News

Workers’ Compensation & Disability Practice Group Success Highlights

March 25, 2016

Attorneys Warren J. Roth and Ryan K. Allen of the Workers’ Compensation & Disability Practice Group Score Double Victories, Securing Accidental Disability Retirement Benefits for Police Officers in Two Back to Back Decisions

Recently, members of the Workers’ Compensation & Disability Practice Group successfully litigated two different applications by police officers for Accidental Disability Retirement, commonly known as “Three-Quarters,” before the New York State & Local Retirement System.  These decisions establish important legal precedent in New York for civil service members who are injured in the line of duty, but then denied benefits because the Retirement System determined that they were not permanently disabled.

The first case involved a City of White Plains police officer injured while chasing a suspect. The Retirement System contended the officer did not prove his disability is permanent because there was a reasonably safe treatment to correct the condition. However, the alleged safe treatment was a lumbar fusion surgery. Warren Roth and Ryan Allen successfully advocated for the injured officer, compelling the finding that the surgery did not bear a reasonable chance of curing his back disability and enabling him to return to full work duties as a police officer.

In the second case, which involved a City of Yonkers police detective, the Retirement System similarly denied Three-Quarters benefits based on the theory that the officer should be forced to undergo lumbar fusion surgery. Once again, the Roth/Allen litigation team rebuked this flawed position. The decision found that even with surgery, the officer would not be able to return to his full duties as a police officer.

These two decisions galvanize the rights afforded to uniformed service members who place their personal safety on the line daily in order to fulfill their duties to protect the public.

Members of BM&M’s disability benefits practice group litigated a complex case before the New York State and Local Retirement System, which ended up in appeal before the Appellate Division Third Department.  The Appellate Division ruled in a rare split 3-2 decision.  Our client sustained serious orthopedic injuries after entering an unstable home during Hurricane Sandy while attempting to save a family.  Our client applied for an Accidental Disability Retirement, which could give him a significant annual boost in his disability pension.

Disability Practice’s Brief Leads to Split Panel In Appellate Division

Warren Roth, Jason Lewis, and Nicholas Switach with their handling of the application, hearings, petitions, and the brief to the Appellate Division, laid the foundation which was adopted by two dissenting justices, stating “we find that the circumstances of petitioner’s injury were of an extraordinary, urgent, and wholly unanticipated nature, and the resulting risks to him were beyond the scope of his anticipated duties, even given the potentially dangerous nature of his work as a police officer.”  Such a finding would grant our client’s application for Accidental Disability Retirement.

Coverage of this split decision was featured on the front page of the March 25, 2016 edition of the New York Law Journal.  A copy of this article is available at

http://www.newyorklawjournal.com/home/id=1202753134983/Split-Panel-Denies-Benefit-Boost-for-ExCop-Hurt-During-Sandy?mcode=1202617075062&curindex=0.

Due to the double dissent in the Appellate Division, there is a strong likelihood BM&M will be granted the right to appeal to the Court of Appeals.  A decision from the Court of Appeals may provide significant clarification on the meaning of an “accident” under the Retirement and Social Security Law.

Decision available at: http://decisions.courts.state.ny.us/ad3/Decisions/2016/521498.pdf