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Police officer to receive full §207-c while simultaneously receiving SSDI benefits

By Harvey Randall, Esq.

Police officer to receive full §207-c while simultaneously receiving SSDI benefits
Matter of McCaffrey v Town of E. Fishkill, 42 A.D.3d 22

General Municipal Law §207-c(1) provides for the continuation salary payments to a police officer injured in the line of duty until such time as the officer is able to return to full duty or, in some instances, limited duty.

Town of East Fishkill police officer Jonathan R. McCaffrey was receiving benefits pursuant to §207-c when he applied for, and was granted, Social Security Disability Insurance [SSDI] benefits. Upon learning of this, the Town told McCaffrey that it would reduce the amount it was paying to him pursuant to §207-c by the amount he was receiving from the Social Security Administration as SSDI benefits.

The Appellate Division ruled that the Town could not do this because ?the statute provides for no such setoff and that, therefore, there is no authority for a town to do so.?

Although the Town could discontinue McCaffrey?s §207-c salary continuation benefits upon his retirement for disability or upon his attaining the age of mandatory retirement, it could not simply ?reduce? such payments as an offset to his SSDI benefits. According to the ruling, SSDI benefits do not constitute an accidental disability pension similar to the statutory allowance provided by Retirement and Social Security Law §§363 and 363-c. In the words of the court:

SSDI benefits are available only to persons totally disabled, i.e., who cannot perform even sedentary work. Thus, said the court, the SSDI program is not an ?accidental disability pension? similar to the pensions available under the Retirement and Social Security Law, as would be required to support a setoff or deduction pursuant to General Municipal Law §207-c(2),? citing Matter of County of Erie v Hevesi, 17 AD3d 967.

In the view of the Appellate Division, ?General Municipal Law §207-c is a statutory command that the Town continue to pay the salary of a disabled police officer despite the officer?s disability.? The Town was directed to pay to McCaffrey ?the amounts that were improperly withheld from his paycheck, retroactive to July 8, 2005,? together with statutory interest.

The Appellate Division commented that ?Whether it is fair or unfair for [McCaffrey] to receive both General Municipal Law §207-c payments and SSDI benefits is for the Legislature to decide.?

In contrast, in Farber v City of Utica, 97 NY2d 476, the Court of Appeals ruled that the employer may reduce the §207-a supplement it paid to a firefighter receiving a disability retirement allowance from the Retirement System by the amount of any cost-of-living [COLA] adjustments to the retirement allowance being paid by the System to the retired firefighter.[1]

In Farber the court ruled that the appointing authority ?may take into account the [Retirement and Social Security Law] Section 378 supplemental allowance, as a portion.

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[1] §207-a of the General Municipal Law provides that a disabled firefighter receiving a disability retirement allowance from the State Employees? Retirement System is to paid a supplement to his or her retirement allowance so that he or she will receive a total benefit equal the salary he or she would have received had he or she remained in the employer?s service until his or her mandatory age of retirement.

Full post as published by New York Public Personnel Law on January 21, 2008 (boomark / email).