidence where an inference of “the fact found” may be reasonably drawn. Furey v. County of Suffolk, 105 A.D.2d 41 (2d Dept 1984); see also Schuck v. New York State Division of Human Rights, 102 A.D.2d 673 (1st Dept. 1984). In the instant case, there was no substantial evidence in the record to support JHO Patsalos’ conclusion that petitioner acknowledged that his duty was the same regardless of whether the attack was a terrorist act or not. (R.174-75). In fact, as outlined above, Mr. Kowal acknowledged the exact opposite point as he testified that he had not received any training for this type of attack was a “new and unexpected incident for him. (R.75-78, 88, 96-97, 98). Instead, it is undisputed 25 the petitioner was injured by an out of the ordinary attempted mass shooting and was injured as a result of a this mass shooting attack by the gunman. Thus, the instant matter is analogous to Stefanelli and the other System precedents and perhaps even more pointed in that petitioner was injured by a direct assault physical confrontation after thwarting an attempted mass shooting event at a courthouse. Thus, there was substantial evidence that petitioner’s injury was the result an assault and that the determination should be set aside. CONCLUSION WHEREFORE, in light of the foregoing, petitioner respectfully requests that respondents’ determination be vacated, annulled and set aside, that this case remanded to respondents with instructions to grant 605A Accidental Disability Retirement Benefits to petitioner, and that this Court grant such other and further relief to petitioner as it may deem just and proper. Dated: New York, NY February 9, 2016 A :y ml ONATHAN ITEDCrÿTElN £3 cJ Of Counsel: Robert M. Grossman 26 ADDENDUM {Page 1 of o) JWATJmQE£EllFEfL[ADDÿb6l L-vl■dJifiiZZl ’ # NEW YORK STATE POLICE AND FTRE RETIREMENT SYSTEM In the Matter of the Application of PAUL L. PFEIFER . . Reg. No.: 0A75992-8 . H.C. No.: 01-0315 Pursuant to Section 74 or 374 of the Retirement and Social Security Law for a Hearing and Redetermination Hearings having been held in the above-entitled matter on October 30, 2003 and April 1, 2004 in Hauppauge, New York, with tire HONORABLE. JOHN A. MORIARITY, presiding as Hearing Officer, and the applicant,' PAUL L. PFEIFER, having apoeared in person and by JORDAN A. ZEIGLER, his Counsel, and the NEW YORK STATE AND LOCAL EMPLOYEES’ RETIREMENT SYSTEM having appeared by GEORGE KING, ESQ., its Counsel, by LISA LASHLEY, ESQ., of Counsel, and all of the proofs been read, and all of the evidence taken and introduced having been read and considered, Tins document constitutes the'final determination of die State Comptroller and supersedes.the decision of the Hearing Officer, to the extent that it is inconsistent therewith, SUPPLEMENTAL FINDINGS OF FACT 1. The applicant has previously been found to be permanently incapacitated for the performance of duties and approved for Performance of Duty Disability Retirement based on the October 2, 1998 incident. NOW, after due deliberation, the State Comptroller accepts the remaining Findings and Conclusions of the Hearing Officer as attached hereto. Based upon the foregoine Findings of Fact and Conclusions of Law, IT IS HEREBYDETERMINED AND DIRECTED that the application of PAUL L. PFEIFER for Accidental Disability Retirement be and the same is hereby GRANTED. Dated at Albany, New York, this day of llfcMti?rV". 2004. ALAN G. HEVESI State Comptrollerÿÿ by Laum Deputy Comptroller Add. (F«ge 2 of 6) i■■■I'.W.'.J* —-1ILJVJ''- ■�***�.I'..-—■SjJ*V_.■•»j‘ "C-. ■.I *L-Lv/fui HEW YORK STATE AND LOCAL RETIREMENT SYSTEM In- the Matter of the Application of PAUL L. PFEIFER Reg. !rOA75992“8 K.C. 03-0315 Pursuant to Section 74 or 374 of the ■ Retirement and Social Security Law for a Hearing and Redetermination. . X Hearings having been held in the above entitled matter:cn October 30, 2003 and on A.pril 1, 2004 in Hauppauae, New York, with the Honorable John A. Moriarity presiding as. Judicial Hearing Officer, and the applicant, Paul L. Pfeifer, having appeared in person and by his attorney, Jordan A-. Ziegler, Esq., of the firm of Breeder, Fishman, Pasternack, Popish, Heller, Rubin and Reiff, Esas., and the New York State and Local- Employees7 Retirement System (hereinafter referred to as The System) having appeared' by George King, Esq. its counsel, by Lisa G. Lashley, Esq., of Counsel, and all of the exhibits and all of the evidence taken and introduced having been read and considered and letter, briefs submitted bvl System's Counsel, Lisa Lashley Esq., and applicant's Counsel, Jordan A. Ziegler, Esq. NOW, after due deliberation, I, John A. Moriarity, the ..judicial hearing officer, find and decide as follows: 1 ; (Page 3 of <3> •\i• •s V•r:7I'. ’.w"* £, ISSUE Does the incident alleged to have occurred on October 2 1998 constitute an "accident" as that term is used in the Retirement and Social Security Law? FIMDiyiGS OF FACT The application for Tier 1 ,and 2 Accidental Disability was timely received by the System, on September 20, 2001. On May 13,' 2002, the System found'that the incident alleged to- have occurred on October 2, 1998 did not constitute an i "accident" as that term is used in Section 363 of the Retirement and Social Security Lav/, thereby determining and directing that the application be denied. A timely request for a hearing and redetermination- was received by the System. The applicant had been employed by the Southampton Town Police Department as' a police officer since 1S94 and was so employed on the date of the incident, October 2, 1998. He retired as a police officer in May 2001. On October 2, 1998, applicant responded to a police radio call involving a.domestic dispute. Police Officer Peter Berncgoazi was also -at the scene and interviewed 'the wife while . applicant interviewed the husband. Applicant placed the husband under arrest, handcuffed pim behind -his back and placed him in ! ! I 2 i ! Add.3 ! (Page 4. of 5> the back seat of the police car. After proceeding a few blocks from the scene, the husband attempted to kick out the rear and door windows of the police car. Applicant stopped his car, get out and went to the rear passenger door intending to open the door and secure the husband in a seat belt. When applicant opened the door, the husband, using both of this feet, donkey- kicked the applicant on his left shoulder area causing- the applicant to fly backwards. , Police Officer 3ernogozsi who had been following in his patrol car and testified to substantially the same facts, opened the rear door on the driver's side of applicant's patrol car and subdued the husband. ' Prior to this incident, applicant had never "been kicked or assaulted in this type of way before." As a result of the incident, applicant was injured. l ! i ( ! / 1 ; : I i : CONCLUSIONS .OF LAW ■I In an administrative hearing the applicant bears the burden of proof -(State Administrative Procedure Act, Section 306 (1); Zolzer v. New. York State Comptroller, 196 AD 2nd 934). In Matter of Lichtenstein vs. Board of Trustees, 57 NY 2r,d - V 1010, the court defined an accident as "a sudden, fortuitous mischance, out of the ordinary and injurious in impact." 3 Add.4 ! (Page 5 of 6) In Matter of Penkalski v. McGuinn 292 NY 2,ld 735, 736, citing Matter of Cambridge v. McGuire, 62 MY 2nd 563, 567-568, the court stated, "crucial to the finding of- an accident - is a precipitating accidental event - which was not a risk of the work performed." See also Jonigan vs. McCall, 291. AD 2nd 766. In Echols -vs. Regan, 161 AD 2nd, 1024, 557 NYS 2r'd, 596, s patient during an otherwise uneventful extraction of three abscessed teeth suddenly and unexpectedly jerked and twisted his body away from Echols .pulling him across a chair resulting in an Finding this to be an accident, the court found that theinjury. incident was sudden.and unexpected, the risk of such action not being inherent in the ordinary performance of his duties as a dentist. I find that the donkey-kicking of the applicant was sudden, unexpected and cut of the ordinary, causing injuries to the .j fhat the assault on the applicant was not inherent in the ordinary performance of his duties as a police officer. Based upon the foregoing Findings of Fact and Conclusions of Lav/, it is HEREBY DETERMINED that the applicant has sustained his burden of proving that the incident of October 2, 1998 was an accident. ! ! J 4 ! (Page 5 of 6) iv; *-1~::: t Accordingly, the.application for accidental disability retirement is granted. // / < \ i V // •Jphjv A. Moirlartv Hearing Officer * DATED: October 28, 2004 JM:dls :: ! ■ I | : I:: 5 - Ad©”.6 (Page 1 of 13) MATTER OF THORPE [ADD. 7-19J NEW YORK STATE AND LOCAL EMPLOYEES’ RETIREMENT SYSTEM -In the Matter of the Application of CHRISTINE A. THORPE . ' Reg.-No.: 3961646-1 - . . . H.C. No.: 10-0196' . Pursuant to Section 74 of the Retirement and Social SecurityLaw, ■ . . for a Hearing and {ÿdetermination . • . This document constitutes the final' determination of the 'Executive Deputy Comptroller' of the jNew York State and Local Employees’ Retirement System pursuant to . ; designation''b.yt the State Comptroller. . v> ' f. • A hearing having been held on December,;:?, 2010,. in White Plains, NevyYork, with ■ . the HONORABLE yvStliLIAM.R. LAMA’RCA, presiding 'as Hearing Officer,.- and the applicant, - CHRISTINE-tA.' THORPE,.having Appeared .in person; and 'pho sej'and the NEW. YORK . '. STATE.<ÿND LOCAL EMPLOYEES' RETIREMENTCYSTEM having appeared by;'RvOBERT COUGHLIN,- ESQ.,, its). Counsel,- by PATRICIA"CUTER," ESQ., of :Counsel;, and the HONORABLE L. PAUL KEHOE having render.edjthe decision, and all of the evidence taken . 'and introduced having been'read and:considered,' .. 1. ■ . .... NOW, after*'due -deliberation,: the Executive Deputy of the. New York ■State,and; Local Employees’ Retirement System accepts the Findings and: Conclusions of . thebearing Officenlas attached. . • ' -. . , ' IT IS DETERMINED AND DIRECTED; that the - application of. CHRISTINE A: - W ‘THORPE for ARTICLE 15 DISABILITY RETIREMENT benefits'-is DENIED; Dated at Albany,.New York, this /7-ÿriay ofSeptember 20-11 -by ■ ■ ■ - Kevin F.-Murray " Executive;-Deptly'Comptro!!er Add. 7 (Page 2 of 13) NEW YORKSTATE AM) LOCAL RETIREMENT SYSTEM In the Matter of the Application Christine A. Thorpe .Reg. No.: 3961646-1 H.G. No.: 10-0106 Pursuant to Section 74 or 374 of the Retirement and Social Security Law for a Hearingand Redetermination PROCEDURAL STATEMENT A Plearing was held in the above-entitled matter on December 7,- 2010 before the Honorable WillianvR. Lamarca. Applicant was not represented by counsel. The Retirement System,was represented by Patricia.Suter, Esq. Applicant presented her own. • testimony and-submitted two exhibits which were deceived in evidence as Applicant’s'A (medical records) and Applicant’s B (medical records). /The- Retirement System ■ presented no witness testimony but did .submit exhibits which were received in evidence • as Systems 1 through 5, consisting of Designation, Application for Article 15 Disability, . . Retirement, Denial of the Application by the Retirement System, medical records and - more medical records, respectively. The undersigned was appointed as Hearing Officer for the purpose of renderings decision in this'matter pursuant to a designation by Kevin F.-Murray, Executive Deputy' Comptroller, dated May 2, 2011. i1 Add. 8 (Page 3 or 13) The record provided by the Retirement System consists of 489 pages on compact disc. ISSUES HEARD AND CONCLUSION REACHED The Retirement System concedes that an incident that occurred on September 24, . 2007, when Applicant was injured at work constitutes an “accident” within the meaning of that term as it is used in tire Retirement.& Social Security, Law. Consequently, she does not have to prove that she has 10 years of service credit to qualify, for disability retirement if she is permanently, incapacitated as a natural and proximate result of the “accident.” , The issue heard is whether Applicantis permanently incapacitated for the performance of duties as a Mental'Health..Therapy Aide and, if.so, whether her incapacity < is the natural and proximatehesult of the “acciderif’of September 2'4, 2007. The . conclusion reachedis that Applicant has not met her burden of proof-to show that she is permanently incapacitated for performance of duties as a'Mental Health Therapy. Aide. FINDINGS OF FACT . (Page references are to the Record as provided on CD) : 1. . Applicant was employed as a Mental Health Therapy Aide at the;-Bronx Psychiatric Center. Applicant'filed an application for Article IS Disability Retirement with the State Comptroller on September 17, 2008. Applicant alleges in her application that she is disabled because of “assault that occurred on 9/24/07.1had to have two surgeries plus I have to live with herniated disc in my cervical spine and lower back.” (Systems 2) ‘On August 21, 2009, the Retirement System denied the application on the grounds that “It is hereby found that the Applicant is not permanently.incapacitated for - 2 Add. 9 (Page *i of 13) the performance of duties.” (Systems 3) Applicant filed a timely Request for Hearing and Redetermination. • 2. Tire Hearing Officer took preliminary; testimony ixom Applicant as to- whether she received a CD containing the medical records with' a letter advising her that she had 45 days to:submit additional medical records. Applicant testified that she did not receive the CD and letter. The Retirement System conceded that the CD and letter were not correctly,addressed to Applicant and consented to the introduction of additional medical records provided by. Applicani.(R’25) Applicant further testified that she had , ‘ surgery performed on her.cervical spine on November 22, 2009. The surgery was . performed on her anterior cervical spine €6-G7 with insertion o£4 screws and a plate; . (R 26) Applicant testified that.she was not able to get the operative notesirom the surgeon hecause'of the close proximity, in time between the surgery and the hearing. Tie - Retirement System took tire position that tire surgery performed oniApplicant’s neck two weeks before tire hearing was not relevant to the issue of whether Applicant was disabled - at the time that she filed her application,(R 27) .Applicantobjected to preclusion of. evidence relating to neck surgery for tire reason that tire neck was injured in the incident alleged in her application.(R 28) The Retirement System conceded that Applicant’s application included a claim related to 'Applicant’s neck and that the application - encompasses claimed disabilities related to the lumbar spine, right shoulder, and neck.(R ‘ 30) ' ' . ’ I 3. .Applicant’s test!mony.is summarized as follows: I 3 Add. 10 (Page 5 of IS) She cannot do the job that she was doing at Bronx State. She can’t liftthe' • patients. Even though she had surgery,an the right shoulder, her,arm is still weak. She can’t bend over like she used to since the fusion. She ended up with sciatica in her leg and “they don’t know if it will go avvay.”(R 34) She had injections from Dr. Qureshi. He- had to give her an injectionin March (2009) because she was having so much pain.fR 34) She.is not supposed to lift more than 5 pounds because of the surgery, she had on her neck on November 22, 2009. She is hot supposed to bend too much and she. still.has the ' sciatica in her leg.(R 35) The duties of her job tiiat she.cannot perform are.the lifting, the bending,' and being on the alert.. Working as a therapy assistant with mental patients at tire psychiatric hospital you have to be on guard,(R 36) She worked.in a locked unit.(R 36) She was employed at the Bronx Psychiatric Facility'from June'2000 to September 24, 2007.; Job duties included seeming a safe environmenffor the clients, keeping-them ' out of.harms way, and helping them with their daily activities.. She was injured when a patient tried to’attack a social worker...Applicant was holding the patient’s hand and the patient swung so hard drat Applicant was thrown across the room. The patient weighed ' over 400 pounds and Applicant was a much smaller person at the time.' Applicant was ' supposed to prevent patients from attacking the other staff.(R 38) Applicant’s right shoulder-was pulled; she went down and hit tire floor really hard.fli 38)- She was sent to a . sick area where the doctors told her to.go home. She never went hack to work. She was, in pain that- night with the shoulder. Her regular doctor referred her to an orthopedic . doctor who did x-rays and gave her an injection but the shoulder never came back.(R 39) i 4 • (Page 6 of li> iShe had surgery' on her shoulder by Dr.-Freeman in 2008 and had months of physical therapy following the surgery,(R 39) She still had compiaints-and had an MR! performed at hTYU Presbyterian Hospital in December 2009. Tire MRI showed tears in the shoulder. Theproblem is both in her neck and her shoulder.-. She liad tliis horrible weakness in her right arm. The day after the November 22, 2009 surgery the horrible' weakness in her'ami was gone. Hie surgery she had two weeks before the.hearing has improved her conditio'n.(R 40) She still feels some tingling in her arm. The MRI showed that she had three discs, but only, one was ruptured. The surgery was only two weeks-'ago and she can’t say that, everything should .be gone by now. Tire right aim is feeling much,. better now after the surgery.(R 42) She does not think slie can go back to work. Mental Health Therapy. Aides provide direct services and support to adults diagriosedywith a mental illness, children and adolescents with 'serious emotional ' disturbances, and their families. The specific tasks performed are concerned with ' . providing a nurturing, caring, safe and supportive environment, as well as assisting- individuals in thedevelopment ofskills which will enable them to care for their- own • basic housing, vocational, educational, socialization, family life, recreational, arid-- nutritional needs. Techniques include being empathetic-and supportive. Tire aide is in’ almost constant face-to-face contact and communication with individuals’and their families in a wide variety', of residential and community environments. Illustrative’duties may include bathing and grooming individuals, encourages-and coaches individuals to participate in physical activities, exercise and athletic games, and assist in crisis and ’ ■ - ’ 4. 5 {Page ? o£ 13} emergency situations to protect the welfare of individuals, staff and others.(Job ■ Description', R 68-70) Eric K. Zitzmann, M.D., is a Board Certified Orthopedic Surgeon.' He conducted an independent medical evaluation of Applicant for the Retirement System on May 19, 2009. He reviewed Applicant’s medical records and conducted a physical .examination. Examination of Applicants cervical5'spine revealed good flexion and . extension with 50 degrees of flexion and 60 degrees of extension. .She had normal . rotation. SHe did have pain in the right suprascapular area on left lateral deviation and ho 5. pain on right lateral deviation. Tendon reflexes of the upper extremities were intact and motor power was intact: On examination of tire lumbosacral spine there was no palpable lumbosacral muscle spasm. Palpation of the back-revealed some tenderness atL5 and S1 • spinous processes. The sciatic nerve was non-tender: Straight leg raising was performed ' to 70 degrees bilaterally, at which point Applicant had hamstring tightness but no back pain. Hip-and knee range of motion were normal. Examination of tire right shoulder revealed'some mild rotator-cuff-tenderness. There was no AC joint tenderness. Dr. Zitzmann’s impression was that Applicant suffered a lumbosacral and-cervical strain and that the lumbosacral strain was superimposed on facet arthritis. He concluded that Applicant’s recentMRI showed only, mild disc bulges in her lumbosacral spine and one bulge,.which'is read-as minimal, in the cervical spine. - He.concluded that these findings are within normal limits andfhat disc bulges can be seen in a fair number of normal individuals and by themselves indicate no pathology. :He also concluded 'that Applicant’s right shoulder surgery has left her with no evidence'of impingement or AC joint i '6 Add (Page 3 of 13) tenderness or provocative tests for this problem. He also found that Applicant demonstrated good functional shoulder, neck, and low back range of motion and strength. He opined that Applicant’s accident ox September 24, 2007 'caused a right shoulder.sprain and tendinitis. Dr. Zitzmann states that Applicant is not permanently disabled and unable to perform her duties as a Mental Health Therapy Aide and that tire accident of September 24, 2007 produced a cervical and lumbosacral strain and -shoulder strain and tenosynovitis, which have subsided.(R 364) Dr. Zitzmann submitted a supplemental report after reviewing additional medical . records submitted to him by the Retirement System. The medical records reviewed included an IME report from, an examination performed by Dr. John'Mazella on September 18, 2008, an MRI of the right lumbosacral spine dated January 22, 2008, ah ■ MRI of Applicant’s cervical spine dated May 15, 2009, records of-an anterior lumbar interbody fusion at L4-L5, a discogram performed on May 16, 2010. and a note from Dr. Sheeraz Qureshi stating that Applicant requires a G6-C7 anterior cervical discectomy and fusion. Following a review' of the additional medical records Du Zitzmann stated that his \ original opinion that Applicant was not permanently disabled was unchanged.(R 354) • 6. Dial Faierman, M.D., performed arthroscopic surgery on Applicant’s right shoulder on June 25, 2008. The post-operative diagnosis was rigid should impingement syndrome, acromioclavicular arthrosis and anterior/superiorilabral type 1 tear.(R244) On September 11, 2008, Dr. Faierman reviewed x-rays of Applicant’s shoulder and stated his • impression that there was a well resected.distal clavicle noted with no fracture, 7 Add. 14 of 13)(Page 9 dislocations or destructive lesions.(R 231).,There is no medical opinion by Dr. Faierman that Applicant is permanently incapacitated for the performance of her duties. Ellen S. Ginsberg, M.D., treated Applicant on uumerous occasions between January 2008 and 0ctober;2OO8. Treatments included paravertebral/facet joint injections with Iidocaine and electricai nerve blockade.(R 250-260; 120) The record does not contain an opinion by Dr. Ginsberg that applicant.ÿ permanently incapacitated for the performance of duties. ' 7. ■ 8. Dr. Henry-iHaii, a chiropractor,' saw Applicant on several.occasions between December 7, 2007 and June 17, 2008. He treated Applicant for neck, back, and rightshoulder pain. In a report dated June.17, 2008, he stated -that Applicant is unable to work because she is awaiting right shoulder surgery.(It 124) Dr. Hall did not render.an . - opinion as to whether Applicant Is permanently, incapacitated for the performance of duties. ’ Applicant was seen by Richard Memoli, an orthopedic surgeon, on- ; January 7, 2008 on referral/from Dr. Henry Hall. Applicant’s complaints included pain in the right shoulder-up to her neck,' low back pain, and- left knee pain. Applicant was .referred by Dr. Memoli for. a right shoulder and cervical spine MRI. Dr; Memoli did not ' render-an opinion as to whether.Applicant is permanently incapacitated-for.the performance of duties. Applicant was referred back to the care of Dr. Henry' Hall for . general care and to continue her then present course of pain medications.(R308-311) Dr. John Mazella, a Board Certified Orthopedist, performed an independent medical evaluation of Applicant for the New York Workers’ Compensation 9. | 10. ! {Page 10 of 13) Board on-Mai'ch 14, 2008. Applicant complained of difficulty sleeping because of pain in her neck- and right shoulder, constant headaches,.and low.back pain. Dr. Mazella ■ performed a physical examination and concluded that -Applicant had a mild partial temporary orthopedic disability relating to her right shoulder. He also reported that Applicantsuffered a lumbar sprain/strain which had-resolved.(R 289-293) Dr. Mazella examined;Applicant again on September 19, 2008'. He also' reviewed Applicant’s medical . - records. At that time, Applicant complained that her shoulder pain had worsened since her shoulder surgery. - His diagnoses were: 1. Cervical strain/sprain without radiculopathv/resolved. 2. Lumbar strain/sprain without radiculopathy/resolved. 3. Status. post arthroscopic decompression with open distaliclavicle resection right shoulder June 26, 2008.-He concluded that Applicant had a moderate partial temporary orthopedic disability,(R 303) ' ■ II. ■ An electromyographic and nerve conduction study was performed on December 21, 2007. The'diagnosis was “bilateral lumbar.radiculopathy on L5/S1 level.(R 238) An MRI of Applicant’s' right shoulder was-perfonned on‘January 11, 2008. The impression reported was bicipital tenosynovitis and bursitis with a recommendation . that impingement syndrome be ruled out clinicalIy.(R;236) An MRI of Applicant’s , . lumbosacral spine was performed on January 22, 2008. The impression reported was “bulging disc and spond)dosis at L4/5.(R234) An MRI of Applicant’s cervical spine was performed on April 21, 2008. The impressions reported were straightened cervical lordosis,.sinus disease, and “C3-C4 through C6-C7 1-2- millimeter central disc herniations with cord impmgement.”(R 233) An electrodiagnostic study performed on June 10; 2009 9 Add. (Page II of 13) revealed evidence of left mild, to moderate and right borderline sensorimotor median- nerve neuropathy at the wrist (i.e.: carpel tunnel' syndrome). The-re.was no electrical evidence of right-cervical radiculopathy. Applicant was given a prescription for. bilateral • resting splint with instructions to use at night time and as needed during the- day.(R 314) A cervical discography was performed on Applicant on May 6, 2010. The diagnosis was ' cervical disc disease/cervical radiculopathy at the G6-G7 level.(R 368) 12. Dr. Sheeraz Qureshi performed an L4-L5 anterior lumbar interbody fusion on Applicant on January-14, 2010. The post-operative report for the procedure has a . diagnosis of “L4-L5 degenerative disc disease, lumbar spondylosis.”(R;474) Dr. Qureshi performed surgery on Applic-ant.on November 22, 2010 for a hemiated disc at C6-C7. The procedure performed was “anterior, cervical discectomy and .fusion C6-C7.”(R 365) There is no medical evidence that Applicant is 'permanently-incapacitated for the , performance of her duties as a result of either condition for’which Dr. Qureshi performed surgery. . ' . . 13. Dr. Carl Eugene Wilson is a Board Certified Orthopaedic Surgeon. He ■ conducted an independent medical:evaluation of-Applicant for the:New York State , , Insurance Fund on November 15, 2007. Applicant’s complaints at the-time were severe pain in the right shoulder and some low back pain, which is manageable and well relieved by Naproxen. A medical history was taken from Applicant but no medical records were • available for review. An examination of the lumbosacral spine was basically normal-with some.discomfort at full extension. Straight-leg lift was negative;at 90 degrees. Examination of die right shoulder- revealed some- mild anteriorfendemess. Abduction-. 10 (Page 12 ot 13) was painful at 140 degrees. Dr. Wilson’s diagnosis was: 1. Sixain right shoulder.1 2. Lumbosacral strain. Workability was stated as“the claimant has a mild temporary orthopaedic disability and restriction of workability, because of her right shoulder' problem. She presently cannot utilize her-right upper extremity for.extremely, heavy work activities or for overhead work activity.”(R 284-288) . . CONCLUSIONS OF LAW 1. ■ This application is governed by. RSSL Section 605. 2. 'The issue to be decided in this proceeding is whether Applicant is permanently incapacitated for the performance of duties as a Mental Health Therapy Aide. . ■ To be eligible for disability, retirement benefits petitioner must establish that she is permanently disabled from her regular job duties (see Matter.of Doran vN.Y. State & Local Police and Fire Retirement.Sys., 56 A.D3d 922 [2008];;Matter of Wilson v ■ New York State & Local Police and-Fire Ret. Sys.,53 AD3d 762[2008]). 4. '' An applicant for disability retirement benefits bears the burden of proof on all contested issues (sec Administrative Procedure Act sec. 306(1); Matter of.Myers v McCall; 2 AD3d 1250, [2003]). The Hearing Officer is authorized to-evaluate and resolve conflicting medical evidence and credit the opinion of one expert over that of ' another where tire credited expert provides an articulated, rational and fact based opinion founded upon a physical examination and review,of relevant medical, records and reports 3. 11 14 AD3d 927 [2005], Iv denied A NY3'd 709 [2005])! v 5. There is no conflicting medical evidence in the record. The.Application rhust be denied for failure to make a prima facie showing of permanent incapacity. There is no medical evidence that Applicant is permanently, incapacitated for the performance of any of the duties of Mental Health Therapy .Aide. .Applicant has undergone surgeries' to.her right shoulder, lumbar spine and cervical spine. However, there is no medical ; evidence that applicant is permanently,incapacitated for thc perfonnan.ce of duties as a result of the conditions for which the surgeries were performed. Applicant’s chief complaint prior to the cervical surgery, performed on November 22, 2010 was a “horrible weakness” in her right arm. Her own. testimony establishes that her right aim was much improved after, the surgery. She has had electrodiagnostic.studies and MRls which have not been interpreted by any medical expert to demonstrate a permanently disabling condition. To the extent that any inference of permanent incapacity, can be,drawn from Applicant’s testimony, or any ofihe medical records I credit the opinion of Dr. Eric Zitzmann that Applicant is.not permanently incapacitated for performance ofiherduties; • DETERMINATION ' Applicant has failed to meet, her burden of proving that she is permanently. incapacitated for tire performance of duty as a MentalHealth Therapy.Aide:Her ; . Application for Article 15 Disability Retirement is denied. c ■ Dated: June 16, 2011 L. Paul Kehoe 12 Add. 19 (Page i of 5) MATTER OF WILT [ADD. 20-24] £ NEW YORK STATE AND LOCAL-POLICE AND FIRE RETIREMENT SYSTEM In the Matter of the Application ' of •'ROBERT WILT ' Reg. No.:.0A85237-6- ■ ■ . H.C. No.; 07-0347 .' ’ Pursuant to Section 374 of- the Retirement and Social Security Law; for a Hearing and Redetermination " A hearing having been held in the above-entitled matter on November. 7, 2008, in Albany, New York, with the HONORABLE JAMES CANFIELD, presiding.as.Hearing Officer, and the applicant, ROBERT WILT, having ‘appeared. in person, and by? WARREN ROTH, ESQ.,' his Counsel, and the -.NEW. YORK STATE AND LOCAL POLICE AND FIRE RETIREMENT SYSTEM haying appeared by ROBERT;COUGHLIN, ESQ4 its Counsel, .by JENIKA CONBOY,; ESQ., ofFGounsei, and all of the evidence'taken and introduced having - been read and considered, .. This document constitutes the final determination of 'the Deputy Comptroller pursuant to the designationtof the'State Comptroller. • ' • , i ' ■ ' SUPPLEMENTAL FINDINGSOF FACT-- , 1. Dr. Kenny. Schwartz examined the applicant for the -Retirement'System.. He found that , the applicant injuries;,:at work especially the injury;on January 6: 2007-areithe cause of the applicant's.radiculopathy;and disability, . • NOW, after due -deliberation,. the Deputy Comptroller of"the. New/York. State and Local Employees’ Retirement System- accepts the remaining.; Findings and Conclusions .of the Hearing Officer. : Based upon the foregoing-Findings of Fact and Conclusions of Law, IT IS HEREBY DETERMINED,AND DIRECTED -that the aoplication of ROBERT WILT for ACCIDENTAL DISABILITY RETIREMENT benefits is APPROVED. , Dated at'Albany, New York, this 2 Aÿday. of January 2010. '. NEW YORK STATE AND.LOCAL POLICE AND FIRE RETIREMENT SYSTEM / - By & .Kevin F. Murray ’ÿ - ' ’ Deputy Comptroller 77 Add. 20 (Page 2 of 5) New York State and Local Retirement System In tlie Matter of the Application of Robert H. Wilt Reg. No. 0A85237-6 ■ HC No. 07-0347 Pursuant to Section 74 or 374 of the Retirement and Social Security. Law fora hearing and redctennination. , A hearing was conducted in .this matter before the'undersigned on November 7, 2008. Applicant was represented by Warren Roth, Esq. and the system was represented by Jenika Conboy, Esq. . Now, after due deliberation, including a review of the hearing transcript and the submitted exhibits, I, James B. Canfield, find and'decide as follows: Issues 1.. Was applicant’s occurrence of January 6, 2007 an “accident" as provided in RSSL Section 63(a)(1)? - ' 2. Is applicant’s permanent incapacitation the natural and proximate result of either the June 9,2006 or January'6, 2007 occurrences? - . ■ • Findings of Fact 1. The applicant served as a police officer in'the City, of Yonkers, New' York from ■August 13, 1999 to January 6, 2007. (Transcript, page 8j. 2. On January 6, 2007, while on patrol in'a marked police car, tire applicant and his partner were called upon to assist another police unit. (Transcript, page 8-9). 3. Upon his arrival, applicant observed that the first responding officers were placing the suspect under arrest. (Transcript, page 9). Applicant returned to his patrol car and then saw the suspect in the alleyway escaping from the first responding officers. (Transcript, page 10). 5. Applicant emerged from his patrol, car and'confronted the suspect, with applicant grasping'and tussling with the suspect, until the suspect seemed to capitulate and extended his arm to-be-handcuffed. (Transcript, page 10). 4. Add. 21 (Page 3 of '5) ¥ - 6. As applicant was handcuffing the suspect, the suspect “spun away,” and as applicant grabbed and gripped the suspect, the suspect pulled applicant down toward the ground, dragging applicant off the curb and into a fence. Thereupon other-officers placed the suspect under arrest (Transcript, pageTO). ' 7. The applicant was. extensively injured as a result, of, the occurrence, ultimately undergoing three surgeries and being unable to perform the duties of .a police : officer. (Report of Dr. Kenny A. Schwartz, M-:D. dated April 18, 2008, page 4).' 8. In an earlier incident, the applicant had been injured on June 9, 2006 while he was placing another suspect under- arrest,when he sprained his right knee and sustained a numbing sensation in his right arm and shoulder.-(Report of Dr. Schwartz,,dated April 18, 2008, page 1). • . . • 9, The applicant was incapacitated from his duties as a police officer as a result of . that occurrence from June 9, 2006 to August 2006. (Dr. Schwartz report, page I). - 10. The Retirement System had conceded that the June 9, 2006 occurrence was an “accident” as that term is used in ihe RSSL; - 11. The System further concedes that the applicant is permanently incapacitated for' ' the performance ofduti.es as a police officer (System's brief, page 2); 12. However the System's position is that although he is permanently incapacitated, applicant's disability was not the .'natural .and proximate result of an “accident” .sustained in. service. (System’s brief, page 2) because. the January 6, 2007 occurrence was not an “accident,” ' . ■ 13. Applicant’s Performance of Duty Disability. Application has been approved by the ■ System because applicant was - permanently incapacitated as the result of an . ■ . “injury” sustained in service oh January 6, 2007. 'ÿ ' ■ 14. Applicant’s 'first of two Tier 2 Accidental Disability Applications has been denied because the System has found .that applicant’s incapacity' for the, performance of duty’ was hot the result of the “accident” of June 9, 2006, because the applicant returned to full duty after, that accident ’ • 7 15. Applicant’s second Tier 2 Accidental Disability Application has been denied because the occurrence of January 6, 2007 was found not to be an “accident,” as that term is found in Section 363..RSSL. 2 Add. 22 (Page 4 of 5) Conclusions of Law l. The pivotal term “accident” is not defined in RSSL. However case law has settled upon its definition as being'"1...sudden, fortuitous in mischance, out of the ordinary and injurious in impact,” as well as an injury that occurs without an unexpected event as the1 result of an activity undertaken in the performance of ordinary employment duties, (Matter of Lichtenstein v. Board of Trustees, 57NY2dI010,457AD2d472). ‘ • 2. In McCambridee v. McGuire 62NY2d563, 479NYS2dl71; Covcl' v. NYS Employees Retirement System. 84AD2d902, 444NYS 2d766; Sciblia v. Regan • ■ 183AD1096, 583NYS2d680; and Pratt v. Regan, 6SNY2d746, 506NYS2d329 the Courts dealt with events that -were not considered a risk of the.work performed. ’ 3. In the incident of Janua-ry' 6, 2007 the suspect had seemingly surrendered and was being handcuffed when he suddenly and precipitously “spun away,” dragging the applicant to the ground and into a.: fence.- Such a reaction by. a suspect, who -is .virtually surrounded"bv-fonr uniformed police officers, cannot be considered-to be • ’ a reasonably-anticipated risk of the work performed by a police-officer.. , 4. The undersigned"draws the conclusion of law that the incident of January 6, 2007' which 'resulted in applicant’s injuries was “...a sudden, fortuitous in mischance, out of the ordinary and injurious in impact” event, and as such fits die -definition of “accident” as used, in Section 363RSSL. , 5. The suspect in the January 6, 2007 occurrence assaulted the applicant and under .Arnmann v. Comptroller "13AD3d858, applicant’s injuries received as a result of that assault constitute "an “accident”. " 6. 'Applicant’s permanent disability, was the natural and proximate result of the accident ofJanuary 6, 2007. 7. Applicant had recovered from.; the injuries sustained in the .June 9, 2006 occurrence, and his disability for purposes of retirement benefits are not the natural and proximate result of-that “accident”. Accordingly, the application of Robert H. Wilt for Accidental Disability Retirement arising out of the accident of January 6, 2007-is granted. The Application of Robert H. Wilt for Performance of Duty retirement behefifs- . - arising out of the accident of January. 6, 2007, is also granted, as being the natural and proximate result of an accident sustained in the sendee upon which his membership is based. . Add. 23 (Page S of 5) X The application of Robert H. Wilt for permanent disability benefits arising out of the accident of June 9,- 2006 is denied. Dated: May 11,2009 ItMJ JamesB. CaimeUi ■Bearing Offrbdr Exhibits Considered: System’s Exhibit 1 Designation of Hearing Officer System’s Exhibit 2 Application for Tier ] or 2 Disability 4/.19/07 System’s'Exhibit 3 '' Denial of 4/19/07 Application System’s Exliibit 4 .Application for Tier 1 or 2 Disability 4/26/09 System’s Exhibit 5 J Denial, of 4/26/07 Application System’s Exhibit 6 Incident Report re: 1/6/07 occurrence KT6 Exhibits offered by Applicant i 4 M 24