Labor & Employment Law

Light duty performed for more than two years sets standard for the purposes of evaluation for disability retirement

Light duty performed for more than two years sets standard for the purposes of evaluation for disability retirement
Matter of David D. Vicks v Hevesi, 45 A.D.3d 1036

Firefighter David D. Vicks was injured in the line of duty in September 1995.

He attempted to resume work as a full-time firefighter but could not because of his injuries. His last day of work as a full-time firefighter was November 24, 1995.

However, from January 16, 1996 through August 11, 1999 Vicks was assigned to perform ?modified/light duties.? He was absent from his ?light duty? assignment on numerous occasions for varying periods of time due to his injuries. In 2000, he applied for accidental disability retirement benefits and, in the alternative, performance of duty disability retirement benefits.

The Employees? Retirement System rejected his applications, concluding that although Vicks was permanently incapacitated from performing his full duties as a firefighter, he was not so incapacitated from performing his modified duties. In making its determination, the System relied on the provisions of 2 NYCRR 364.3 (b), which, in relevant part, provides:

?In the case of an applicant who . . . has been continuously assigned to light, limited or restricted duties for at least two years prior to [the filing of the application for accidental or performance of duty disability retirement benefits], . . . the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.?

Vicks conceded that he was capable of performing modified duties but argued that because he was out of work on numerous occasions due to his injuries he did not perform his modified duties ?continuously? for two years. Accordingly, he contended 2 NYCRR 364.3 (b) should not have been applied to him.

The Appellate Division rejected Vicks? theory ruling that the System?s application of this regulation in Vicks? case ?was not irrational, arbitrary or capricious.?

The court ruled that Vicks? ?assignment? of modified duties was indeed continuous for over two years even though his actual performance of these duties may have been interrupted at times and, therefore, the regulation was properly applied to him.

It should be noted that the standard applied with respect to ?continuously? performing light duty is consistent with the standard applied in Civil Service Section 71 Workers? Compensation Leave cases, i.e., the prerequisite for termination from a ?Section 71 leave? is based on ?cumulative absences.? In contrast, termination from a Civil Service Law Section 72 leave pursuant to Civil Service Law Section 73 requires ?continuous absence? while on ?Section 72 leave? for the appropriate minimum period of absence.

Full post as published by New York Public Personnel Law on May 12, 2008 (boomark / email).